A. What the Agreement Covers
Please read the following terms and conditions carefully. This Digital Banking Agreement and Disclosure (“Digital Banking Agreement”) contain terms and conditions governing use of digital banking services known as Digital Banking Services ("Digital Banking Services"). If I am using Digital Banking Services solely for business purposes, certain provisions of this Digital Banking Agreement will not apply to me because such provisions only apply to Timberline Bank’s (“Bank”) customers who establish accounts primarily for personal, family or household purposes ("Consumer Customers"). Digital Banking Services provides access to my Deposit Account(s), and any other Bank accounts via the Internet, and, for certain Digital Banking Services, via a Mobile Device that allows text messaging, or a mobile phone, mobile device, or wearable device equipped with an Internet web browser (see Section IV.C. below). This Digital Banking Agreement also includes certain disclosures required by the Electronic Funds Transfer Act ("Act") and Consumer Financial Protection Bureau (“Bureau”) Regulation E regarding Consumer Customer Deposit Accounts (see Section VI below). These Provisions apply to me if I am a Consumer Customer. By accepting this Digital Banking Agreement, I also understand I may be given an option to receive all the disclosures required pursuant to the Act or Regulation E in electronic form.
B. Review and Acceptance of Agreement
By utilizing Bank’s Digital Banking Services, I agree to the terms and conditions stated below and all terms, conditions and disclosures provided to me regarding these services and my Deposit Account(s). By maintaining my Deposit Account(s) with the Bank, I agree to these terms and conditions and accept them in full. These terms may be modified by Bank at the Bank’s discretion, and such notification will be disclosed to me. The Bank recommends that I print a copy of this Digital Banking Agreement for my records.
C. Commercial Access and Use of Digital Banking Services
If I am using Digital Banking Services for commercial purposes, Bank hereby grants to Company the non-transferable non-exclusive right to use Digital Banking Services to access account balance information and other financial data on a daily basis. An authorized signer for Company designated on its accounts maintained by Bank must accept this Digital Banking Agreement and may, at Company’s discretion, assign additional individuals (each an “Authorized User”)who are not authorized signers on Company’s accounts maintained by Bank but who may be able to access, use, and transact on such the Company’s accounts through Digital Banking Services. Company accepts, acting through one or more of its account authorized signers, responsibility for designating Authorized Users who can use Digital Banking Services and thereby access and transact on Company’s accounts maintained by Bank in accordance with the terms of this Digital Banking Agreement. Further, Company acknowledges and agrees that Authorized Users designated by Company, or Company’s account authorized signers, as having authority to use Digital Banking Services on behalf of Company and, with such designations, may be able to withdraw or transfer account funds between accounts owned by Company and other parties through Digital Banking Services. Company’s Authorized Users shall use Digital Banking Services under Company’s supervision and control. Company agrees that it shall be responsible for all Authorized Users’ compliance with the terms and conditions of this Digital Banking Agreement. Company agrees that Bank shall have no obligation to monitor any Authorized User’s access to and transactions on Company’s accounts, and Company shall (i) monitor any Authorized User’s access to and transactions on Company’s accounts, and (ii) indemnify and hold Bank harmless from any Authorized User’s access to and transactions on Company’s accounts. Bank shall be entitled to rely solely on authorization information provided by Company relating to Authorized Users, their designated authorized functions, and the accounts over which authority is granted. Company specifically acknowledges that it has no rights of ownership in Digital Banking Services.
D. Relation to Other Bank Agreements
My Deposit Account(s), Loan Account(s) or any other accounts accessed through Digital Banking Services continue to be governed by any applicable depository, loan, or other agreement. I understand that my execution of this Digital Banking Agreement does not alter any terms and conditions of other agreements governing my Bank accounts unless expressly altered herein. In addition, the use of Bank’s Site, as defined below, is governed by the "Terms and Conditions of Use" for the Site. The Bank Customer Privacy Policy Notice provides information required under the Bureau’s Regulation P concerning customer privacy, and I understand that Bank may initiate communications to me via mail, email, and short message service ("SMS") text messaging for any purpose within the limits of Bank’s Customer Privacy Policy Notice and this Digital Banking Agreement. I understand that these agreements and statements are available for my review at www.timberlinebank.com, and I acknowledge that I should read and understand these related agreements and statements before I use Digital Banking Services.
E. Compliance with all Laws
I AGREE NOT TO USE DIGITAL BANKING SERVICES TO INITIATE ANY TRANSACTIONS THAT VIOLATE ANY LAWS OF THE STATE OF COLORADO OR THE UNITED STATES. I understand that it is my responsibility to use Digital Banking Services in compliance with all applicable laws, rules and regulations, including, without limitation, any export controls, including, but not limited to my responsibility to comply with control by the United States of the export of products and information containing encryption technology. I acknowledge and agree that I must comply with such export control laws and I agree not to export or re-export any encryption technology related to or within Digital Banking Services to countries or persons prohibited under applicable law. By using the Digital Banking Services, I represent that I am not in a country where such export is prohibited. This paragraph shall not be construed to mean, and Bank hereby disclaims any such representation, that any content or use of the Digital Banking Services is appropriate or available for use in locations outside of the United States. Accessing the Digital Banking Services from locations where its contents or use is illegal is prohibited by Bank. If I choose to access the Digital Banking Services from locations outside the United States, I understand that I do so at my own risk and that I am responsible for compliance with any applicable local laws.
F. Definitions
In addition to those terms defined within the body of this Digital Banking Agreement, the terms listed below have defined meanings for the purposes of this Digital Banking Agreement:
"Account(s)" means the checking, savings, money market, certificates of deposit, and/or individual retirement accounts that I have established at Bank.
"Available Balance" means the balance in my Deposit Account after deducting (1) deposits that are not yet eligible for withdrawal under Bank’s funds availability rules, (2) debit card or other transactions that Bank is legally obligated to pay or has already paid out in cash, (3) other pending transactions such as Automated Clearing House ("ACH") transactions, (4) any funds that are subject to final payment, and (5) any holds on my Deposit Account, such as holds on funds to comply with court orders or other legal requirements.
"Bank" is the depository institution holding my accounts accessed and providing Digital Banking Services under this Agreement.
"Bill Payment Services," "Bill Payment," or "Payment(s)" means the digital or mobile services by which I direct Bank to debit my account(s) and transfer funds to a Payee.
"Business Day(s)" means any day excluding Saturday, Sunday and holidays on which banks located in the State of Colorado are closed for business.
"Check" means any written order to pay a specific amount of money drawn on, payable through or at, or processed by, a bank or other depository institution. If a check is sent or returned as an electronic image or as a Substitute Check, it is still considered a check.
"Consumer Customer" means a natural person who establishes a Deposit, Loan or other Account primarily for personal, family, or household purposes.
“Company” means any person or Organization that establishes a Deposit, Loan, or other Account for purposes other than personal, family, or household purposes.
"Debit Card" refers to my Bank ATM Card, Personal Debit Card, Health Savings Account Debit Card, or Business Debit Card.
"Digital Deposits" refers to Bank services such as Mobile Deposit and Remote Deposit Capture (“RDC”).
"Deposit Account(s)" means the checking, savings, money market, certificates of deposit, and/or individual retirement accounts that I have established at Bank.
"Electronic Funds Transfer" or "Transfer" means any transfer of funds initiated through Digital Banking Services for the purpose of ordering, instructing, or authorizing Bank to debit or credit any of my Deposit Account(s).
"I," "me," "my," and "myself" refers to each Bank Account holder and to each person who uses Digital Banking Services for that account with the Account holder’s permission.
"Loan Account(s)" means any loan or line-of-credit accounts that I have with Bank.
"Mobile Banking Services" means the Digital Banking Service that allows me to perform certain Digital Banking Services via my Mobile Device.
"Mobile Device" means a mobile telephone, tablet, wearable device, or other mobile device capable of sending and receiving SMS text messages and/or accessing the Internet via a web browser.
"Digital Banking Services" means the digital banking services provided to customers by Bank as described in Section II.
"Payee" means any individual, business, or other entity that I designate for transfer of funds or Bill Payment, and who Bank accepts as Payee.
"Schedule" refers to any document specifying rates, fees or transaction limits pertaining to the Account in question, including, but not limited to, a Truth in Savings, Time Certificate of Deposit, Confirmation of Time Deposit, or any schedule setting forth Bank’s fees, limits, or both.
"Site" means the Bank’s website accessible at www.timberlinebank.com.
"Substitute Check" means a paper reproduction of an original check with an accurate, legible image of the front and back of the original check, and that conforms to standards established by the Federal Reserve Board.
"Transaction(s)" means any action I initiate, request or conduct using Digital Banking Services, including but not limited to any Electronic Funds Transfers.
Additional definitions regarding Digital Deposit terms are contained in Section V (Digital Deposits).
Digital Banking Services may include:
Additional Business services may include:
A. System Requirements
Browser support is subject to change without notice, so Bank encourages users to configure browsers for automatic updates. Use the latest version of your browser for the most secure experience in Digital Banking Services.
Any browser not listed in the following table should be considered unsupported by Bank.
Supported Browsers
|
Browser |
Windows |
macOS |
|
Google Chrome (Current and previous two major versions) |
Recommended |
Recommended |
|
Mozilla Firefox (Current and previous two major versions) |
Supported |
Supported |
|
Microsoft Edge (Current and previous two versions) |
Supported |
Unsupported |
|
Apple Safari (Current and previous two versions) |
Unsupported |
Supported |
Digital Mobile Banking System Requirements
Mobile Device and operating system (OS) requirements are subject to frequent change. For this reason, Bank does not list specific supported devices or OS versions in these Terms and Conditions. I may contact Bank to determine which devices and OS version are currently supported.
PDF Reader Requirements
Bank recommends the most recent version of Adobe Reader available for desktop and mobile devices. If I choose to use a third-party PDF application, Bank cannot guarantee documents will appear as intended.
B. Security and Passwords; Additional Security Issues Regarding Internet Email and Mobile Banking Communications
I am responsible for maintaining the confidentiality of my login credentials, passwords, Secure Access Codes (“SACs”), and any other security information used to access Digital Banking Services. I understand that the Bank will never request my password or SAC through email, text message, or any unsolicited communication.
I acknowledge that internet email and mobile communications may not be secure, and that information transmitted through these channels may be intercepted or accessed by unauthorized parties. By using these communication methods, I accept these risks and agree that the Bank is not responsible for any loss resulting from my use of unsecured electronic communication channels. I agree to indemnify and hold Bank harmless from any loss resulting from my use of unsecured electronic communication channels.
C. Digital Banking Services Hours and Availability
Digital Banking Services are generally available 24 hours a day, 365 days a year. Notwithstanding the foregoing, Bank may, at its sole discretion, temporarily limit or suspend access to any Digital Banking Service in order to perform system maintenance, implement updates or enhancements, address technical or security issues, or for any other operational reason. Bank will use reasonable efforts to minimize the duration and impact of such interruptions but makes no guarantee regarding the availability of Digital Banking Services and may perform maintenance with or without prior notice.
A. Bill Payment Services
Bill Payment Terms and Conditions are available by navigating to Bill Pay on the Site and selecting the Terms and Conditions link.
B. Optional E-Statement Delivery; Electronic Mail ("Email") Communications from Bank; Optional Email Services
Company may elect to receive statements via electronic delivery by contacting the Bank and speaking with a Banking Specialist.
A. Funds Availability Policy Disclosure
General Policy
The Bank’s policy is to make funds from checks I deposit available to me on the first Business Day after the day the Bank receives my deposit. Once the funds are available, I may withdraw them in cash, and the Bank may use them to pay checks or other transactions posting to my account.
Business Days
For purposes of determining the availability of my deposits, a Business Day is every day except Saturdays, Sundays, and holidays on which banks in the State of Colorado are closed for business.
Deposit Cutoff Times
A deposit I make before the applicable cutoff time on a Business Day the Bank is open will be considered deposited that same day. A deposit I make after the cutoff time, or on a day the Bank is not open, will be considered deposited on the next Business Day the Bank is open.
The Bank’s deposit cutoff times are:
Examples:
Longer Delays May Apply (Exception Holds)
The Bank may delay the availability of funds deposited by check into my account for any of the following reasons permitted under Regulation CC:
If the Bank delays my ability to withdraw funds for any of these reasons, the Bank will notify me and tell me when the funds will be available. In most cases, my funds will be available no later than the seventh Business Day after the day of my deposit.
B. Information Regarding Digital Deposits
Should I desire to utilize Digital Deposits, I must request such services from Bank either in person, via telephone or via the applicable Digital Banking Service. Depending on the type of Digital Deposits I request and depending on whether I am a business or consumer Account holder, I understand that I must have specialized equipment and access via the internet to Bank's (or Bank's third-party vendor's) server-based Processing Software or access via Bank's (or Bank's third-party vendor's) mobile device Processing Software. Such equipment and Processing Software is required to enable me to generate Electronic Checks of Original Checks that comply with applicable Standards.
I understand that Bank retains the ability to either approve or deny my use of Digital Deposits in Bank's sole and absolute discretion. If Bank approves me to use the Digital Deposits, then by using such services, I agree to the Provisions set forth in this Digital Banking Agreement, I agree to pay any fees that Bank may charge in conjunction with such Digital Deposits (as set forth in Bank's Fee Schedule) and I understand and agree that the meanings of the defined terms set forth in this section are applicable both to this Digital Banking Agreement and the Documentation (as defined below) made available to me by Bank for use with the Digital Deposits. If any capitalized term defined below is used in Federal Reserve Board's Regulation CC (Vol. 12 of the U.S. Code of Federal Regulations, part 229) promulgated to comply with Check 21, as it may be amended, substituted for, or recodified from time to time ("Reg. CC"), then such term generally shall have the meaning assigned to it in Reg. CC. To the extent that any of the defined terms in this Digital Banking Agreement or in the Documentation use a term not defined herein but otherwise defined in Reg. CC, then such definition also incorporates the meaning assigned to the applicable term as set forth in Reg. CC. To the extent that any term used by Bank in providing me the Digital Deposits is a term that is not used or defined in this Digital Banking Agreement or in the Documentation, I and Bank agree to such term commonly used with regard to remote deposit capture services shall have the meaning as defined in Reg. CC if such term is so defined.
All other capitalized terms used that are not otherwise defined in this Digital Banking Agreement or in the Documentation shall have the meaning given to such term in Article 3 or Article 4 of the Uniform Commercial Code (as amended from time to time ("UCC")) effective in Colorado as adopted in Colorado Revised Statutes §§ 4-3-101, et seq., and 4-4-101, et seq.. In addition, I acknowledge that the Electronic Check of the Original Check submitted to Bank shall be deemed an "item" within the meaning of Article 4 of the Uniform Commercial Code, as adopted in the UCC and codified in Colorado Revised Statutes §§ 4-4-101, et seq.
C. Customer Representations and Agreements; Indemnity
If I meet, in Bank’s sole discretion, the conditions it has established for use of Digital Deposits to make deposits via Electronic Checks, Bank will provide internet access to its computer network and accept for deposit to my Deposit Account(s) the Electronic Checks of Original Checks for collection as allowed under this Digital Banking Agreement and the Documentation. However, I agree that I will not use Digital Deposits to submit any of the following:
Such Electronic Checks shall be deemed received by Bank for deposit based upon time of receipt as well as successful receipt of Electronic Checks that are complete, usable, and adhere to the Standards. If any Electronic Check is not complete, is not usable, or does not adhere to the Standards, the Electronic Check may not be processed by Bank, in which event my deposit will be adjusted, and notification provided.
I authorize Bank to accept transfers, checks and other items for deposit to my Account if they are made payable to, or to the order of, any one or more of us, whether or not they are endorsed by us. All checks and other items deposited to my Account via Digital Deposit must be endorsed payable to the order of "TIMBERLINE BANK for Digital deposit only," followed by my signature and Account number. All endorsements must appear on the back of the check or other item within the first 1-1/2 inches from the left side of the item when looking at it from the front, except that for Substitute Checks, endorsements that appeared on the back of the original check must also appear on the back of the Substitute Check.
While Bank may accept non-conforming endorsements, I will be responsible for any loss incurred by Bank due to the delay in processing or returning the item for payment. Bank may (but is not required to) refuse to accept a check or other item for deposit to my Account if 1) the check or other item is made payable to someone other than me or a joint Account holder with me, and 2) the check or other item is not endorsed to me or a joint Account holder with me. The Bank will not be liable to me for refusing such a deposit.
I understand Bank will process only my Electronic Checks that comply with the Standards and are Sufficient Image Copies, and Bank will use commercially reasonable efforts to present these Sufficient Image Copies for collection under the Check 21 framework. For information regarding Bank’s applicable depository cut-off times with regard to receipt of deposits via Digital Deposits, I should consult the Documentation made available to me for this purpose. The availability of funds for deposits via Digital Deposits is set forth in the Funds Availability Policy Disclosure section of this Digital Banking Agreement.
Should a Drawee Financial Institution return an item to Bank unpaid, the Bank will charge my respective Account for such returned item and may either (i) return the item to me, or (ii) re-present it to the Drawee Financial Institution before returning it to me. Items may be returned as Image Exchange Items, rather than Substitute Checks. Should a Drawee Financial Institution or other third party make a claim against the Bank or seek recredit with respect to any Electronic Check, Bank may provisionally freeze or hold aside a like amount in my Account pending investigation and resolution of the claim. Furthermore, I will be liable to the Bank for any loss incurred from the subsequent deposit of an original check that was deposited by me via Digital Deposit.
I agree that I will submit to Bank for deposit to my Account only Electronic Checks that are Sufficient Image Copies of Original Checks for deposit via Digital Deposits. No Electronic Check submitted by me to Bank represents an Original Check that has already been collected. I further agree that I will retain each Original Check that is Truncated through any Digital Deposits activity for a reasonable period of time, but in no event fewer than ten (10) Business Days from the date of deposit or such longer time as Bank may request from time to time with respect to any specific Original Check. I understand that in all cases, during the reasonable period of time described above, I am solely responsible for safeguarding all items I retain, as required or permitted by Digital Deposits from destruction, alteration or theft. Such Original Checks must be securely stored (e.g., in a locked cabinet) to prevent unauthorized access to them until they are destroyed, as provided for below.
Also, I understand that in certain instances Bank may request from time to time the Original Check to respond to claims made by the Drawer of the check. I agree to retrieve and produce for Bank the Original Check in question within seventy-two (72) hours of a written request by it. In the absence of retaining the relevant Original Check, I understand and agree I shall be solely responsible for the cost of any claim brought by the Drawer of the check that for resolution would reasonably require access to relevant Original Check and shall indemnify Bank in accordance with the terms of the "Digital Deposits Indemnity" given to Bank as set forth below. I understand and agree that no later than the sixtieth (60th) day following the date of deposit of an Original Check to the Bank, I will destroy the Original Check in a commercially reasonable manner that renders it unusable or otherwise unreadable (e.g., shredding). If I fail to destroy the Original Check within 60 days following the date of deposit, I agree I am responsible for any losses arising from the loss, theft or misuse of any Original Check.
I understand and acknowledge that Bank is relying on the truth and veracity of all Electronic Checks submitted for deposit via Digital Deposits by me to Bank, and I warrant that such Electronic Checks accurately reflect Original Checks that are, or at the time of the creation of the Substitute Checks, were, in my possession.
If I deposit such an Electronic Check, I give Bank the same warranties and indemnities that Bank, as a reconverting bank, would give under applicable law or regulation. I understand and acknowledge that all of the warranties deemed given by a depositor of a check to a bank under the UCC as applicable from time to time in the State of Colorado shall also apply to any Electronic Check of an Original Check, and also apply to any Substitute Check deposited by me the same as if such Electronic Check or Substitute Check were a paper check within the meaning of the UCC as adopted by the State of Colorado as Colorado Revised Statutes §§ 4-1-101, et seq. Accordingly, except to the extent that any warranties deemed given under the UCC are expressly superseded by the Check 21 Act or the Check 21 regulations, I understand that I am deemed to give Bank all the same warranties I would have given under the UCC for the deposit of an Original Check by transferring to Bank: (a) any Substitute Check; (b) an Image Replacement Document ("IRD") or other item purporting to be a Substitute Check; or (c) any Electronic Check that purports to contain a Sufficient Copy of an Original Check or a Substitute Check. Such warranties also include the following two (2) specific warranties regarding transfer and presentment:
WITH MY USE OF DIGITAL DEPOSITS, AND IN ADDITION TO ANYTHING ELSE SET FORTH IN THIS AGREEMENT, I ASSUME LIABILITY FOR, AND HEREBY AGREE TO INDEMNIFY, PROTECT AND HOLD HARMLESS BANK AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS ("BANK INDEMNITEES"), FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, COSTS, LOSSES, JUDGMENTS, EXPENSES, OBLIGATIONS, OR DAMAGES, INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS, OF ANY KIND OR NATURE ("DAMAGES") ARISING OUT OF THE USE OF, CONDITION (INCLUDING LATENT AND DEFECTS AND WHETHER OR NOT DISCOVERABLE BY ME OR BANK), OPERATION, OWNERSHIP, SELECTION, DELIVERY, INSTALLATION OR LICENSING OF ANY ITEM OF PROCESSING SOFTWARE OR EQUIPMENT. HOWEVER, SUCH INDEMNIFICATION SHALL NOT EXTEND TO ANY DAMAGE OR LOSS DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BANK.
In addition, I agree to reimburse Bank for all Damages it may incur regarding any Electronic Check, Substitute Checks or IRD deposited by me. Furthermore, if I provide Bank with an Electronic Check of a Substitute Check for deposit into my Account instead of an Original Check, I agree to reimburse Bank for all Damages it incurs because the Substitute Check resulting from the Electronic Check does not meet applicable Substitute Check Standards or causes duplicate payments. The amount of Bank’s loss which it may recover from me may be limited under the Check 21 Regulations.
D. Limitation on Liability
Bank will not be liable for any damage, loss or liability arising from the use of Digital Banking Services or the information and data which is reported or not reported on it, except to the extent that the damage, loss or liability arises from Bank’s own gross negligence or willful misconduct. Bank will not be liable for information or data that is inaccurate, incomplete or not current. Information and data available on Digital Banking Services are provided for reference purposes only. Bank’s liability to Company for any damages, loss or liability, regardless of form, shall not exceed the fees paid to Bank by Company for the six (6) months prior to the occurrence of the loss. Under no circumstances will Bank be liable for any incidental or consequential damages, or damages caused in whole or in part by the action or inaction of Company, an Authorized User, or an agent, director, officer, owner or employee of Company. Bank shall not be liable for any failure to perform its obligations under this Digital Banking Agreement or any damage, loss, liability or delay caused by accidents; strikes; fire; flood; earthquake; disasters; war; riot; equipment or system breakdown; electrical, mechanical or communication line failure; acts of God; government regulations or any cause which is reasonably unavoidable or beyond its control. Company agrees that the fees charged by Bank for the performance of Digital Banking Services shall be deemed to have been established in contemplation of these limitations on Bank’s liability. Without limitation to the foregoing, Company specifically holds Bank harmless from, and shall indemnify Bank against, any Damages or causes of action, of any nature or type, arising from or caused by an Authorized User designated by Company or its account authorized signers also being an Authorized User of Digital Banking Services for one or more other Bank account owners.
E. Security Procedures
I agree to the security procedures ("Security Procedures") used by the Bank in connection with Digital Deposits. Such Security Procedures offered by the Bank are described herein and in Documentation applicable to such services. As part of the Security Procedures, Bank may employ various authentication technologies, including, but are not limited to, use of Digital Banking Services User IDs, passwords and other additional authentication information (“AAI”) that Bank may require me to provide at Bank's sole discretion. Bank employs various security and authentication technologies to ensure that I, my employees, agents or Third Parties (if Company), are communicating directly with the Bank, and also to ensure that my computer or mobile device is communicating with a legitimate Bank computer. I am responsible for the establishment and maintenance of my internal procedures reasonably adapted to ensure the confidentiality and security of Security Procedures. I UNDERSTAND AND AGREE THAT I WILL BE RESPONSIBLE FOR MAINTAINING SECURITY AND CONTROL OVER ALL USER IDS AND PASSWORDS PROVIDED BY BANK AND SHALL USE SECURITY FOR SUCH ITEMS COMPARABLE TO THE SECURITY AND CONTROL I WOULD USE FOR CASH, BUT IN NO EVENT LESS THAN REASONABLE SECURITY AND CONTROL IN THE CIRCUMSTANCES.
If I, as well as my employees, agents or Third Parties (if Company), have reason to believe that any Security Procedure has or may have become known by unauthorized persons (whether or not employed by me), I shall immediately notify the Bank by telephone and confirm such oral notification in writing to the Bank within twenty-four (24) hours of the oral notification. The Bank will replace the Security Procedures in accordance with the Bank's standard security requirements related to Digital Deposits. To the maximum extent permitted by applicable law, I will be solely liable for all transactions initiated before the Bank has received such notification and has had a reasonable opportunity to act on such notification. The Bank reserves the right to change any or all of the Security Procedures offered and/or used at any time by giving oral or written notice to me. I agree that my use of the Digital Deposits after the Bank provides notice of such changes constitutes my acceptance of the new Security Procedures. I acknowledge that the purpose of Security Procedures is to authenticate the identity of the person initiating the action, not to detect errors in any transmission or content. The Bank is not agreeing to any Security Procedures or other procedure for the detection of errors. I represent that for Digital Deposits, I consider the Security Procedures to be commercially reasonable with respect to the size, type, and frequency of deposits I anticipate submitting.
With regard to me obtaining Digital Deposits services under this Digital Banking Agreement, I must comply with the personal computer, check scanner and mobile device hardware, software, and other requirements, as well as applicable Security Procedures, as set forth in this Digital Banking Agreement and as set forth in any Documentation or any supplemental information and/or instructions provided by the Bank. The Bank reserves the right as encryption technology develops to impose further reasonable requirements to maintain the appropriate level of security for Digital Deposits and transactions contemplated hereunder and I agree to abide by such requirements. Furthermore, I understand and acknowledge that if I do not implement and follow my own commercially reasonable hardware, software, physical access and physical storage Security Procedures regarding any of the data owned by me, which includes such data containing the sensitive personally identifiable information ("PII") of any individual, the security of my Digital Deposits and/or the data owned by me (including sensitive PII) may be compromised. I understand, acknowledge and agree that installation, maintenance and operation of my personal computer or mobile device (hardware and software) and related security procedures that I adopt and follow, including, but not limited to, data security protection, firewalls and anti-virus software, is my sole responsibility, and that I am solely responsible for securing, encrypting, protecting and otherwise safeguarding the data owned by me.
I understand, acknowledge and agree that the Bank is not responsible for any loss or damages resulting from any errors or failures of my personal computer, Mobile Device or data processing systems, including, but not limited to any personal computer or Mobile Device virus or malware attack (such as a keystroke logging program or similar malware), any attack by a person attempting or actually gaining unauthorized access to the data owned by me, or any Internet-related problems that may be associated with my access and use of Digital Deposits.
For avoidance of doubt, I understand, acknowledge and agree that all data provided by me to Bank (including, but not limited to, Electronic Checks or Substitute Checks retained on any processing equipment, Processing Software, or any other processing equipment or software (including my personal computer or Mobile Device) used by me in conjunction with Digital Deposits), and all data produced, compiled or otherwise provided by Bank to me, in any form or format, is my sole and exclusive property and copies thereof shall be provided to me at my request from time to time and at any time. Once such data owned by me is delivered by Bank to me, retrieved by me from Bank, or otherwise created as a by-product of a transaction between me and Bank and retained by me, such data owned by me is solely within my possession and control.
If I am a Company, then in the event of any security breach incident involving any potential or actual unauthorized access or acquisition of data owned by me (e.g. computer hacking, virus attack, or theft or loss of any equipment containing data owned by you), it is my sole responsibility to determine whether I have the obligation, under applicable law, to notify potentially affected individuals whose sensitive PII may have been compromised by the security breach incident. I bear the sole responsibility for any and all costs of complying with required data breach notifications to individuals, credit bureaus and/or governmental entities as required by applicable law, and any and all costs for credit report monitoring of fraud monitoring associated with such security breach incident.
If, despite my efforts, I suffer any damage or loss as a result of my failure to comply with my data security obligations, and regardless of whether such damage or loss results from the activities of me, or if a Company, my employees, agents, subcontractors or any unaffiliated Third Party, any such loss or damage shall be my sole responsibility.
If I am a Company and intend to make use of a Third Party to administer my Digital Deposits activities, I agree to notify Bank in writing, in a form that is acceptable to Bank, of the name of any Third Party whom I hire, employ, or to whom I delegate my duties or responsibilities under the Digital Banking Agreement, before that Third Party initiates any transaction or performs any obligation authorized or required under this Digital Banking Agreement. I agree that I, as the commercial Account holder, shall be solely responsible for all acts of any such Third Party. By using Digital Deposits, I agree to provide information, including financial information, which Bank may, in its sole discretion, require from time to time regarding me or any Third Party which I hire, employ, or retain in any manner, to administer Digital Deposits or assume any of my duties under the Digital Banking Agreement. I understand and acknowledge that because of the risks involved, the Bank may refuse, in its sole discretion, to provide Digital Deposits to me for any reason in its sole discretion, including if I or the Third Party retained by me does not meet the Bank’s qualification criteria. The Bank’s acceptance of any Third Party retained by me based on its qualification criteria is not a representation or warranty by it regarding the fitness of the Third Party's capabilities or financial condition, nor is such acceptance by Bank an endorsement of any Third Party's ability to perform the Third-Party services for me. I agree that I will not allow any Third Party to use Digital Deposits or to process Electronic Deposits to my Accounts without the Bank’s prior written consent.
F. Termination
The Bank may, in its sole discretion, terminate my Digital Deposits effective immediately if: (i) there is an occurrence of a material change in my Account activity or other risk analysis criteria as determined by Bank in its sole and absolute discretion; (ii) Bank at any time determines that I (or my Third Party) do not meet its risk or other qualification requirements; (iii) Bank discovers any willful misconduct (including, but not limited to, types of fraudulent activity) on my part or any other party with respect to Electronic Checks submitted for deposit by me using its Digital Deposits; (iv) I am in default of any terms of this Agreement where such default gives the Bank the right to terminate, immediately or otherwise, or close my Account; (v) I have not used Digital Deposits for a period of time deemed to constitute an inactive service by Bank (in its sole discretion); or (vi) I am in default of any terms of the Digital Banking Agreement or any other agreement with Bank. In any of these events, I agree that Bank’s sole obligation shall be to provide notice of termination of Digital Deposits to me, and that such notification will be reasonable if it is mailed to my statement mailing address immediately upon termination.
Either me or the Bank may terminate Digital Deposits, with or without cause, upon thirty (30) days written notice to the other of its intent to do so, sent to me at my statement address and sent to Bank at the address provided herein. In the event of termination of Digital Deposits, my rights and responsibilities as well as the Bank’s, shall continue through any applicable settlement period, including my responsibility to pay Bank for Digital Deposits and with respect to transactions processed prior to the effective date of termination. If Digital Deposits is terminated by the Bank, it may accelerate all amounts due and to become due, and I agree to promptly make full payment to Bank of all amounts due and amounts incurred by me through my use of Digital Deposits.
The following provisions apply to those Digital Banking Services, including, but not limited to, Mobile Banking Services, used to access Deposit Account(s) of Consumer Customers whose Deposit Account(s) are established primarily for personal, family or household purposes. I understand these provisions do not apply to me if I am a Company accessing Deposit Account(s) with Bank established for business purposes.
A. Transfers Generally
I understand all Transfers must originate from an Account on which I am a current signer. Bank reserves the right to refuse the acceptance of any particular Transfer for any reason.
B. Limits
Unless otherwise provided in any other agreements I may have with Bank, the maximum dollar limit for all Transfers within a 24-hour period is equal to the Available Balance in any Deposit Account(s) or may be another maximum amount set by Bank and communicated to me. If my Deposit Account does not have sufficient funds to complete a Transfer, Bank may refuse to conduct the Transfer. If Bank does complete the Transfer, I am responsible for any overdrafts or fees that are generated. I understand that federal limitations on the number of Transfers per each statement period applicable to money market and savings accounts per each statement period will apply, and the number of Transfers that I can make from such accounts will be limited. I should refer to Bank’s money market account and savings account disclosures or contact Bank’s Customer Service at 1-800-331-3757 for details on limitations.
C. Scheduling Transfers
I understand that detailed instructions for scheduling transfers, including any applicable cutoff times, are located in Digital Banking Services. The first payment of a recurring Transfer conducted through Digital Banking Services must be scheduled for a date that is a valid date for that month. Should subsequent months not include that date, then Bank will assume I mean to schedule a Transfer on the first day of the following month. For example, if the first monthly Transfer is scheduled for January 31, the second monthly transfer will not occur until March 1. If the first day of the following month is not a Business Day, then the Transfer may not be processed until the next Business Day.
D. Cancelling My Transfers
I understand that I cannot cancel an immediate Transfer from my Deposit Account(s) after it has been entered into Digital Banking Services and the information has been transmitted to Bank. In order to cancel future-dated Transfers, I must log into Digital Banking Services and follow the directions provided for cancelling Transfers. Although the easiest and most convenient way to cancel a Transfer is through logging into Digital Banking Services, I may request to cancel a future-dated Transfer by calling Bank’s Client Services Department at 1-970-256-8555, or writing to Bank Client Services Department at 649 Market Street, Grand Junction, CO. Bank must receive a cancellation request via telephone or in writing at least three (3) Business Days before the Transfer is scheduled. If I give a cancellation request via telephone, I must send Bank written confirmation of my request within fourteen (14) days after the date of my call. If I do not provide required notice of cancellation, Bank will not be liable for any Damages incurred by me if the Transfer is not cancelled. Bank is not responsible for any Transfers made before it has a reasonable opportunity to act on my cancellation notice.
E. Documentation
I will get a statement for each of my Deposit Account(s) which will reflect, among other things, all Transfers that have occurred during my monthly billing cycle. I will receive a statement at least quarterly for each Deposit Account, even if no activity has occurred during the time period covered by that statement.
F. Bank’s Liability for Failure to Complete a Transaction
If Bank does not complete a Transfer on time, or in the correct amount according to my instructions, Bank may be liable for my Damages up to the amount of the Transfer. Bank is not liable to me for any special, incidental, exemplary, punitive, or consequential damages of any kind. However, there are some exceptions to Bank’s liability. Bank will not be liable, for instance, if:
There may be other exceptions, in addition to those listed above, stated in any of Bank’s other agreements with me, or as permitted by law.
If any of the above circumstances occur, Bank will assist me if requested with reasonable efforts in taking appropriate corrective action to reprocess a Transfer that may not have been completed, or to correct any incorrect Transfer that has been processed.
G. My Liability for Unauthorized Use
I will notify Bank immediately if I believe that my User ID, Password, and/or AAI has been lost or stolen or used without my permission. I understand and acknowledge that the best way to minimize my loss is to call Bank immediately. I also understand that the unauthorized use of my User ID, Password, and/or AAI could cause me to lose all of the money in my Deposit Account, plus any amount available under my overdraft protection, if I do not notify Bank in a timely manner.
I understand that as a Consumer Customer, I will have no liability for unauthorized transactions if I notify Bank within sixty (60) days after the statement showing the transaction has been mailed to me or made available to me through Digital Statement Delivery (if I am enrolled in Digital Statement Delivery). If I do not tell Bank within sixty (60) days after the statement was mailed to me or made available to me through Digital Statement Delivery (if I am enrolled in Digital Statement Delivery), I may not get back any money I lost after the 60 days if Bank can prove that I could have stopped someone from taking the money if I had notified Bank in time. If a valid reason (such as a long trip or a hospital stay) kept me from notifying Bank, I understand that Bank may extend the time periods in its sole discretion.
For any of my Transactions processed through the Visa system, my liability limits will differ from those set forth above. For Transactions processed through the Visa system (for example, use of my personal Debit Card when no PIN is used), I understand that I will have no liability in accordance with each network’s respective policies regarding "zero liability" for unauthorized transactions if I promptly report the unauthorized transactions to Bank. For Visa Transactions, Bank may impose greater liability, to the extent allowed by law, if Bank reasonably determines that I was either negligent or fraudulent in the handling of my Digital Banking Services Transactions processed through Visa. Bank may reasonably determine that I was negligent or that I failed to exercise reasonable care, for instance, if I do not promptly report one or more unauthorized Transactions to Bank. This may include my delay for an unreasonable time in reporting unauthorized Transactions.
If I assert that an unauthorized Transfer may have occurred, or I believe my User ID, my Password and/or my AAI has become known to an unauthorized person, Bank may require me to sign a sworn statement/ affidavit to that effect.
If I have selected optional Mobile Banking Services, I understand that I am solely responsible for notifying Bank immediately in the event that my Mobile Device associated with the telephone number provided to Bank to register for Mobile Banking Services is lost, stolen, changed or destroyed. I understand that with regard to SMS text messages, failure to promptly notify Bank may result in my failure to receive important SMS text messages and/or the interception of such SMS text messages by unauthorized third parties. I may also incur SMS text messaging fees for such SMS text messages even if I do not receive them. I understand that Bank is not responsible for any costs, expenses, liabilities or damages that I incur as a result of my failure to receive an SMS text message, the interception of any SMS text message by an unauthorized or other third party, or my incurrence of SMS text messaging fees for SMS text messages I did not receive.
I UNDERSTAND AND ACKNOWLEDGE THAT IN ADDITION TO ANY DISCLAIMERS OR LIMITATIONS OF LIABILITY AS OTHERWISE STATED IN THIS AGREEMENT, BANK SHALL NOT BE LIABLE FOR DAMAGES ARISING FROM: (i) NON-DELIVERY, DELAYED DELIVERY OR WRONG DELIVERY OF ANY EMAIL COMMUNICATION THAT I WOULD NORMALLY ACCESS VIA THE WEB BROWSER ON MY MOBILE DEVICE OR OF ANY SMS TEXT MESSAGE NORMALLY SENT DIRECTLY TO MY MOBILE DEVICE; (ii) INACCURATE CONTENT IN ANY EMAIL COMMUNICATION THAT I ACCESS VIA THE WEB BROWSER ON MY MOBILE DEVICE OR IN ANY SMS TEXT MESSAGE SENT DIRECTLY TO MY MOBILE DEVICE; (iii) ANY ACTIONS RESULTING FROM THE INTENTIONAL OR UNINTENTIONAL DISCLOSURE BY ME TO ANY UNAUTHORIZED PERSON OF THE CONTENTS OF ANY EMAIL COMMUNICATION I ACCESS VIA THE WEB BROWSER ON MY MOBILE DEVICE OR ANY SMS TEXT MESSAGE SENT DIRECTLY TO MY MOBILE DEVICE; OR MY USE OR RELIANCE ON THE CONTENTS OF ANY SUCH EMAIL OR SMS TEXT MESSAGE FOR ANY PURPOSE.
H. Errors or Questions (Regulation E)
In case of errors or questions about Transfers, I should call Bank’s Client Services Department at 1-970-256-8555 or I should write to Bank at: Timberline Bank Client Services Department, 649 Market Street, Grand Junction, CO 81505. If I think my account statement is wrong or if I need more information about a Transfer listed on the statement, I must contact Bank immediately. I understand that Bank must be notified no later than sixty (60) days after the FIRST account statement on which the problem or error appeared was mailed or made available through Digital Statement Delivery (if I am enrolled in Digital Statement Delivery), and I must:
If I notify Bank via telephone, Bank may require that I send my complaint or question in writing within ten (10) Business Days. Bank may also require me to provide my complaint in the form of a sworn statement/ affidavit.
Bank will determine whether an error occurred within ten (10) Business Days after Bank receives notice from me and will correct any error promptly. If Bank needs more time, however, Bank may take up to forty-five (45) days to investigate my complaint or question. If Bank decides to do this, it will provisionally recredit (consumer customers only) my Deposit Account within ten (10) Business Days for the amount thought to be in error, so that I will have the use of the money during the time it takes Bank to complete its investigation. If Bank asks me to put my complaint or question in writing and Bank does not receive it within ten (10) Business Days, Bank may decide not to provisionally recredit my Deposit Account.
For errors involving new Deposit Accounts, Bank may take up to ninety (90) Business Days to investigate my complaint or question and up to twenty (20) Business Days to credit my Deposit Account for the amount I think is in error.
If a notice of error involves a Transaction processed through the Visa System, Bank will provide provisional credit within five (5) Business Days after I notify Bank instead of the usual ten (10) or (20) Business Days. Bank may, in its sole discretion, withhold providing this accelerated provisional credit, to the extent allowed under applicable law, if Bank believes that the circumstances of account history warrants the delay.
Bank will tell me the results within three (3) Business Days of completing its investigation. If Bank determines that there was no error, Bank will send me a written explanation. I may ask for copies of the documents that Bank used in its investigation. If Bank provisionally re-credited my account, Bank may take back the amount of any credit if it finds that an error did not occur.
I. Account Information Disclosure
I understand that Bank will disclose information to third parties about my Deposit Account(s) and the authorized Transfers:
A. Personal Information
I am aware and agree that the Bank, at its discretion, may record any and all information, instructions, or transactions relayed from my mobile device(s) to the Bank or through intermediaries and to the mobile device(s) from the Bank and/or from intermediaries and collect and store the information in a form and manner as deemed necessary and appropriate.
I acknowledge that in connection with my use of Mobile Banking Services, Bank and its affiliates and service providers may receive and share names, domain names, addresses, passwords, telephone and phone numbers, the content of messages, data files and other data and information provided by me, or from other sources in connection with the Bank’s Mobile Banking Services or software (collectively "User Information").
The Bank, and its affiliates and service providers, will maintain reasonable safeguards to protect the information from unauthorized disclosure or use, but reserve the right to use and disclose this information as reasonably necessary and as otherwise permitted by law, including compliance with court orders or lawful instructions from a government agency, to protect the personal safety of subscribers or the public, to defend claims, and as otherwise authorized by me. I agree not to use the Bank’s Mobile Banking Services and software in or for any illegal, fraudulent, unauthorized or improper manner or purpose. I further agree that my use of the Mobile Banking Services and software will be used in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, "spam," and import/export laws and regulations, including U.S. Export Administration Regulations.
Any transmission to Mobile Banking Services, including emails shall be deemed and remain the property of the Bank. Please do not use email to send the Bank communications which contain confidential information or require immediate attention. Please call 1-800-331-3757 or send written communications to:
TIMBERLINE BANK
ATTENTION: CLIENT SERVICES
649 MARKET STREET
GRAND JUNCTION, CO 81505
B. Charges and Fees
Unless otherwise agreed to by Bank, Company will pay the Bank for fees for this service and associated services (e.g. ACH, stop payments, wires) as set forth in Bank’s most current Rate and Fee Schedule, as may be amended from time to time. and that I may be subject to any other applicable fees related to any Transaction as set forth in any applicable agreement. Bank will automatically deduct fees related to the Transactions on the first business day of each month. If Bank decides to change the fees it charges in connection with Digital Banking Services, Bank will notify me at least thirty (30) days prior to the effective date of the change.
C. Contacting Bank
In addition to the electronic communication methods discussed in Section IV of this Agreement, I may also contact Bank with any questions or concerns by calling toll free at 1-800-331-3757. Bank’s specialists will be available to assist me during normal business hours. I may also call the Client Services department with my questions regarding general information about my Account(s), such as balance information, transactions conducted outside of Digital Banking Services, questions regarding interest earned, or other general questions or concerns.
D. Changes to Digital Banking Agreement; Termination of Digital Banking Services (including Mobile Banking Services)
Bank may add to, delete from, or change the terms of this Digital Banking Agreement at any time, and Bank will inform Company of changes to this Digital Banking Agreement when legally required. Further, Bank will attempt to inform Company of any material changes to this Digital Banking Agreement even if not legally required to do so. Without limitation to the foregoing, Bank may communicate changes to this Digital Banking Agreement by mail, email, or statement message. In all cases Bank will make the updated Digital Banking Agreement available on Bank’s Site. Company agrees that, by continuing to use Digital Banking Services after the date that changes to this Digital Banking Agreement are posted to Bank’s Site, such changes will be effective as to Company’s use of Digital Banking Services and any account transactions made by Company, its authorized signers, or its Authorized Users after that date, whether or not Company in fact accesses Bank’s Site or otherwise receives actual notice of any Digital Banking Agreement changes. If Company does not agree with a change to this Digital Banking Agreement, Company’s recourse shall be limited to discontinuing use of Digital Banking Services.
I understand that Bank reserves the right to change the Digital Banking Agreement at any time, and that Bank will mail by regular U.S. postal mail, or by email, notice to me at least twenty-one (21) days before the effective date of any change to my Deposit or Loan Account services that would result in increased liabilities for me, increased fees, a reduction in the types or available Transfers, or stricter limits on frequency or dollar amounts of Transfers, unless such prior notice is otherwise excused by law. I agree that Bank is not liable or otherwise responsible if I do not receive such notification via email because I have changed my primary email address and not informed Bank of such change. By using Digital Banking Services after any changes or amendments are effective, I am agreeing to be bound by such revised Digital Banking Agreement. I may review the most current version of this Agreement anytime at Bank’s Site.
Bank and I agree that I may terminate this Digital Banking Agreement and/or one or more of the Digital Banking Services or Mobile Banking Services that I have selected at any time with or without cause upon prior notice to Bank. To terminate this Digital Banking Agreement, I shall give notice via telephone by contacting one of Bank’s Client Services department at 1-970-256-8555, or by sending written notice to the Bank at 649 Market Street, Grand Junction, CO 81505.
To terminate any particular Digital Banking Service or Mobile Banking Service, I understand that I must give notice via telephone by contacting one of Bank’s Client Services Specialists at 1-970-256-8555, by sending written notice to the Bank’s Client Services Department at 649 Market Street, Grand Junction, CO 81505. I understand that Bank may, in its sole discretion, terminate this Digital Banking Agreement in its entirety or terminate one or more specified Digital Banking Services or Mobile Banking Services effective immediately, with or without cause. Bank will provide written notice to me before Bank terminates this Digital Banking Agreement or any Digital Banking Service or Mobile Banking Service for any reason other than abuse of the Digital Banking Services or Mobile Banking Services, or to prevent a loss.
I understand that the termination of this Digital Banking Agreement and/or any of the Digital Banking Services or Mobile Banking Services will not release me from any fees or other obligations incurred prior to the date upon which this Digital Banking Agreement or the particular Digital Banking Service or Mobile Banking Service is terminated, any fees assessed by Bank in the process of terminating this Digital Banking Agreement and/or any of the Digital Banking Services or Mobile Banking Services, or from my responsibility to maintain sufficient funds in my Accounts to cover any outstanding items originated via any Digital Banking Service or Mobile Banking Service.
E. Children Using Digital Banking Services
The safety and privacy protection of children is very important to Bank. Children should always ask their parent or guardian for permission before sending personal information to anyone online. I understand that only the parent or legal guardian of a child under the age of 13 has authority to access Digital Banking Services, even if the account has been established on behalf of that child. If I permit a child under the age of 13 to use Digital Banking Services, or give the child my User ID, Password, or my AAI, I understand that I am responsible for all activity the child initiates from or to any of my Accounts, even if he or she exceeds my authorization. I understand that I can contact Bank in accordance with Section VI.H. of this Digital Banking Agreement with any questions or concerns.
F. Bank Records and Data
I acknowledge that Bank may elect to record or otherwise document information and email messages entered via Digital Banking Services for record keeping purposes, and I authorize Bank to record such information. Bank’s records kept in the regular course of business will be presumed to accurately reflect the contents of my instructions to Bank, and in the absence of manifest error, will be binding and conclusive.
G. Bank’s Use of Third-party Service Providers
Bank’s ability to provide certain of the Digital Banking Services depends on its ability to provide access to third-party networks. For details regarding Bank’s safeguarding of my personal information, I should refer to Bank’s Customer Privacy Statement available at Bank’s Site. In the event that Bank determines, in its sole discretion, that it is unable to provide third-party network access, Bank may discontinue the related Digital Banking Services or may provide the Digital Banking Services through alternate third-party networks. I understand that Bank shall have no liability for the unavailability of access during any transition period and shall give me written notice of any Digital Banking Service involving Transfers to or from my Deposit Account(s) being discontinued at least twenty-one (21) days in advance of such termination, unless such prior notice is otherwise excused by law.
H. Bookmarking and Linking
I understand that I may create a bookmark in my web browser to the Digital Banking Services page. I may not create any link to Digital Banking Services without the written approval of Bank, including, without limitation, a link on a publicly accessible website. The Bank may establish links between Digital Banking Services and other services operated by third parties. The Bank has no restraint over other third-party services or the contents therein. The existence of any such links shall not constitute an endorsement by the Bank.
I. Disclaimer of Warranties
I understand that Bank and its third-party Service Providers cannot and do not make any representation or warranty: (i) that I will have continuous or uninterrupted access to the Digital Banking Services or the Mobile Banking Services or any of its information, content or functions; (ii) that the Digital Banking Services or the Mobile Banking Services will operate on a continuous or uninterrupted basis; or (iii) that any information, content or functions will be error-free. BANK AND ITS THIRD-PARTY SERVICE PROVIDERS PROVIDE THE DIGITAL BANKING SERVICES AND ALL INFORMATION AND CONTENT DELIVERED BY OR THROUGH THE DIGITAL BANKING SERVICES TO ME "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. BANK AND ITS THIRD-PARTY SERVICE PROVIDERS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, PERFORMANCE, ACCURACY, AVAILABILITY, CONTENT, FUNCTION, ACCESSIBILITY, NON-INTERRUPTION, NONINFRINGEMENT, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. BANK AND ITS THIRD-PARTY SERVICE PROVIDERS ALSO DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, RELATED TO ANY ADVERTISEMENTS OR WEBSITES IN CONNECTION WITH THE DIGITAL BANKING SERVICES. I UNDERSTAND THAT MY SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NON-PERFORMANCE OF THE SERVICE (INCLUDING ANY SOFTWARE OR OTHER MATERIALS SUPPLIED IN CONNECTION WITH THE SERVICE) SHALL BE FOR BANK TO USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM AND ADJUSTMENT OR REPAIR OF THE SERVICE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO ME. I MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
J. Exclusion of Damages; General Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR HEREIN, BANK AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, AGENTS, LICENSORS AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONSULTANTS AND AGENTS, SHALL NOT BE LIABLE TO ME OR TO ANY OTHERS FOR DAMAGES IN EXCESS OF MY ACTUAL LOSSES OR DAMAGES UP TO THE AMOUNT OF THE TRANSFER DUE TO BANK’S FAILURE TO COMPLETE A TRANSFER. BANK WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF SUBSTITUTE GOODS OR SERVICES), WHETHER CAUSED BY THE EQUIPMENT AND/OR THE SERVICES, NOR WILL BANK BE RESPONSIBLE FOR ANY DIRECTOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING IN ANY WAY OUT OF THE INSTALLATION, USE OR MAINTENANCE OF MY EQUIPMENT. THE DIGITAL BANKING SERVICES ARE PROVIDED "AS IS." I UNDERSTAND THAT BANK DOES NOT MAKE ANY WARRANTIES CONCERNING THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ME. I MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
K. Indemnification
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, I AGREE TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS BANK AND ITS PARENTS, AFFILIATES, SUBSIDIARIES, AGENTS, LICENSORS AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONSULTANTS AND AGENTS, FROM AND AGAINST ALL DAMAGES, CLAIMS, LIABILITIES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BROUGHT BY ANY PERSON ARISING FROM OR RELATING TO MY ACCESS AND USE OF THE DIGITAL BANKING SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ALLEGING FACTS THAT IF TRUE WOULD: (i) CONSTITUTE A BREACH BY ME OF THIS DIGITAL BANKING AGREEMENT; (ii) CONSTITUTE INFRINGEMENT, MISUSE OR MISAPPROPRIATION OF INFORMATION, DATA, FILES OR OTHER MATERIALS SUBMITTED BY ME TO THE DIGITAL BANKING SERVICES; (iii) CONSTITUTE FRAUD OR MALICIOUS CONDUCT BY ME; (iv) CONSTITUTE A VIOLATION BY ME OF ANY LAW OR RIGHTS OF A THIRD PARTY; (v) CONSTITUTE A CLAIM FOR WHICH I HAVE AGREED TO PROVIDE INDEMNIFICATION ELSEWHERE IN THIS DIGITAL BANKING AGREEMENT; OR (vi) CONSTITUTE A CLAIM FOR DAMAGES FOR WHICH I HAVE AGREED ELSEWHERE IN THIS DIGITAL BANKING AGREEMENT THAT BANK IS NOT RESPONSIBLE.
L. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the law of the state of COLORADO, without regard to the conflict of laws thereof, and to the laws of the United States.
M. Venue
Any disputes arising from the use of the Bank’s Mobile Banking Services shall be exclusively subject to the jurisdiction of any federal or state court located in the State of COLORADO.
I acknowledge that I am responsible for complying with all terms of this Digital Banking Agreement and the terms governing any Deposit Account(s), Loan Account(s) or any other Account(s) which I access using Digital Banking Services.
BY CLICKING ON THE "SUBMIT" BUTTON ON THE "TERMS & CONDITIONS" SCREEN, I AGREE THAT I HAVE READ AND UNDERSTAND THIS AGREEMENT, THAT I ACCEPT THIS DIGITAL BANKING AGREEMENT AND ITS ADDENDUMS WITHOUT MODIFICATION, AND THAT I WILL BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS DIGITAL BANKING AGREEMENT AND ITS ADDENDUMS JUST AS IF I SIGNED THE AGREEMENT. FURTHERMORE, I UNDERSTAND THAT BY USING DIGITAL BANKING SERVICES I AGREE TO THE TERMS AND CONDITIONS STATED IN THIS DIGITAL BANKING AGREEMENT AND TO SUCH TERMS AND CONDITIONS AS THEY MAY BE AMENDED IN THE FUTURE. IF I DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS DIGITAL BANKING AGREEMENT AND ITS ADDENDUMS, I UNDERSTAND THAT I SHOULD NOT CLICK ON THE "ACCEPT" BUTTON ON THE "SIGN UP FOR DIGITAL BANKING" SCREEN AND THAT I SHOULD NOT USE DIGITAL BANKING SERVICES.
This ACH SYSTEM AGREEMENT (“ACH Agreement”) is made and entered into on the date Company electronically accepts the terms and conditions of this ACH Agreement.
Company agrees that upon Bank’s approval of application, Company will be bound by use of the ACH services governed by the terms and conditions of this ACH Agreement. This ACH Agreement outlines the terms for using ACH services as part of the broader Digital Banking System Services and is subject to all terms and conditions included in, or referenced by, the Digital Banking Agreement.
ACH TERMS AND CONDITIONS
1. Type of Entries. Bank will transmit debit and/or credit Entries initiated by Company to the ACH Network as provided in the National Automated Clearing House Association (“NACHA”) Operating Rules (the “ACH Rules”) and this ACH Agreement. As used in this ACH Agreement, the following are most commonly allowable ACH Standard Entry Class Codes (“SEC”) approved for use by Company and not an all-inclusive list:
CCD – Corporate Credit or Debit
Either a credit or debit where funds are either distributed or consolidated between corporate entities. May have one addenda record attached (“CCD+”)
PPD - Prearranged Payment and Deposit
Direct Deposit - The transfer of funds into a consumer's account. Funds being deposited can represent a variety of products, such as payroll, interest, pension, dividends, etc.
Direct Payment - Preauthorized payment is a debit application. This includes recurring bills that do not vary in amount -- insurance premiums, mortgage payments, charitable contributions, and installment loan payments or standing authorizations where the amount does vary, such as utility payments.
The above SEC Codes are the most commonly used and not an all-inclusive list.
All entries initiated by the Company will be authorized and submitted in accordance with the requirements of the ACH Rules and Appendices to the rules, as amended from time to time.
2. ACH Rules. Company agrees to comply with and be bound by the current ACH Rules in existence which may be amended from time to time. The duties of Company set forth in the ACH Agreement in no way limits the requirements of complying with the ACH Rules. Any fines or liabilities imposed against Bank for a violation of the ACH Rules caused by an action and/or inaction of Company may be assessed against Company. Costs associated with ACH Rules publications and/or association membership will be the responsibility of Company.
3. Compliance with United States Laws and Regulations. Company acknowledges that it will not generate transactions that violate the laws or regulations of the United States. This includes but is not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”). It shall be the responsibility of Company to obtain information regarding such OFAC enforced sanctions. (This information may be obtained directly from the OFAC Compliance Hotline at 800-540-OFAC or from the OFAC’s home page site at https://ofac.treasury.gov/). Company agrees that the performance of any action by Bank to debit or credit an account or transfer funds otherwise required by the ACH Rules is excused from the performance of such action to the extent that the action is inconsistent with United States law, including the obligations of the Bank under OFAC or any program administered by the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). Company agrees generally and warrants to Bank that all actions by Company contemplated by the ACH Agreement, including the preparation, transmittal, and settlement of Entries and payments orders, shall comply in all material respects with United States laws, regulations, regulatory guidelines and guidance, and official commentaries, including without limitation all such regulations, guidelines, and commentaries issued by the Board of Governors of the Federal Reserve and the Federal Financial Institutions Examination Council (“FFIEC”).
4. Underwriting. Company approval for use of this Service may be subject to underwriting criteria established by Bank from time to time. If Bank requires underwriting criteria to approve use of this Service, Bank will communicate to Company the nature and content of that criteria and the information Company will be required to provide to Bank. Company agrees to provide Bank such financial, business, and operating information as Bank may reasonably request in connection with Bank’s underwriting and approval process.
5. Authorizations. Before Company’s initiation of the first debit or credit Entry to a Company’s account, Company will obtain a proper authorization in accordance with the ACH Rules and US laws. An authorization agreement must be readily identifiable as either an ACH credit or an ACH debit authorization and must clearly and conspicuously state the terms of the authorization in order that the Consumer Customer or Company understands the authorization to which he or she is agreeing. All debits to Consumer Customer accounts must be authorized by the Consumer Customer in writing. For debit Entries, Company must provide the Consumer Customer with evidence of the authorization and information regarding the manner in which authorization may be revoked. Company, upon request, must present a copy of the Company’s authorization to Bank within 5 Business Days. Company must retain the signed or authenticated authorization for a period of two calendar years following the termination or revocation of the authorization. Company will initiate no Entry after the termination or revocations of a Consumer Customer’s authorization.
The Following table shows how the authorization must be obtained for the allowable SEC Codes to use to debit/credit a Consumer Customer or Company’s account:
| SEC Code | Debit/Credit | Authorization Method |
| PPD | Debit or Credit | Document signed by individual |
6. Pre-Notifications. If Company chooses to originate non-dollar pre-notifications Entries to verify the accuracy of routing and account numbers, it agrees not to initiate live dollar Entries until at least 6 Business Days following the settlement date of the pre-notification Entry. Pre-notifications will be provided to Bank in the format provided in the ACH Rules. If Company receives notice that a pre-notification has been rejected or returned, Company will research the problem and make any necessary corrections before transmitting another Entry. Pre-Notification transactions are not required to be submitted prior to the submission of a live transaction. However, it is the policy of the Bank to encourage the Company to submit pre-notifications on all new ACH transactions at least six (6) Business Days prior to the submission of a live transaction. If Company’s pre-notification record is rejected by a receiving financial institution and Company is so notified, Company can correct the reason for rejection and resubmit another pre-notification record and wait the prescribed six (6) days before submitting entries for any amount.
7. Resubmission of Pre-Notification. If Company’s pre-notification record is rejected by a receiving financial institution and Company is so notified, Company can correct the reason for rejection and resubmit another pre-notification record and wait the prescribed six (6) days before submitting entries for any amount.
8. Notifications of Change. Bank will notify Company or Corrections Entries (“COR”), which are commonly referred to as Notification of Change (“NOC”) Entries, received no later than 2 Business Days after the settlement date of the NOC. Company agrees to make the changes submitted within 6 Business Days of the receipt of the NOC information or before the next “live” Entry, whichever is later. If the NOC is incorrect, Company will generate a Refused NOC and deliver it to Bank within 15 days.
9. Transmission of Entries and Security Procedures. Company will transmit all Entries to Bank on or before the deadlines described on Schedule A to this ACH Agreement. Company will conform all Entries to the format, content, data encryption, and other specifications contained in the ACH Rules. Company authorizes Bank to transmit all Entries received by Bank from Company in accordance with the terms of this ACH Agreement and to credit or debit such Entries to the specified accounts. Company is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions. Company warrants that no individual will be allowed to initiate transfers in the absence of proper supervision and safeguards and agrees to take reasonable steps to maintain the confidentiality of the Security Procedures and any passwords, codes, security devices and related instructions provided by Bank in connection with the Service.
10. Audit and Review. Company agrees, upon reasonable notice by Bank, to permit Bank to audit, inspect, and review its policies and processes for purposes of ensuring the Company’s compliance with this ACH Agreement, the ACH Rules, and applicable laws and regulations. Company acknowledges that Bank may from time to time require that Company develop and adopt internal controls and processes related to ACH origination as mandated by Bank as a condition to Bank’s agreement to continue providing ACH Origination Services to Company.
11. Bank Obligations. In a timely manner and in accordance with the ACH Rules, Bank will process, transmit, and settle for the Entries received from Company which comply with the terms of this ACH Agreement, including the Security Procedures. Bank shall have no obligation to transmit Entries if Company is in default of any of its obligations under this ACH Agreement, including any obligation to pay Bank.
12. Warranties. Company certifies to Bank all warranties Bank is deemed by the ACH Rules to make with respect to Entries originated by Company. Without limiting the foregoing, Company warrants and agrees that (a) each Entry is accurate, is timely, has been authorized by the party whose account will be credited or debited, and otherwise complies with the ACH Rules; (b) each debit Entry is for the sum which, on the settlement date with respect to it will be owing to Company from the party whose account will be debited, is for a sum specified by such party to be paid to Company, or is a correction of a previously transmitted erroneous credit Entry and (c) Company will comply with the terms of the Act and Regulation E, if applicable, or UCC Article 4A, if applicable, and shall otherwise perform its obligations under this ACH Agreement in accordance with all applicable laws and regulations. Company shall indemnify Bank against any loss, liability, or expense (including attorney fees and expenses) resulting from or arising out of any breach of any of the foregoing warranties or agreements.
13. Credit Entries Subject to Article 4A (Corp. to Corp. Credits). (1) Credit given by the Receiving Depository Financial Institution (“RDFI”) to the Receiver with respect to such an entry as provided in Section 4.4.1 of the ACH Rules is provisional until the RDFI has received final settlement through a Federal Reserve Bank or otherwise has received payment as provided in Section 4A-403(a) of Article 4A, and (2) if such settlement or payment is not received, the RDFI shall be entitled to a refund of the amount credited from the Receiver, and the Originator shall not be deemed to have paid the Receiver the amount of the entry.
14. Delivery of Input Data. Company will deliver to Bank the computer input for entries on a schedule agreed upon by Company and Bank which shall be no later than 4:00 PM MT, prior to effective date of input received from Company. See below for submission windows/deadlines.
i. Two-day transactions (recommended): File must be submitted no later than 4:00 PM MT, two Business Days prior to effective date.
ii. One-day transactions: File must be submitted no later than 4:00 PM MT, one Business Day prior to effective date.
iii. Same-day transactions. Transaction limits are determined by NACHA and may be revised from time to time. Company shall contact Bank with any questions regarding current limits. File must be submitted no later than 11:30 AM MT, on effective date.
15. Data Retention. Company shall retain data on file adequate to permit remaking of Entries for one calendar year following the date of their transmittal by Bank as provided herein and shall provide such data to Bank upon its request. Company is responsible to retain all items, source documents and records of authorization in accordance with the ACH Rules.
16. Provisional Credit. Company acknowledges that the ACH Rules make provisional any credit given for an Entry until Bank crediting the account specified in the Entry receives final settlement. If Bank does not receive final settlement, it is entitled to a refund from the credited party and the originator of the Entry shall not be deemed to have paid the party.
17. Form and Format. Bank shall notify Company whether Entries shall be in the form of balanced or unbalanced files. If Bank requires a balanced file, then Bank shall control when and where offset Entries occur. If Bank requires that Entries shall be in the form of an unbalanced file, then this means an Entry contains only the originating items for that Entry without any corresponding offset or settlement transactions.
Credit Entries. Bank reserves the right to require that Company pay Bank in immediately available funds at the time of transmittal or at any time prior to settlement the amount of each credit Entry submitted by Company.
Debit Entries. Bank shall on the applicable Settlement Date credit the account with the amount of each debit Entry transmitted to Bank. In the event any Entry is returned in accordance with the ACH Rules by a RDFI and has provided credit, Company shall, upon demand, repay Bank the amount of the Return Entry.
Entry Settlement. Company shall provide Bank with immediately available funds at the time of submission on each Settlement Date sufficient to pay all Entries initiated by Company which are to be settled on that date. Company hereby authorizes and instructs Bank to make deposits, withdrawals, and transfers to and from Company’s Accounts as appropriate or necessary in connection with any of the ACH services provided by Bank under this ACH Agreement. Notwithstanding anything in the ACH Agreement to the contrary, Bank reserves the right to require that sufficient collected funds be in Company’s Accounts prior to the time any Entry is processed by Bank under this ACH Agreement.
18. Pre-Funding. Bank requires Company to pre-fund an Account maintained at Bank prior to the Submission Date of the ACH file.
19. Settlement. Company will maintain an Account with Bank at all times during the term of this ACH Agreement and until the period for Return Entries has elapsed. Company will maintain in the Account immediately available funds sufficient to cover all credit Entries originated and returns of debit Entries originated. Company authorizes Bank to debit its Account in the amount of each file.
20. Settlement Discrepancies. The periodic statement issued by Bank for Company’s Account will reflect Entries credited and debited to Company’s Account. Company agrees to notify Bank within a reasonable time not to exceed 30 calendar days (except where applicable law provides a 60-calendar day review period) after Company receives a periodic statement of any discrepancy between Company’s records and the information in the periodic statement. Company and Bank agree to cooperate with the other party in performing loss recovery efforts in the event either party may be liable to the other for damages.
21. Cancellation or Amendment of Entries. Company shall have no right to cancel or amend any Entry/File after receipt of Entry/File by Bank. However, Bank shall use reasonable efforts to act on a request by Company to cancel an Entry/File before transmitting it to the ACH Network or processing it as an on-us Entry. Bank shall have no liability if it fails to affect the cancellation.
22. Rejection of Entries. Bank may reject any Entry/File, including an on-us Entry, which does not comply with the requirements of Sections 2 and 3 of this ACH Agreement and may reject any Entry if Company is not otherwise in compliance with the terms of the ACH Agreement. Bank shall notify Company of such rejection no later than the Business Day such Entry would otherwise have been transmitted by Bank to the ACH Network or, in the case of an on-us Entry, its effective Entry date. It shall be the responsibility of Company to remake any Entries or files rejected by Bank or the ACH Operator.
23. Return Entries. Bank shall notify Company of the receipt of a Return Entry from the ACH no later than 1 Business Day after the Business Day of such receipt. Bank shall have no obligation to re-transmit a Return Entry if Bank complied with the terms of this ACH Agreement with respect to the original Entry. Company authorizes Bank to charge back returns to Company’s designated Account the amount of any Return Entry as soon as information is made available to Bank. Company will promptly provide immediately available funds to indemnify Bank if any debit Entry is returned after Bank has permitted Company to withdraw funds in the amount thereof or if any adjustment memorandum that relates to such Entry is received by Bank.
24. Reversals. Company may initiate a reversing Entry or file of Entries for erroneous or duplicate transactions, as permitted by the ACH Rules. In doing so, Company warrants that it has initiated the Entries or files within 5 days of the original Entry or Entries. Company also warrants that the account holder of a reversing Entry has been notified of the reversal, and the reason for the reversal, no later than the settlement day of the reversal. For both reversing Entries and files, Company indemnifies all parties of the transaction(s) from and against any claim, demand, loss, liability, or expense.
25. Name and Account Number Inconsistency. Company acknowledges that, if an Entry describes the receiver inconsistently by name and account number, payment of the Entry may be made as provided in the ACH Rules on the basis of the account number even if it identifies a party different from the named receiver.
26. Fees. Company authorizes Bank to debit its designated Account for services provided under the ACH Agreement in accordance with the schedule of fees and charges. Bank may change its fees from time to time upon written notice to Company.
27. Liability. Bank shall be responsible only for performing the services expressly provided for in the ACH Agreement and shall be liable only for its gross negligence or willful misconduct in performing those services. In no event shall Bank have any liability for any consequential, special, punitive, or indirect loss or damage which Company may incur or suffer in connection with this ACH Agreement. In addition, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communications facilities, equipment failure, war, emergency conditions, or other condition beyond Bank’s controls. In the event the Company incurs any loss due to mishandling of a particular entry or entries, the Bank’s liability to the Company shall be limited to (1) liability for its own negligence or willful misconduct and (2) the amount recoverable by the Bank from NACHA or any third party pursuant to the ACH Rules or any Indemnity Agreement.
28. Exposure Limits. Company shall comply with the monetary file limits established by Bank.
“Entry Settlement Limit” means the maximum aggregate amount of In-Process Entries permitted to be outstanding at any time, which amount shall be separately communicated to Company by Bank in writing from time to time.
“In-Process Entries” means the aggregate dollar amount of all credit or debit Entries initiated by Company and in process on any date for which settlement has not occurred with respect to credit Entries, or the applicable period for the return of items has not expired with respect to debit Entries.
“Overlimit Entry” means an Entry the amount of which would cause the aggregate amount of In-Process Entries to exceed the Entry Settlement Limit.
Company agrees that Bank will not process an Overlimit Entry. Bank will suspend any Overlimit Entry submitted by Company and may, following its receipt of an Overlimit Entry; suspend all In-Process Entries. Company acknowledges that any Overlimit Entry or other In-Process Entries suspended by Bank will not settle on their scheduled Settlement Date. If Company wishes to initiate an Entry that would cause the amount of In-Process Entries to initiate an Entry that otherwise would be an Overlimit Entry. Company must submit its request prior to submission on which Company wishes to initiate the Entry that otherwise would be an Overlimit Entry. Bank may require from Company financial or other information in connection with Bank’s consideration of the request. Bank may grant or deny Company’s request at its sole discretion. In addition to the foregoing, Bank generally reserves the right to limit the nature and amount of the preauthorized debit/credit Entries processed under this ACH Agreement or to refuse to process any debit/credit Entries under this ACH Agreement if, in Bank’s sole judgement (i) there is reasonable cause to believe that any Entry will be returned or will not settle in the ordinary course of the transaction for any reason, (ii) to do otherwise would violate any limit set by the applicable clearing house association or any governmental authority or agency to control payment system risk, or (iii) there are concerns related to the Company’s Accounts. If any of the foregoing actions are taken by Bank with respect to a particular preauthorized debit/credit Entry, Bank will notify Company as promptly as practicable.
29. Security Interest. In order to secure the prompt payment and performance of all of Company’s obligations to Bank under this ACH Agreement, Company hereby grants to and in favor of Bank a security interest in, to, and covering all of Company’s Accounts maintained by Company with Bank, including all amounts (including reserves) held in the Accounts at any time and from time to time. In the event Company initiates insolvency or bankruptcy proceedings, Bank shall be deemed a secured party for all purposes with respect to the Accounts and all amounts held in the Accounts.
30. Amendments to Agreement. From time-to-time Bank may amend any of the terms and conditions contained in the ACH Agreement, including any part of Schedules A through C attached hereto. Such amendments shall become effective upon receipt of notice by Company or such later date as may be stated in Bank’s notice to Company.
31. Inspection. Upon reasonable notice from Bank to Company, Bank shall have the right to inspect Company’s books and records and to make on-site visits to any and all Company locations with regard to all information deemed by Bank to be necessary or pertinent to Company’s use of ACH services provided by Bank under this ACH Agreement. Information subject to Bank’s right of inspection shall include all information maintained by Company with respect to Company’s customers, clients, vendors and processors (including audits) if, in the opinion of Bank, Company’s relationship with such customers and clients is materially related to Company’s ACH transaction activity conducted through Bank under this ACH Agreement. Physical site visits may be conducted to ensure notification and communication processes, and disclosure requirements are being followed with respect to those addressed in the ACH Rules.
32. Termination of Agreement. Either party may terminate this ACH Agreement upon 30 calendar days written notice to the other; provided however that Bank may terminate this ACH Agreement immediately upon its determination that Company is in violation of this ACH Agreement, the ACH Rules or applicable laws or if Company initiates any bankruptcy proceeding or is otherwise declared insolvent. Any termination of this ACH Agreement shall not affect any of Bank’s rights or Company’s obligations with respect to any Entries initiated by Company prior to such termination, or the payment obligations of Company with respect to services performed by Bank prior to termination, or any other obligations that survive termination of this ACH Agreement. Company’s obligation with respect to any Entry shall survive termination of this ACH Agreement until any applicable statute of limitation has elapsed.
33. Miscellaneous. This ACH Agreement, including the attached Schedules A through Schedules C, is an addendum of the Digital Banking Agreement between Bank and Company with respect to the subject matter and supersedes any prior agreement(s) between Bank and Company with respect to such subject matter. Company may not assign this ACH Agreement or any of the rights or duties hereunder without Bank’s prior written consent. Bank may waive enforcement of any provision of this ACH Agreement. Any such waiver shall not affect Bank’s rights with respect to any other transaction or modify the terms of this ACH Agreement. This ACH Agreement will apply to and benefit both parties, as well as their legal representatives, successors, and anyone they legally transfer their rights or responsibilities to. This ACH Agreement is not for the benefit of any other person, and no other person shall have any right against Bank or Company hereunder. In the event that any provision of this ACH Agreement shall be determined to be invalid, illegal, or unenforceable to any extent, the remainder of this ACH Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. Bank shall be entitled to rely on any written notice believed by it in good faith to be signed by one of the authorized representatives whose names and signatures are set forth in the ACH Agreement and the implementation documents and forms. This ACH Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State in which Bank maintains Company’s Accounts.
Delegation of Authority allows a company to delegate authority for signing service-related documents, including ACH Origination Services, to someone other than the original signer. The designated person(s), listed by position or name, can act independently to handle service agreements, updates, or cancellations. The Bank will rely on this authority until it receives written notice of revocation.
34. Indemnification. The Company will indemnify the Bank if the Bank incurs any loss or liability on account of the breach with respect to any entries initiated by the Company of any of the warranties of an Originating Financial Institution contained in the ACH Rules except due to the Bank’s own negligence.
35. Fines. The Company will compensate the Bank for fines incurred due to Company non-compliance of the ACH Rules.
36. Security Procedures. The Company must implement safeguards against unauthorized transactions and ensure secure oversight of transfer initiation. It must protect the confidentiality of security credentials and promptly notify the Bank of any suspected breach. Such notice does not affect prior good-faith transfers made before notification.
Data Security. Limiting access and securely storing ACH data used in the routing and settlement of ACH transactions is a critical data security precaution. Company’s ability to limit access to production data can be done through commercially available software products. Access can be limited to specific programs, user IDs, or read-only or read-and-edit-only access functionality. Files can also be transmitted between ACH participants using the following data protection methods: encryption and authentication.
“Encryption” is a process of scrambling data content through hardware or software in order to protect the confidentiality of a file’s contents. This information should remain encrypted between all parties in the ACH Network using commercially reasonable procedures and must be transmitted using security technology that is 128-bit RC4 technology (minimum standards.)
“Authentication” is a process of ensuring that files and data contact have not been altered between the Originator and receiving points. Like encryption, this can be done using hardware or software to ensure data integrity.
“Call back” procedure may be employed to verify the identity of the individual initiating the ACH transmittal file and to confirm the accuracy of the file amounts.
Transmittal of Files:
i). Company will only transmit files on the dates specified in the agreed upon transmittal schedule. ii). Company will transmit files to Bank via pre-arranged access to ACH system utilizing agreed upon logon procedures and proper access identification. iii). Files will be encrypted by Company before being transmitted to Bank.
Glossary
“ACH Network” means the funds transfer system (network) governed by the ACH Rules which provides for the inter-financial institution clearing of electronic entries for participating financial institutions.
“Account” means a demand deposit account or other deposit account Company has with Bank.
“ACH Origination Agreement” means the Agreement for ACH Origination, which may change from time to time. All references to ACH Origination Agreement include all Schedules, Addendums and User Guides Bank provides to Company from time to time.
“Effective Entry Date” means the date placed on an ACH transaction by the Originator of the transaction or the ODFI – it is normally the date the Originator or ODFI intends the transfer to take place.
“Act” means the Electronic Funds Transfer Act passed by the US congress in 1978, which set out the rights and obligations of consumers and their financial institutions regarding the use of electronic systems to transfer funds. This act is implemented in the Federal Reserve Bank's Regulation E.
“Entries” mean Credit Entries and Debit Entries, including On-Us Entries consistent with the ACH Rules and includes any data for entries or any prenotification entries.
“File” means a group of ACH entries stored for delivery to an ACH receiving point.
“ODFI or Originating Depository Financial Institution” means financial institutions that originate ACH transactions on behalf of its customers. ODFI’s must abide by the ACH Rules.
“Originator” means a company, individual or entity that initiates entries into the ACH Network.
“Password” means confidential, unique personal numbers, codes, marks, signs, public keys, or other information composed of a string of characters used as a means of authenticating and accessing a Service.
“RDFI or Receiving Depository Financial Institution” means a financial institution qualified by NACHA to receive ACH transactions.
“Return Entry or Return Entries” mean any item, which cannot be processed and is being returned by the RDFI to the ODFI for correction or re-initiation.
“ACH Rules” mean the NACHA Operating Rules which provide a complete guide to the Rules and Regulations governing the ACH Network.
“SEC Codes” or Standard Entry Class codes mean the three-character code within an ACH company/batch header, which identifies the type of transactions within that batch (e.g. CCD, CTX, PPD, etc.).
“Security Procedures” means, the applicable security requirements and procedure for verifying the authenticity of Entries.
“Service” means the ACH Services and features which Bank may provide from time to time to Bank’s commercial or small business customers.
“Settlement Date” means the date on which settlement occurs, i.e., funds change hands as a result of an ACH entry.
“Token”- Security Token: A security token shall be utilized for the authorization and submission of ACH files. Bank will never ask for the secure access code generated as a result of your login or transaction activity.
“Uniform Commercial Code Article 4A (“UCC4A”)” means the portion of the UCC which deals with certain funds transfers, including ACH credit transactions not subject to the Act of Regulation E. This law outlines the protections and responsibilities given to the parties to wholesale credit transactions and sets the legal standard for commercially reasonable security procedures to be used in conjunction with those transactions.
The ACH Terminology appended to these Terms and Conditions as well as terminology defined in the ACH Rules, are incorporated into these Terms and Conditions.
Effective Date: The date specified by the user as the date on which the transaction is to take place.
Transfer Amount: Dollar amount of the transfer taking place.
From Institution R/T number: Routing and Transit number of the institution from which the funds will be withdrawn.
From Account Type: Type of account the funds are to be withdrawn from, e.g. Demand Deposit, Savings and Money Market.
From Account: The account number the funds will be withdrawn from.
From Account Name: Nickname of the account from which the funds will be withdrawn.
To Account ID: The account identification number in which the funds will be deposited.
ACH Addenda: Any additional information that needs to be sent along about the addenda.
Handling Instructions: Any additional notes or information needed to process the ACH transfer.
Effective Date: The date specified by the user as the date on which the transaction is to take place.
Transfer Amount: Dollar amount of the transfer taking place.
From Account ID: Identification # of the account from which the money will be withdrawn.
To Institution R/T number: Routing and Transit number of the institution where the funds will be deposited.
To Account Type: Type of account the funds are to be deposited into, e.g. Demand Deposit, Savings and Money Market.
To Account: The account number the funds will be deposited into.
To Account Name: Nickname of the account into which the funds will be deposited.
ACH addenda: Any additional information that needs to be sent along about the addenda.
Handling Instructions: Any additional notes or information needed to process the ACH transfer.
Schedule A – Delivery Specifications
Delivery of ACH Files:
The Third-Party Sender may electronically transmit files to the Bank via Internet Banking System.
All files must be submitted in NACHA format. Third-Party Sender should refer to Appendix Three in the NACHA Rulebook for specific formatting details.
Processing Deadline for:
Credit Entries
Transmission of a File – until 4:00 p.m. MST Time (Standard or Daylight) two (2) Business Days prior to Effective Entry Date
Debit Entries
Transmission of a File – until 4:00 p.m. MST Time (Standard or Daylight) one (1) Business Day prior to Effective Entry Date
Same Day ACH Credit Entries Only
Transmission of a File – until 11:30 a.m. MST (Standard or Daylight) on the Effective Entry Date.
Same Day ACH Debit Entries
Transmission of a File – until 11:30 a.m. MST (Standard or Daylight) on the Effective Entry Date.
Schedule B – Holidays
Holiday Calendar: Bank will be closed on the following standard holidays observed by the Federal Reserve Bank. Bank will not accept files for processing on the following days, as well as all Saturdays and Sundays. Please ensure to make certain that these dates are not used as Effective Entry Dates:
New Year’s Day (January 1)
Martin Luther King’s Birthday (3rd Monday in January)
Presidents Day (Third Monday in February)
Memorial Day (Last Monday in May)
Juneteenth (June 19)
Independence Day (July 4)
Labor Day (First Monday in September)
Columbus Day (Second Monday in October)
Veterans Day (November 11)
Thanksgiving Day (Fourth Thursday in November)
Christmas Day (December 25)
Note: If January 1, July 4, November 11, or December 25 fall on a Sunday, the next following Monday is a standard Federal Reserve Bank holiday.
Schedule C – Restricted ACH Transactions
Merchants listed in this category will not be considered by Bank for approval, including but is not limited to:
1. Wire Transfer Services. The purpose of this Wire Transfer Agreement is to provide for wire transfer services to be performed by Bank for Company. This Wire Transfer Agreement shall cover both the origination of wire transfers by Company as well as the receipt of wire transfers by Bank for the benefit of Company. This Wire Transfer Agreement shall also be supplemented by the Timberline Deposit Account Agreement and any current deposit resolutions or authorizations on file at Bank and related to Company’s account(s). Your acceptance indicates your consent to be bound by the terms of this Wire Transfer Agreement as well as by the terms of the Timberline Deposit Account Agreement.
2. Payment Order. Bank is hereby authorized and directed, whenever Bank receives a payment order which is in compliance with the security procedures established by this Wire Transfer Agreement, to transfer funds from any of Company’s accounts listed on Exhibit “A” to any account maintained by Company at Bank or elsewhere or to any account maintained by a third party designated in the instruction, whether the third party beneficiary’s account is at Bank or at any other financial institution. As used in this Wire Transfer Agreement, the term “payment order” shall include telephonic, oral, or written instructions for the transfer of funds from the accounts listed on the attached Exhibit A at the request of an Authorized Agent as defined below. As used in this Wire Transfer Agreement, the term “transfer” shall be deemed to include a transfer of funds by means of the Federal Reserve FEDWIRE, the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”), TELEX, computer terminal, or other means. The term “transfer” shall not include transfers made through the ACH system within the United States, as defined by the ACH Rules.
3. Authorized Agents and Authorization Code. Company represents and warrants to Bank that the persons named on Exhibit A to this Wire Transfer Agreement as Authorized Agents are authorized by Company to give payment orders to Bank for the transfer of funds and matters related to the transfer of funds with respect to the accounts listed on Exhibit “A”. Depending on Company preference, the Company will provide one Authorization Code for all Authorized Agents or a unique Authorization Code for each Authorized Agent. Company understands, and will cause each Authorized Agent to understand, that Company and Authorized Agent are responsible for maintaining the confidentiality of the Authorization Code. Company agrees to notify Bank immediately of any claim made by Company, a beneficiary, or anyone claiming through Company for any loss resulting, directly or indirectly, from the breach of security of any Authorization Code.
4. Change of Accounts or Authorized Agents. Company may change the list of accounts applicable to this Agreement and/or Authorized Agents from time to time upon written notice to Bank; provided, however, that such written notice of change shall be accompanied by an executed resolution (or other written evidence satisfactory to the Bank in the Bank’s sole discretion) establishing to the Bank’s satisfaction that such changes were authorized by the Company; and provided further that failure of the Company to provide such written evidence of authority to change the list of accounts or Authorized Agents to Bank shall not create any liability on the part of Bank should Bank accept such changes without the Company’s providing to Bank such written evidence of authority.
5. Authority to Transfer. Subject to Bank’s normal cut-off hours (as posted in the Bank and subject to change from time to time) and other deadlines, whether legal, regulatory, or contractual, Bank is hereby authorized and as directed by Company to make transfers and act upon payment orders as established by this Wire Transfer Bank shall have no obligation to accept a payment order from Company, and Bank is not under any duty, before acceptance, to take any action or refrain from taking any action with respect to a payment order except as otherwise required by law.
6. E-Signature. E-Signature applications allow users to complete approvals and agreements from anywhere, on any It provides a quick and secure way to access and sign documents. Bank will utilize E-Signatures to collect authorized signatures from Authorized Agents to complete wire forms. All forms or "envelopes" sent to customers will require Knowledge Based Authentication (KBA) to access the document.
7. Security Procedures. Bank has informed Company of the security procedures which are available for processing payment orders. Bank reserves the right to change or create additional security procedures from time to time. Company represents and agrees that it has analyzed the security procedures in light of the nature of its business operations or other needs and in light of the number and amount of payment orders which Company expects to initiate. Based upon these considerations, Company agrees to the security procedures as indicated below to be utilized with respect to payment orders initiated by Company. Company agrees that the security procedures provide a commercially reasonable degree of protection in light of Company’s particular needs and circumstances. Company agrees to keep its account access security procedures, related account and personal identification information confidential at all times. Company also agrees to safeguard all financial and personal information about Company or any of Company’s accounts in order to prevent any fraudulent or unauthorized activity with regard to Company’s accounts or any of the wire transfer services provided by Bank. Company also agrees to take all necessary steps to assure that each Authorized Agent maintains the integrity and secrecy of the security procedures. Company will notify Bank immediately if it is suspected that any security procedure has been Company further agrees that a payment order which is initiated with the proper security procedures from any of the authorized accounts shall be binding upon Company and may be acted upon by Bank without further verification. Bank shall be authorized in all cases to process payment orders and transfer funds in accordance with the instructions obtained in such payment orders notwithstanding the manner or means by which a payment order was actually provided to Bank or under whose direction a payment order was initiated. You agree to the following required security procedures:
8. Notice to Customer. If Bank sends notice to Company that any of Company’s accounts with Bank have been debited or credited by a transfer, Company agrees to examine each such notice upon receipt and to notify Bank immediately of any error or other problem with any such payment order, or any transfer, amendment, or cancellation. If Company fails to notify Bank of any error or other problem within 10 days of the date of such notice, Bank shall be released from all liability in connection with the payment order, transfer, amendment, or cancellation to the extent permitted by law.
9. Rejection of Payment Order. Bank reserves the right to reject or impose conditions on the acceptance and execution of any payment order. Bank may do so for any reason including, but not limited to, the absence of adequate information provided to Bank or the lack of sufficient funds in the identified account at the time the payment order is received. Bank will give notice of the rejection of a payment order in writing or by telephoning an Authorized Agent.
10. Verification of Transfer. In its sole discretion, Bank may, but need not, seek additional verification or further authorization of any payment order or related instruction other than the security procedures noted above. Bank may contact Company by any reasonable means in order to obtain assurance of the authenticity or correctness of a payment order. If, upon attempting to obtain assurance of authenticity, Bank is unable to do so, Bank may, in its sole discretion, either accept and execute the payment order or decline to accept and execute the payment order as received by Bank.
11. Reliance on Identifying Numbers. Company understands that the routing numbers assigned to banks and the account numbers and names of intended beneficiaries of transfers are critical to the transfer function. In executing payment orders, Bank will rely upon identifying account numbers rather than names. Bank shall have no duty to detect any inconsistency between the name and identifying account number contained in the payment order. Company is responsible for such inconsistencies and shall hold Bank harmless from any loss, liability, expense or damage Bank may incur as a result of such inconsistency, including attorney’s fees and expenses of Bank may refuse to accept a payment order if an account number is missing or whenever the instructions contained in or relating to the payment order are unclear, illegible or conflicting in any manner. Bank shall have no liability arising from any delay caused by its attempt to reconcile any inconsistent information or investigate any suspected irregularity.
12. Requests to Amend or Cancel. Company may ask Bank to amend or cancel any payment order or related instruction, and Bank will use its best efforts to comply with such request if the request is made pursuant to the security provisions contained in this Wire Transfer Agreement and is made at a time and in a manner which gives Bank a reasonable opportunity to act on the request before it executes the transfer or carries out the payment order as Company originally requested. If Company asks Bank to attempt to recover funds which Bank has already transferred, Bank shall have no obligation to do so unless required to do so by law and then the Company shall reimburse the Bank for all its costs and expenses (including reasonable attorney’s fees) incurred by the Bank in recovering or attempting to recover such funds to the extent recovery of such costs and expenses is not prohibited by law. Bank may request that Company provide a bond or other assurance of payment reasonably satisfactory to Bank to insure that customer reimburses Bank for its costs and expenses. Upon the supplying of such other assurances, Bank will take such action as it deems reasonable under the circumstances, including, for example, sending a request to reverse the transfer to any financial institution which received such funds. In no event, however, shall Bank be deemed to have guaranteed of otherwise assured the recovery of any portion of the amount transferred, nor shall Bank be responsible for any amount transferred before Bank received and had time to act upon the request to amend or cancel the transfer, except as otherwise required by law.
13. Foreign Transfer. Company agrees that if it requests a transfer of funds in a currency other than United States Dollars, Bank will convert the currency at the Bank’s exchange rate at the date of execution of the payment order for the specified foreign currency. If any funds are transferred to Company in a currency other than United States Dollars, Bank will convert the foreign currency into United States Dollars at its exchange rate for such currency at the time of the If Bank does not have current exchange rates for the particular foreign currency involved, Bank will use its best efforts to convert the currency promptly through commercial and/or banking channels, and Company agrees it shall be responsible for any losses arising from currency conversions effected by Bank in good faith within a reasonable time after receiving funds for conversion.
14. FundCompany authorizes Bank to debit its designated Account for services provided under the ACH Agreement in accordance with the schedule of fees and charges. Bank may change its fees from time to time upon written notice to Company. Company shall also reimburse Bank for any out-of-pocket costs incurred by Bank in carrying out the execution of any payment order.
15. Account Debit. If Bank accepts a payment order from Company, Bank shall receive payment from Company by automatically deducting from any authorized account the amount of the payment order plus the amount of any out-of-pocket costs charged for Bank’s services in execution of the Company’s payment order. Bank is entitled to payment from Company on the execution date.
16. Execution of Payment Order and Delay. Unless Company’s payment order specifies otherwise, the execution date for the payment shall be the first reasonably available funds transfer date (taking into account the Bank’s cut-off times for funds transfers) after Bank receives the payment order. The funds transfer shall be deemed completed upon acceptance by the beneficiary’s Company understands that there are circumstances where there may be a delay between the Bank’s execution of a payment order and actual receipt of such funds by the intended beneficiary and Bank shall have no liability for such delay. Company’s obligation to pay the Bank for the payment order is excused only if the funds transfer is never completed, however, Company is still responsible to pay Bank any out-of-pocket costs incurred by Bank if Company has requested Bank to route a transfer through an intermediate bank, and the Bank is unable to obtain a refund because the intermediate bank that Company designated has suspended payments, then Company is still obligated to pay Bank for the payment order. Company will not be entitled to interest on any refund it receives because the beneficiary’s bank does not accept the payment order unless otherwise required by law.
17. Relief from Failure to Act. In no event shall Bank be responsible for any loss, claim, liability, damage or other amount arising in any way directly or indirectly from any error, failure, or delay in the performance of any of Bank’s obligations under this Wire Transfer Agreement caused by the Company, an Authorized Agent of the Company, natural disaster, fire, war, strike, civil unrest, error in or inoperability of communication equipment or lines or any other circumstance beyond the control of Bank.
18. Indemnity. Company agrees to indemnify Bank against and hold Bank harmless from any and all Damages arising directly or indirectly from or relating in any manner to, any actions taken by Bank which were reasonably believed by the Bank to be taken pursuant to this Wire Transfer Agreement including, but not limited to, actions taken by Bank to amend or cancel any payment order or any decision by Bank to effect or not to effect a transfer as provided in this Wire Transfer Agreement, or any other action taken by bank in good faith pursuant to its responsibilities under this Wire Transfer Agreement.
COMPANY UNDERSTANDS THAT IT IS THE BANKS POLICY TO REQUIRE TWO AUTHORIZED USERS TO APPROVE OUTGOING WIRE TRANSFERS SUBMITTED THROUGH DIGITAL BANKING. COMPANY ACKNOWLEDGES THAT THESE POLICIES ARE IN PLACE TO PROTECT COMPANY BY PREVENTING AUTHORIZED ACTIVITY. COMPANY ACKNOWLEDGES THAT IF IT CHOOSED TO ALLOW ONE INDIVIDUAL TO SUBMIT AND APPROVED WIRE TRANSFERS, IT WILL HOLD THE BANK HARMLESS FOR ANY DAMAGES THAT INCURRED AS A RESULT OF TRANSACTING BUSINESS OUTSIDE OF BANK POLICY.
19. Liability. Company has sole responsibility for verifying and assuring the accuracy of any information contained or related to any payment order. Bank has no duty whatsoever to verify the accuracy of any such information, and Bank will not be liable for Damages caused directly or indirectly by payment orders which contain erroneous information. Bank will be liable for Company’s lost interest and expenses directly related to a payment order in the event Bank fails to exercise ordinary care in processing Company’s transfers. However, Bank will not be liable under any circumstances for any special, indirect, exemplary, or consequential damages (including lost profits) of any kind. Company will be liable for any loss or damage resulting from Customer’s breach of this Wire Transfer Agreement or to which Company’s negligence contributed, or which resulted from unauthorized, fraudulent, or dishonest acts by any of Company’s employees, agents, officers, or current and/or former Authorized Agents. Such liability includes, but is not limited to, instances when a current or former Authorized Agent initiates one or more transfers to Company’s detriment.
20. Arbitration. Any dispute, controversy or claim arising out of or based upon the terms of this Wire Transfer Agreement or the transactions contemplated hereby shall be resolved by binding arbitration. To initiate arbitration, a written notice must be mailed or delivered to the other party. Arbitration will be conducted before one arbitrator and will take place in the State of Colorado. The award of the arbitrator will be final. Costs and attorney’s fees incurred during the arbitration proceeding will be awarded to the prevailing party. No dispute, controversy or claim arising out of or based upon the terms of this Wire Transfer Agreement shall be arbitrated on any class action basis. Company and Bank specifically waive the right to a trial by jury. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
21. Amendment. From time-to-time Bank may amend any term of this Wire Transfer Agreement by giving Company reasonable notice in writing. Bank may give such notice to anyone who is authorized to send payment orders to Bank in Company’s name, or to anyone authorized by law to accept service of process on behalf of Company.
22. Exhibits. The Exhibits attached to or referenced in this Wire Transfer Agreement are incorporated herein by reference as though fully set forth. In the event Customer elects to utilize Wire Transfer Services, Customer agrees to execute such additional agreements, Exhibits, schedules, or related documentation as the Bank may require, which may be provided and executed separately from this Agreement.
23. Termination. Either party may terminate the Wire Transfer Agreement by written notice to the other. Bank may terminate this Wire Transfer Agreement immediately without prior notice, if it has reasonable cause to believe that Company or any Authorized Agent of Company or an intended beneficiary is committing or may be attempting to commit an illegal or otherwise improper act, whether by means of a payment order or other instructions covered by this Wire Transfer Agreement or by any other means. All representations, warranties, and obligations of Company shall survive any termination of this Wire Transfer Agreement, whether with or without cause.
24. Governing Law and Venue. Unless preempted by federal law, this Wire Transfer Agreement shall be governed by and construed in accordance with the laws of the State of Colorado including, without limitation, Article 4.5 of the UCC as enacted in Colorado, and as applicable, operating circulars of any Federal Reserve Bank, federal laws and regulations as amended, funds transfer system rules and general commercial bank practices applicable to funds transfer and related activities. Company irrevocably submits to the personal jurisdiction of any state court in the State of Colorado and agrees that, in any action brought under this Wire Transfer Agreement, venue shall be in the county where Bank maintains its business offices.
This REMOTE DEPOSIT AGREEMENT ( “RDC Agreement”) is made and entered into on the date Company electronically accepts the terms and conditions listed in the RDC Agreement.
RECITALS
TERMS AND CONDITIONS
In consideration of the foregoing Recitals and the following Terms and Conditions, Bank and Company agree as follows:
1. Effect of Recitals and Exhibits. The Recitals are true and correct and are incorporated into the Terms and Conditions of this RDC Agreement
2. Term. This RDC Agreement will remain in effect until terminated by Bank or Company as provided below at Section 16 of this RDC Agreement.
3. System Description. Bank will provide Company with access to the System together with reasonable documentation and instructions for Company to use the System in compliance with this RDC Agreement. When used with Equipment (defined below) the System will permit Company to scan and create digital images of Items (“Images”) and electronically transmit such Images to Bank for deposit to the Participating Account(s). Bank may print received Images and process them as substitute Items and/or further transmit Images electronically to the paying bank.
4. Equipment Requirements. Company will at its expense provide, maintain, update and replace (i) equipment, software and services (collectively, the “Equipment”) necessary to access and use the System including a personal computer with operating software and internet service, and (ii) any network equipment, utilities and service lines for System use at Company’s premises. Bank may modify the specifications for Equipment from time to time upon reasonable notice to Company. During the term of, and subject to, this RDC Agreement, Bank will at its initial expense provide for Company’s use with the System, a scanner with operating software (“Scanner”). While the Scanner is in its possession, Company shall at its expense maintain, update and repair the Scanner to keep it in good working order and also provide all necessary supplies for Scanner operation and maintenance. Company shall be responsible for any damage or loss to the Scanner while in Company’s possession and for insuring the Scanner against insurable losses. Company shall be solely responsible for verifying the compatibility of the Equipment, System and Scanner with the Company’s equipment, software, network, utilities and services.
5. Items Eligible/Not Eligible for Deposit. Unless otherwise advised in writing by Bank, all Items except foreign Items are eligible for deposit through use of the System. Savings bonds, cash (coin and paper currency) post-dated checks, checks that are not signed, lien waivers not endorsed properly, personal checks not endorsed, are not eligible for deposit using the System.
6. Modification of Deposit Agreements. This RDC Agreement supplements any deposit account agreements and disclosures Company has with Bank relating to the Participating Accounts (collectively the “Deposit Agreements”). If there is any conflict between any of the terms of any Deposit Agreement and this RDC Agreement, this RDC Agreement shall control on matters relating to use of the System. Company’s use of the System constitutes its agreement to abide by both the Deposit Agreements and this RDC Agreement.
7. Deposit Process. Company shall batch Images into single deposits (each a “Deposit”) in accordance with instructions provided by the Bank from time to time and transmit a Deposit through the System for review. The System will perform a quality check on the Images contained in the Deposit and shall notify the Company if there are errors with the Images or if the Deposit is ready for deposit. Company shall correct any identified errors or remove from the Deposit any Items that cannot be confirmed. Upon the System’s confirmation the Deposit is ready for deposit; Company shall transmit the Deposit to the Bank. The Deposit will be deemed complete upon the Bank’s generation of an electronic confirmation of receipt (“Deposit Receipt”), which the Company acknowledges will be generated some period of time after transmittal by the Company. The deposit acceptance time stamp generated by the Bank on the Deposit Receipt shall be controlling as to the time of actual deposit completion. Deposits completed by 6:00 pm Mountain Standard Time (Standard or Daylight, as applicable) shall be deemed deposited on the same Business Day and Deposits completed after 6:00 pm Mountain Standard Time (Standard or Daylight, as applicable) shall be deemed deposited on the next Business Day. Bank’s funds availability policy, as from time to time modified, shall be applicable to Deposits made through the System.
8. Deposit Limits. Bank can set transaction dollar limits on deposited items per day.
9. Company Responsibilities.
10. Company’s Authorization to Bank. Company authorizes Bank to put a hold on any Item that Bank determines does not conform to the provisions of Section 8 or otherwise with System requirements or banking laws. Company also authorizes Bank to debit from the applicable Participating Account any deposited Item that Bank determines is not properly payable or is for any reason returned unpaid.
11. Change in Procedures. Bank may from time to time modify and update operating procedures and protocols for the System. Bank will give Company reasonable notice of such changes.
12. System Availability. The System may be unavailable at certain times for the following reasons; (i) scheduled maintenance or upgrades that typically occur from 10:00 pm to 2:00 am Mountain Standard Time (Standard or Daylight, as applicable); (ii) unforeseen unscheduled maintenance of System components may be necessary from time to time; (iii) events beyond Bank’s reasonable control, such as, but not limited to, earthquakes, fires, floods, storms, or interruptions in telephone, internet and/or electrical services; or (iv) breakdowns in Company’s Equipment or interruption of Company’s telephone, internet and/or electrical services. Although Bank will make reasonable efforts to provide regular availability of the System to Company during the term of this RDC Agreement, Bank shall have no liability to Company, or any party claiming through Company, for any unavailability of the System or any consequential damages that may result there from.
13. System Fees/Debit Authorization. Company authorizes Bank to debit its designated Account for services provided under the ACH Agreement in accordance with the schedule of fees and charges. Bank may change its fees from time to time upon written notice to Company.
14. DISCLAIMER OF WARRANTIES. EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED IN THIS RDC AGREEMENT, WITH RESPECT TO THE SYSTEM AND THE SCANNER, BANK MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (1) THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, 2) ANY WARRANTY OF COMPATIBILITY WITH THE COMPANY’S EQUIPMENT, SOFTWARE, NETWORK OR SERVICES, (3) ANY WARRANTIES OF TIMELINESS, OR (4) ANY OTHER WARRANTY WITH RESPECT TO QUALITY, ACCURACY, OR FREEDOM FROM ERROR.
15. Indemnification/Limitation of Liability. Bank will not be liable for any Damages paid, suffered or incurred by Company, and Company will indemnify and hold harmless Bank from any Damages paid, suffered, or incurred by Bank, arising directly or indirectly as a result of or in connection with; (i) Company’s performance or non-performance of its obligations under this RDC Agreement; (ii) any forged or unauthorized signatures in any documentation of Company executed in connection with this RDC Agreement; (iii) Bank’s acting on any information furnished by or on behalf of Company; or (iv) the exercise of Bank’s rights, or performance of Bank’s obligations, in accordance with the provisions of this RDC Agreement. Bank is required to use ordinary care only in processing Company’s Items and Deposits made using the System. Bank shall have no liability for depositing any Item submitted by Company that does not conform to this RDC Agreement including, but not limited to, the standards set forth in section 8. Bank will not be liable to Company (or any party claiming through Company) for any damage, loss or liability arising from Bank’s furnishing or Company’s use of the System and/or Scanner, except to the extent that the damage, loss or liability arises from Bank’s gross negligence or willful misconduct: provided, however, (1) under no circumstances will Bank be liable for any damages arising in whole or in part by the action or inaction of Company or an Administrator, an Authorized User, or any other agent, director, officer, owner or employee of Company, and (2) Bank’s liability to Company for any damages, loss or liability, regardless of form, shall not exceed the actual amount lost by Company for the specific transaction(s). Furthermore, Bank shall not be liable for any damage, loss or liability arising from (x) a failure or delivery in performance of its obligations when caused by accidents, strikes, fire, flood, earthquake, disasters, war, terrorism, riot, equipment or system breakdown, acts of God, government regulations, power failures, communication service failures, or any cause that is reasonably unavoidable or beyond its control, or (y) any damage to Company’s software, equipment, network or services, or any loss of Company’s data, arising from any use or incompatibility of the System, Equipment and/or Scanner with the Company’s software, equipment, network or services. Company agrees that the bank is not responsible for any check images lost, altered, or damaged prior to arriving at a bank-owned location. UNDER NO CIRCUMSTANCE SHALL BANK BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF FORESEEABILITY, ARISING DIRECTLY OR INDIRECTLY FROM BANK’S FURNISHING OR COMPANY’S USE OF THE SYSTEM, EQUIPMENT OR SCANNER, OR FOR ANY SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOODWILL, EVEN IF BANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. Company acknowledges and agrees that the System Fees have been established in contemplation of these limitations on Bank’s liability.
16. Termination. Bank may terminate Company’s use of the System, immediately upon Bank sending Company written notice of such action if (i) Company violates any term or condition of this RDC Agreement; (ii) the occurrence of any default by Company under any other agreement, loan agreement or promissory note signed by Company in Bank’s favor; (iii) upon a material adverse change in Company’s operations, business, property, assets or condition, (iv) Bank discovers any willful misconduct (including bad checks and fraudulent activity) on the part of Company or any other party; or (v) in the event of a breach in the security in the System, or any uncertainty as to the authorization or accuracy of the Items. Otherwise, this RDC Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party. Upon any termination of this RDC Agreement a) Company will, in accordance with such instructions as Bank may give, cease to use and have access to the System, b) Bank will no longer accept electronic Deposits from Company, c) Company shall remain liable for all Items deposited using the System, and d) Sections 13 and 14 of this RDC Agreement shall survive such termination. Additionally, within 5 Business Days after termination Company shall return the Scanner to the Bank in good operating condition, excepting only ordinary wear and tear. In lieu of such return, the Company may purchase the Scanner from the Bank at its then fair market value based on assumed good operating condition other than normal wear and tear for the period of use. In the event Bank reasonably determines it is no longer able to provide the System or any part thereof due to a change in applicable laws or rules, this RDC Agreement may be terminated immediately by Bank.
17. Right to Audit and Inspect. Bank has the right to review Company’s operations and procedures with regard to the System and to conduct inspections and to audit Company’s operations at any of its business locations, or at any location where equipment is installed or used, at times which are mutually convenient. Bank also has the right to mandate specific internal controls at Company’s business locations in connection with its use of the System, including IT infrastructure. Company agrees to cooperate and provide information and documents at its expense, as may be reasonably requested by Bank. By conducting any inspection, review, or audit of Company’s operations and procedures, Bank is not undertaking any affirmative obligation to provide advice or other assistance in Company’s business operations. Company acknowledges that any inspection, review, or audit will be conducted only to confirm Company’s compliance with the terms of this RDC Agreement, and that Bank will have no liability or responsibility to Company as a result. Failure to allow Bank to audit and inspect may result in RDC service being disabled.
18. Miscellaneous.
***NOT COMPATIBLE WITH XP***
|
MINIMUM SYSTEM REQUIREMENTS |
|
|
Recommended |
|
|
Operating System |
Microsoft Windows 10, 11 / MAC OS X |
|
Adobe Acrobat Reader |
3.0 or higher |
|
Disk Space |
2.0 GB |
|
Memory (RAM) |
512 MB |
|
Monitor Resolution |
XVGA (1024 x 768) |
|
Port |
USB 2.0 |
|
Processor |
2.0 GHz or higher |
|
Internet Access Speed |
512Kb up/down (minimum) |
|
Web Browser |
Chrome, Firefox, Edge, Safari |
|
Java |
Needs to be installed by customer |
|
Keyboard |
Yes |
|
Mouse |
Yes |
The scanners that we list in the table that follows have the status of Certified with the Merchant and Merchant Remittance channels of the Source Capture Optimization Version 6.4 release. Unless We note otherwise, the scanners in the table are certified for use with Microsoft Windows only.
|
Merchant and Merchant Remittance Source Capture Certified Scanners |
|
|
Burroughs Merchant Elite |
CTS LS100 |
|
Burroughs Micro Elite |
CTS LS150 |
|
Burroughs Professional Elite |
Cummins Allison JetScaniFX i100 |
|
Burroughs SmartSource Edge |
Digital Check CX30' |
|
Burroughs SmartSource Microlite SE |
Digital Check TS215' |
|
Burroughs SmartSource Professional |
Digital Check TS240· |
|
Canon CR-SO |
Epson TM-S2000 |
|
Canon CR-00 |
Panini i:Deal* |
|
Canon CR-135I |
Panini Vision next |
|
Canon CR-190I |
Panini Visionx• |
Thes canners that we list in the table that follows have the status of Supported with the Merchant and Merchant Remittance channels of the Source Capture Optimization Version 6.4 release.
|
Merchant and Merchant Remittance Source Capture Supported Scanners |
|
|
CanonCR-25 |
Epson Capture One(TM S1000) |
|
Canon CR-55 |
|
This POSITIVE PAY AGREEMENT (this “Positive Pay Agreement”) is made and entered into on the date entered on the Digital Banking Agreement.
1. In order to participate in Positive Pay, Company must have at least one Bank account. If you are applying for Positive Pay with another person or persons, at least one signer must have full signing authority on the accounts listed on the If there is any change of ownership or signing authority on any of the account(s), notification must be immediately provided to Bank. By signing this agreement, the account holder(s) give authority for other applicants/authorized users to have full access and privileges to the account(s) to which the agreement applies.
2. Company has the right to terminate this Positive Pay Agreement at any time upon delivery of written notice to Bank has the right to terminate its obligation to provide Positive Pay to Company upon ten days prior written notice.
3. Company agrees that Bank has the right to change the fees for Positive Pay upon prior written notice to Company. In addition, Bank has the right to amend these rules from time to time providing Company with a copy of the amended rules.
4. Company agrees to waive and release any claims against Bank arising in any way or that may be related to Positive Pay for those claims resulting solely from negligent acts or omissions of the Company agree as solely responsible for any loss due to use of this account by any applicant/authorized user.
5. Company agrees at all times to use high quality check documents in accordance with the Bank’s check printing and MICR specifications.
6. It is not required that Company have any type of accounting software to utilize this service as Company has the ability to manually upload a Positive Pay file into Bank’s system. If Company has software that will create a Positive Pay file, Bank’s system can be customized to fit Company’s software formatting requirements. Bank asks that if Company uses their own software to upload a Positive Pay file to Bank’s system, that Company will send Bank a test file created by Company software so that Bank can input Company software format into Bank system to allow Company to upload.
7. The Positive Pay file must be uploaded to Bank system by 4:00 M. (Mountain Time) before disbursing checks or authorizing ACH transactions. Positive Pay files can be uploaded or manually input into Bank system on a monthly, weekly, daily, and/or hourly basis.
8. Positive Pay verifies Company Positive Pay information against check and ACH transactions being presented to Bank for payment. Any item presented to Bank for payment that are not identical to information in Positive Pay will be an exception
9. If an item is inadvertently processed for payment, you must notify us within two Business Days from the posting date to help minimize potential liability. While we will thoroughly review and process your claim, prompt action is essential. The ability to recover funds will depend on the specific circumstances and timing.
This authority is to remain in full force and effect until Bank has received written notification from me of its termination in such time and manner as to afford Bank a reasonable opportunity to act on it. I understand that I am in full control of my account and that if at any time I decide to discontinue service, I will provide written notification to Bank. My use of the service signifies that I have read and accepted all the terms and conditions of this Positive Pay Agreement.