Treasury Management Services Agreement. Terms & Conditions. Posted January 5, Effective January 5, 2015

Transcription

1 Treasury Management Services Agreement Terms & Conditions Posted January 5, 2015 Effective January 5, 2015 For Customers who agreed to Treasury Management Services before these updated Terms & Conditions were published, please be aware that although the name of the original forms have been changed, the process remains similar and your current forms are valid under these updated Terms & Conditions. For example, the prior process involved Master Authorizations, Online Banking Profiles, Exhibits, and Forms. Under the updated Terms & Conditions, the process will include Master Authorizations, Authorizations to Link Company and Related Consumer Accounts, and a Designation of Services (DOS) Form that will include the information previously found on the Online Banking Profiles, Exhibits and Forms.

2 TABLE OF CONTENTS INTRODUCTION... 1 PART I: GENERAL TERMS AND CONDITIONS Authority, Representations and Warranties Related Companies Designation of Authorized Accounts Eligible Accounts Designation of Authorized Company Representative(s) Deposit Account Terms and Conditions Required Deposit Balance Services Effective Dates Data and Information Supplied by Company Update Notice Security Procedures Physical and Electronic Security Electronic Communications Hardware and Software Internet Disclaimer Service Limits Financial Information and Audit Notices, Changes, and Amendments Deadlines Statements Checks and Other MICR Documents Remotely Created Checks Payment for Services Security Interest/Right of Set Off No Obligation to Lend Money Stop Payment Orders Bank Shall Not Examine Items Confidential Information Bank Liability Company Liability ii

3 1.32 Representations and Warranties Information Sharing Compliance with Laws, Rules, and Regulations Prohibited Transactions Relationship of Parties Force Majeure Reimbursement Termination Suspension of Services Arbitration and Waiver of Jury Trial Governing Law Attorneys Fees Miscellaneous Provisions PART II: ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SERVICES SECTION ONE: INTERNET SERVICES SECTION TWO: SOUTHWEST BANK ONLINE BILL PAYMENTS SECTION THREE: ACH ORIGINATION SERVICE SECTION FOUR: POSITIVE PAY SECTION FIVE: REMOTE DEPOSIT CAPTURE SECTION SIX: WIRE TRANSFER OF FUNDS SECTION SEVEN: LOCKBOX SECTION EIGHT: TARGET/ZERO BALANCE ACCOUNTS SECTION NINE: COMMERCIAL CASH SWEEP SECTION TEN: LINE OF CREDIT SWEEP SERVICES SECTION ELEVEN: FEDI INFORMATION SECTION TWELVE: RELATED CONSUMERS SECTION THIRTEEN: CD ROM ENROLLMENT SECTION FOURTEEN: VAULT SERVICES iii

4 INTRODUCTION Thank you for choosing Southwest Bank s Treasury Management Services. This document, the Treasury Management Services Agreement (the Agreement ), provides product information, disclosures, and descriptions of Treasury Management Services ( Services ) available at Southwest Bank (the Bank ). Other documents may become part of our Agreement depending on the Services you select. Please read all documents carefully; they will govern the Services provided to you. By signing and returning the Treasury Management Master Authorization Form and Certification ( Master Authorization Form ), you agree to the terms and conditions outlined for all Services selected by you, the Company ( Company ) in the Designation of Services Form ( DOS Form ). The Master Authorization Form, the DOS Form, and any Form, Exhibit, or Schedule are hereby incorporated herein and made a part of this Agreement. As used in this authorization, you, your, or Company means the Company. We, us, or Bank means the Bank. Capitalized terms not otherwise defined in the Agreement are defined in Schedule A at the end of the Agreement. The General Terms and Conditions and separate sections for the Services within this Agreement also contain capitalized terms which are defined therein. This Agreement, including all terms and conditions, will also serve as disclosure for any Services you add in the future. This Agreement will be located on the internet page at or through the business banking log in (the Website ) and may be updated or amended from time to time. By signing the Master Authorization Form, you consent and agree that your Agent(s) may authorize and enroll in any Service and any applicable Form, Exhibit or Schedule electronically, including through the DOS Form. Part I below are the General Terms and Conditions that apply to all the Services. Following the General Terms and Conditions are the Service Sections which contain the terms and conditions applicable to each Service. Some Services require Company to complete additional forms which shall be attached to and made part of this Agreement, and which provide Bank with necessary information to set up the Service. The DOS Form, and in some cases additional forms, must be completed by you before using the applicable Service. You may begin using the Service when we have received the necessary forms. By completing the request for the applicable Services designated on the DOS Form and signing the Master Authorization Form or using a Service you are agreeing to be bound by the terms and conditions contained in Part I and the Services used by you in Part II, as amended from time to time, and to follow the procedures of each Service. This Agreement was updated in If you used a Service before this time, you should be aware that certain defined terms have changed names. Please see the attached Schedule A Definitions for details. Thank you for choosing Southwest Bank for your Treasury Management business needs. We appreciate the opportunity to serve you. If you have any questions about our Treasury Management Services or about this Agreement, please contact your treasury management representative at or TMS@southwestbank.com. 1

5 PART I: GENERAL TERMS AND CONDITIONS The following terms and conditions apply to all the Treasury Management Services provided by Bank. These Services currently include, but are not limited to, Internet, online Bill Payment, ACH Origination, Positive Pay, Remote Deposit Capture, Wire Transfer of Funds, Lockbox, Target/Zero Balance Accounts, Commercial Cash Sweep, Line of Credit Sweep Services, and FEDI Information Services (individually the Service, collectively the Services ). Bank and Company agree that this Agreement shall also govern all new Treasury Management Services used by Company in the future. Bank agrees to provide and Company agrees to purchase certain Services provided for and described in this Agreement and agrees to such terms and conditions of this Agreement. Company agrees as follows: 1.1 Authority, Representations and Warranties. Company hereby warrants that it has full right, authority and power to enter into this Agreement and that execution of the Master Authorization Form has been duly authorized by necessary governing bodies or executive officers, as the case may be. Company agrees to supply Bank any information that the Bank may reasonably request including, but not limited to, such documents as may be satisfactory to the Bank which establish the authority of any representative to enter into or act on behalf of Company in regards to this Agreement or to enter into the Services and or to perform any other act contemplated under this Agreement. Company further warrants that it is validly existing and in good standing under the laws of the applicable state and any consent or authorization of any governmental authority or third party required to be obtained by Company in connection with this Agreement or any Treasury Management Service used or performed has been obtained. Unless you have executed the Authorization to Link Company and Related Consumer Account(s) ( Authorization to Link Form ), you acknowledge, represent and warrant that the Services will not be used for accounts established primarily for personal, family or household purposes. Specifically, you acknowledge, represent and warrant that the transfer of funds from your Accounts is for business purposes and not for personal, family or household purposes. Accordingly, the provisions of the Federal Electronic Fund Transfer Act, as amended, and the Consumer Financial Protection Bureau s Regulation E, as amended, and any other laws or regulations, as well as any terms or provisions of this Agreement, intended for the protection of consumers or governance of transactions involving consumers or consumer accounts do not apply to any Service transactions affecting your Accounts. 1.2 Related Companies. If you have designated a Main Company as your Authorized Representative in the Master Authorization Form, you are a Related Company. Notwithstanding any provision of this Agreement to the contrary, by authorizing the Main Company as the Authorized Representative of Related Company, Related Company will not have access to the Services provided under this Agreement unless Related Company is designated as a User by Main Company. The Main Company shall designate the Administrator and the Administrator appointed by Main Company shall perform all functions and responsibilities of the Administrator under the terms of this Agreement. The Master Authorization Form contains the authority granted by Related Company to the Main Company and other representations and warranties made by Related Company. The Master Authorization Form shall control over any inconsistencies or conflicts between the terms of the Master Authorization Form and this Agreement. As a Related Company, you agree Bank may share information with affiliates, including but not limited to the Main Company, about your Authorized Accounts or Services for regulatory compliance, credit decision making, marketing company products and services, administrative and other banking purposes. As a Related Company, you agree that Main Company may authorize and enroll you in any Service and any applicable Form, Exhibit or Schedule executed by Electronic Signature, including through the DOS Form. In the event Main Company requests Bank to provide Services to you, Main Company and you agree to be jointly and severally liable for such obligations under this Agreement. You hereby represent and warrant to Bank that any and all transfers and commingling of funds required or permitted by any Service or requested by Main Company, and all other aspects of the performance hereby by Bank and Main Company, have been duly authorized by all necessary parties, including, without limitation, the account holder of each account, and that you have obtained and shall maintain in your regular business records and make available to Bank upon reasonable demand, for a period of seven years after termination of the Service, adequate documentary evidence of such authorization from the account holder of each account, executed by the duly authorized officer(s) of each account holder, and further represents and warrants that each transfer or commingling of funds authorized hereunder is not in violation of any agreement, by law or board resolution of your Company or any of its affiliates or subsidiaries, nor is it in violation of any applicable federal, state, local law, regulation, of any decree, judgment, order of any judicial or administrative authority. Each representation and warranty contained in this Agreement shall be continuing and shall be deemed to be repeated upon Bank s performing each transfer and commingling of funds authorized hereunder. 1.3 Designation of Authorized Accounts. Company shall designate on the DOS Form the Authorized Account(s), at Bank or other financial institutions to which Company wishes the Services to apply. Any changes in the designation of Authorized Accounts will be by Electronic Signature on the DOS Form and will provide reasonable prior notice of such change to Bank. The Authorized Account(s) with Bank affected by this Agreement shall continue to be 2

6 governed by the deposit agreement issued by Bank on such types of accounts, as it may be amended from time to time, except to the extent such agreement may be inconsistent with these terms. 1.4 Eligible Accounts. Bank will provide Company with Services through and using Commercial Analyzed Checking Accounts and Commercial NOW Account. Bank will provide Company with limited Services for Business Select Checking and Professional Checking. Business Essential Checking, Business Savings, Business Money Market Savings, Business Premier Savings, Line of Credit and Loan Accounts are not eligible for Services without one of the above referenced checking accounts. 1.5 Designation of Authorized Company Representative(s). Unless otherwise provided in this Agreement, the persons authorized to initiate a Service are designated on the Master Authorization Form. Bank shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been signed by the person or persons authorized, and any such communication shall be deemed to have been signed by such person. Any changes in the designation of persons so authorized shall be in writing by the delivery of a new Master Authorization Form and Company will provide reasonable prior notice of such change to Bank. 1.6 Deposit Account Terms and Conditions. Company acknowledges and agrees that Company's deposit accounts maintained with Bank (individually Account, collectively Accounts ) are an integral part of the Services offered by Bank and that all transactions and Services initiated or processed pursuant to this Agreement are subject to the terms and conditions of the rules, regulations and agreements ("Deposit Account Agreement") governing accounts in effect from time to time between Company and Bank including without limitation, the arbitration provisions. The Deposit Account Agreement is expressly incorporated herein by reference. The terms and conditions of this Agreement shall control over any inconsistent terms and conditions of the Deposit Account Agreement. Company acknowledges that it has signed and executed all agreements, resolutions, signature cards and forms governing Company's deposit account required by Bank. If Company has not signed the foregoing forms required by Bank, by signing the Master Authorization Form, Company acknowledges that it has read the contents of and agrees to be bound by the terms of those forms, agreements and documents, and adopts and ratifies, as an authorized signatory(s), the signature(s) of any person(s) who has signed a signature card or any check on Company's account. Company also agrees to establish all accounts that must be opened in conjunction with the Service provided by Bank. 1.7 Required Deposit Balance. Company agrees to maintain the minimum collected balance ( Required Deposit Balance ) in the amount and in the account specified in the Service terms and conditions of the specific Services selected and designated by Company. 1.8 Services. Upon Company s execution of the Master Authorization Form for this Agreement, and the DOS Form and any applicable schedules ( Schedules ), forms ( Forms ), and exhibits ( Exhibits ), Bank shall perform the Services selected by Company in accordance with the Service terms and conditions contained herein and the DOS Form governing the selected Service. Any instruction provided by Company to Bank, which may be communicated within the terms and conditions of the Service, by online screen instructions, Schedules, Forms, Exhibits, or other forms of written notice permitted by this Agreement, are made a part hereof. Some of the Services require Company to complete and provide to Bank information or documentation in, or as part of, Exhibits, Schedules, addenda, set up forms, in put forms or other documents required in connection with these Services. Company s use or continued use of each of such Services will be conditioned on and subject to Company entering into, or completing and providing to Bank, the foregoing when Bank so requests. Use of a Service under an existing agreement for such treasury management service will constitute affirmation that Company agrees to and is bound by the terms and conditions of this Agreement and the applicable Service terms and conditions and not the existing agreement. Certain Services included in this Agreement may not be available or may not be provided in certain market areas. 1.9 Effective Dates. The effective date of this Agreement shall be the date upon which the Master Authorization Form is executed by Company and accepted by Bank. Once the Company has signed the Master Authorization Form, the Company may request the Bank to provide Services which are provided for in this Agreement. Company may begin to use any such Service once Bank has approved such use and has received all required properly executed forms. Bank shall have no obligation to deliver or render the Service(s) until Bank has approved such use and received all required and properly executed forms. The effective date of the terms of a Service contemplated in Part II of this Agreement shall be the date upon which Bank approves Company's use of the Service or the date on which Company uses the Service Data and Information Supplied by Company. Company shall transmit or deliver data and other information in the format and on the media as provided for in each Service terms and conditions contained herein and the instructions ( Operating Instructions ) or as otherwise required by the Bank in conjunction with rendering the Service(s) selected by Company. Company shall have the sole responsibility of ensuring the accuracy and correctness of the data transmitted. Company acknowledges and agrees that Bank shall not examine the data for correctness and the Bank shall not have any 3

7 responsibility for detecting errors in the data transmitted by the Company. The data transmitted by Company must be legible, correct and complete. Bank shall not process, and Bank shall not be liable to Company for failure to process, the data if it is not in the format specified by Bank or if the data is incomplete. Bank shall not be liable for errors or omissions caused by data that is rejected as the result of Company's failure to provide the data in accordance with the standards specified in the Service terms and conditions and the instructions Update Notice. Company shall provide written notice to Bank of any changes to the information previously provided by Company to Bank, including, but not limited to, any additional locations, any change in business, any new business, the identity of principals or owners, the form of business organization, type of goods and services provided and method of conducting sales. Such notice must be received by Bank within 5 Business Days of the change. Company shall provide any additional information requested by Bank within 5 days of such request Security Procedures. Bank shall provide Company with one or more of the following: a Company ID, User ID or passwords (collectively, a Security Code ) to access certain Services. The use of the Security Code, in addition to other authentication methods described below, is a security procedure established by Bank to authenticate the identity of the person attempting to gain access to the Service ( Security Procedure ). The Security Procedure is not designed for the detection of errors. We may require you to change your Security Code from time to time for security reasons. You should keep your Security Code in a secure location. Any person having access to your Security Procedures will be able to access these Services and perform all transactions, including reviewing Account information and making Transfers to other Accounts and to other persons. You are responsible for safeguarding the Security Procedures. Providing these Security Procedures to another person effectively constitutes a grant of authority to access your accounts You agree to comply with the Security Procedures and any other procedures Bank directs you to use, and you acknowledge and agree that the Security Procedures, including (without limitation) any code, Security Code, password, personal identification number, user identification technology, token, certificate, layered security, or other element, means, or method of authentication or identification used in connection with a Security Procedure ( Security Devices ), constitute commercially reasonable security procedures under applicable law for the initiation of the Services you utilize, including without limitation, transfers and access to confidential information. You authorize us to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until you have notified us, according to notification procedures prescribed by us, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. You agree that the initiation of a transaction or instructions using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction or instruction notwithstanding any particular designation by you of authorized persons or signature requirements identified on any signature card or other documents relating to this Agreement or your deposit account maintained with Bank, and you agree and intend that the submission of transactions and instructions using the Security Procedures shall be considered the same as your authorized written signature in authorizing us to execute such transaction or instruction. You acknowledge and agree that you shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by you, to the fullest extent allowed by law. You further acknowledge and agree that the Security Procedures are not designed to detect error in the transmission or content of communications or transactions initiated by you and that you bear the sole responsibility for detecting and preventing such error You agree to appoint and designate, in the DOS Form, an administrator (the Administrator ) who will be authorized and responsible for creating and maintaining subsequent User IDs, Passwords and tokens on your behalf, including assigning and revoking access privileges for persons to use the Service, ( User ) and providing new and subsequent Security Devices to those Users. The Administrator can appoint a User with Administrator rights. Bank will provide Company s designated Administrator, through United States postal mail or other delivery service selected by Bank at Bank s option, with a Company ID, User ID number and Password (and token if applicable). Bank also may provide Administrator or User with temporary token codes. ONCE YOU APPOINT THE ADMINISTRATOR, THE ADMINISTRATOR WILL HAVE COMPLETE RIGHTS TO EVERY DESIGNATED SERVICE IN THIS AGREEMENT AND MAY DELEGATE SUCH RIGHTS TO ANY USER. Company understands that the Administrator has the capability of providing administrative privileges identical to that of the Administrator to any User (real or fictional), including the ability to create and maintain subsequent User accounts and assigning and revoking access privileges. Company acknowledges that any Administrator shall have the ability to control security levels such as Service access and Service transaction limits, including without limitation the ability to assign dollar amount limits to transfers of funds. You also agree that the Administrator or any User shall also have the authority on behalf of Company to electronically accept and approve any and all agreements and amendments to agreements by and between Bank and Company, including but not limited to this Agreement You agree to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to your authorized representative(s). You agree not to disclose or provide any Security Procedures or Security Devices to any unauthorized person. You also agree that Users shall not share Security Devices with each other. Where you have the ability to change or modify a Security Device from time to time (e.g., a password or User Name), you agree to change Security Devices frequently in order to ensure the security of the Security Device. You agree to notify us immediately, according to notification procedures 4

8 prescribed by us, if you believe that any Security Procedures or Security Device have been stolen, compromised, or otherwise become known to persons other than you or your authorized representative(s) or if you believe that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, we may issue you a new Security Device or establish new Security Procedures as soon as reasonably practicable, but we shall not be liable to you or any third party for any delay in taking such actions. You agree to indemnify, defend all claims, and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney s fees, caused by your, your employees, or agents failure to keep the Security Procedures or Security Device confidential and secure You agree to notify us immediately, according to notification procedures prescribed by us, if the authority of any authorized representative(s) shall change or be revoked. You shall recover and return to us any Security Devices in the possession of any of your authorized representative(s) whose authority to have the Security Device has been revoked We reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, or to cancel or replace any Security Device, at any time and from time to time in our discretion. We will endeavor to give you reasonable notice of any change in Security Procedures; provided that we may make any change in Security Procedures without advance notice to you if we, in our judgment and discretion, believe such change to be necessary or desirable to protect the security of our systems and assets. Your implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute your agreement to the change and your agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended Physical and Electronic Security Company is solely responsible for providing for and maintaining the physical electronic, procedural, administrative, and technical security of data and systems in Company s possession or under Company s control. Bank is not responsible for any computer viruses (including, without limitation, programs commonly referred to as malware, keystroke loggers, or spyware ), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system or any ACH Origination services. Any material downloaded or otherwise obtained is obtained at Company s own discretion and risk, and Bank is not responsible for any damage to Company s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. Company is solely responsible for maintaining and applying anti virus software, security patches, firewalls, and other security measures with respect to Company s operating systems, and for protecting, securing, and backing up any data and information stored in or on Company s operating systems. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Company s operating systems or accessed through an Internet connection Company acknowledges and agrees that it is Company s responsibility to protect itself and to be vigilant against e mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as phishing and pharming ). Company agrees to educate Administrator(s), User(s), Agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. Company acknowledges that Bank will never contact Company by e mail in order to ask for or to verify Account numbers, Security Devices, or any sensitive or confidential information unless Bank uses its Secured E Mail service. In the event Company receives an e mail or other electronic communication that Company believes, or has reason to believe, is fraudulent, Company agrees that neither Company nor its User(s), agents, and employees shall respond to the e mail, provide any information to the e mail sender, click on any links in the e mail, or otherwise comply with any instructions in the e mail. Company agrees that Bank is not responsible for any losses, injuries, or harm incurred by Company as a result of any electronic, e mail, or Internet fraud In the event of a breach of the Security Procedure, Company agrees to assist Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing Bank or Bank s agent access to Company s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure. Company further agrees to provide to Bank any analysis of such equipment, device, or software or any report of such analysis performed by Company, Company s agents, law enforcement agencies, or any other third party. Failure of Company to assist Bank shall be an admission by Company that the breach of the Security Procedure was caused by a person who obtained access to transmitting facilities of Company or who obtained information facilitating the breach of the Security Procedure from Company and not from a source controlled by Bank Electronic Communications. Company may elect to send or receive instructions or reports from Bank related to Services via electronic means, including, without limitation, facsimile transmission, voice mail, unsecured e mail, pager, or other telephonic methods ( Electronic Transmission ). Company acknowledges that such Electronic Transmissions are an inherently insecure communication method due to the possibility of error, delay, and observation or receipt by unauthorized personnel. Bank may rely in good faith on Company s instructions regarding how and to what number or e mail address Electronic Transmissions should be sent and may rely on any Electronic Transmission that it reasonably believes to have been initiated by Company. Should Company elect to send or receive Electronic Transmissions to or from Bank, Company assumes all risks and Bank shall not be liable for any loss that results from the non receipt, disclosure, or alteration of any such Electronic Transmission. 5

9 1.15 Hardware and Software. Company understands it must, and hereby agrees to, at its sole cost and expense, use computer hardware and software that meets all technical requirements for the proper delivery of the Service and that fulfills Company s obligation to obtain and maintain secure access to the Internet. Company understands and agrees it may also incur, and shall pay, any and all expenses related to the use of the Services, including, but not limited to, telephone service or Internet service charges. Company is solely responsible for the payment of any and all costs and expenses associated with meeting and maintaining all technical requirements and additional items necessary for the proper use of the Services. Company understands and agrees that it is solely responsible for the operation, maintenance and updating of all equipment, software and services used in connection with the Services and the cost thereof, and Company hereby agrees that it will perform, or cause to be performed, all vendor recommended maintenance, repairs, upgrades and replacements, and such performance shall be rendered by properly trained personnel, whether they are employees of Company or third party employees. Bank is not responsible for, and Company hereby releases Bank from any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet to deliver Services. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of Company s computer hardware or software. In addition to installing antivirus software, Company hereby agrees to scan its computer hardware and software on a regular basis (one or more times per month) using a reliable computer virus detection product in order to detect and remove computer viruses. In connection with its use of the Services, Company shall only use the hardware with systems in compliance with the requirements set forth by the Bank. All right, title and interest in and to (a) any and all computer programs, including, but not limited to, the object and source codes therefore, and any and all updates, upgrades, fixes and enhancements thereto, together with any and all documentation, user guides and instructions pertaining thereto (everything in this clause (a), collectively, Software ), and (b) any and all users guides, instructions and other documentation provided to, or used by, Company in connection with the Services (everything in this clause (b) collectively, the Documentation ) shall be, and remain, the property of Bank or any third party Software provider, as applicable. Unless otherwise expressly authorized, Company may not (a) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit, reverse engineer, reverse compile or create derivative works of, the Software in any form or (b) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit the Documentation. Company agrees not to: (a) put to issue the scope, validity, or ownership of the Bank's (or its licensors') intellectual property rights in any Proprietary Data or Service, (b) perform any act which could reasonably be expected to impair the scope, validity, or ownership of such intellectual property rights, (c) assert any ownership rights to any Software, Documentation or Service, or (d) remove or alter any copyright, trademark, or other intellectual property or proprietary right notices, legends, symbols, or labels appearing on or in any Software, Documentation, or Service. Company agrees to: (a) cooperate with the Bank and its licensors to protect the Software, Documentation, and Services, including in connection with any lawsuits or disputes involving the Software, Documentation and Services, (b) promptly notify the Bank and provide relevant information and facts upon becoming aware of any actual or potential claim made by a third party regarding infringement, misappropriation, imitation, illegal use or misuse, or reasonable likelihood thereof, by the Software, Documentation, or Service, and (c) in the event of any actual or potential infringement, misappropriation, imitation, illegal use or misuse, or reasonable likelihood thereof of the Software, Documentation, or Service by others: (1) grant to the Bank and its licensors the sole right to determine the course of action with respect to such infringement and to bring any proceeding with respect thereto, and to settle, and collect any settlement amount or judgment for any such proceeding, and (2) agree that such licensors shall be solely entitled to any proceeds of any such proceeding, including, without limitation, any settlement proceeds, insurance proceeds, arbitration award, judgment, or other consideration in any form. Company hereby assigns to the Bank or its licensors, as directed by the Bank, any rights, including any patent, copyright, mask work rights, trademarks, and trade secrets, which it may now have or may acquire at any time in the future to any Software, Documentation, or Service Internet Disclaimer. For any Service described herein utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank's network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Company's connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, Company's ability to connect to the Internet, or Bank's ability to connect to the Internet on Company's behalf Service Limits. Company agrees that Bank may establish limits or restrictions on Services provided in this Agreement and that Bank may establish and amend those limits. The limits or restrictions may apply to transaction amounts, types of accounts that are eligible for the Service, the frequency of the transactions or any other limits or restrictions that Bank deems necessary. Company agrees to abide by and honor the limits or restrictions established by Bank. Company also agrees that Bank shall have no liability to Company for refusal to process any 6

10 transaction or to act on any request by Company that exceeds the limit or restriction. Company acknowledges and agrees that Bank shall have the right in its sole discretion to change any limit established by Bank. Company and Bank may from time to time agree to temporary increases for ACH, RDC or Wire Services by signing, either physically or electronically, a temporary increase approval form Financial Information and Audit. Bank may from time to time request information from Company in order to evaluate a continuation of the Service to be provided by Bank hereunder or adjustment of any limits set by this Agreement. Company agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank. Company authorizes Bank to investigate or reinvestigate at any time any information provided by Company in connection with this Agreement and the Services. Upon request by Bank, Company hereby authorizes Bank to enter Company s business premises for the purpose of ensuring that Company is in compliance with the terms of this Agreement, applicable laws and regulations, and the National Automated Clearing House Association ( NACHA ) Operating Rules and Guidelines ( NACHA Rules ) and Company specifically authorizes Bank to perform an audit of Company s operational controls, risk management practices, staffing and the need for training and ongoing support, compliance with the NACHA Rules and this Agreement, and information technology infrastructure. Company hereby acknowledges and agrees that Bank shall have the right to mandate specific internal controls at Company s location(s) and Company shall comply with any such mandate. In addition, Company hereby agrees to allow Bank to review available reports of independent audits performed at the Company location related to information technology, the Service and any associated operational processes. Company agrees that if requested by Bank, Company will complete a self assessment of Company s operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by Bank in an audit of Company. If Company refuses to provide the requested financial information, or if Bank concludes, in its sole discretion, that the risk of Company is unacceptable, if Company violates the Service terms and conditions or the NACHA Rules, or if Company refuses to give Bank access to Company s premises, Bank may terminate the Service and this Agreement according to the provisions hereof Notices, Changes, and Amendments Notices and communications from Bank to Company regarding any Service or any change to this Agreement may be oral, in writing, postage prepaid by first class mail, or hand delivered, or may be delivered electronically, by facsimile or e mail, or via the Website. Bank s Notice to any agent, signer on any Authorized Account, Administrator, Company Authorized Representative, or User is notice to the Company. You agree that we may send notifications regarding changes in the terms of this Agreement and other notifications regarding any applicable Service to you in electronic form, either by posting such information, disclosures, and notices at our Website or by transmitting them, or notice of the availability thereof at our Website, to any e mail address that you have provided in connection with your use of any Service. You shall be deemed to have received electronic notices one (1) day after we post them at our Website or transmit them, or notice of the availably thereof at the applicable website, to your e mail address, as applicable, whether or not you have retrieved them by that time. You agree to frequently and regularly retrieve your e mail and review posted messages and information at our Website to ensure that you are aware of current terms, conditions, and information relating to our Services. We reserve the right at any time, in our discretion, to mail to your address that appears in our records, or otherwise transmit to you pursuant to any other method to which you have agreed in connection with your account(s) with us, paper copies of any information, disclosures or notices relating to our Services in lieu of or in addition to electronic versions thereof. You may choose to accept or decline changes by continuing or discontinuing the Services to which these changes relate. Your use of any Service after any change is delivered in any of the ways detailed above constitutes acceptance of the change in this Agreement. You agree to notify us of any changes to your mailing or e mail address. If you do not notify us, you will hold us harmless from any consequences, including financial loss, resulting from your failure to notify us of the change in your mailing or e mail address. Bank may change, add, or delete any procedures established pursuant to this Agreement, from time to time. Such changes shall automatically become effective immediately. If the Company rejects any such change, in writing, then the affected Service shall automatically terminate E mail You can contact us by e mail at tms@southwestbank.com. Sending an e mail is one way to communicate with us. However, you agree and acknowledge that e mail is not a secure method of communication. You should not send an electronic mail message if you need to communicate with us immediately. Do not use e mail to send banking instructions or to request Services provided through the system. Do not send account information, transaction information, or other confidential information via e mail. If you e mail us or ask us to reply to you via e mail, you agree to hold us harmless from any consequences, including financial loss, resulting from any unauthorized use or disclosure of your account or personal information resulting from e mail. Also, if you send us an electronic e mail, it will be deemed to have been received on the following Business Day. The Bank will have reasonable time to act on your e mail. We are not required to act on any e mail received and we are not responsible for misdirected or lost e mails Telephone You can contact us by telephone at ; Facsimile You can contact us by fax at ; Postal Mail You can write to us at: Southwest Bank Treasury Management Dept. P.O. Box

11 Fort Worth, TX In Person You may visit us in person at: 4100 International Plaza, Suite 900 Fort Worth, TX In the event there is a change by Company to any Schedules, Forms, or Exhibits, such change shall be by Electronic Signature on the DOS Form and shall not be effective until such time as it is received and accepted by Bank and Bank has had a reasonable opportunity to act on it. Any other modification or amendments by Company to this Agreement shall be in writing and signed by Company and shall be effective when expressly accepted by Bank Changes to Authorized Accounts and authorization of Agents, etc. shall be made pursuant to this Agreement. If Bank so elects, fee changes may be implemented concurrently with the requested changes or modifications. The Company shall reimburse Bank for any such changes or modifications as necessary Unless applicable law provides otherwise, Bank may at any time, with or without notice, amend Bank's fees (sometimes referred to as Fee Schedules ) and this Agreement. No representation or statement not expressly contained in this Agreement or in any amendment shall be binding upon Bank or Company. Bank may amend this Agreement by replacing it in its entirety with a new agreement In the event performance of the Service provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulations or government policy to which Bank is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Company as a result of such violation or amendment Any practices or course of dealings between Bank and the Company, or any procedures or operational alternatives used by them, shall not constitute a modification of this Agreement, nor shall they be construed as an amendment to this Agreement Deadlines. Company shall deliver or transmit all data or information to Bank by the deadline(s) specified in the Service terms and conditions and the Exhibits. Bank shall have no obligation to process data or perform the Service if the data is not received by the Bank by the specified deadline Statements. All transactions which result in a debit or credit to the Authorized Account initiated by the Company using the Services will be reflected on the Company s monthly account statements. The Company will notify Bank, within thirty (30) days after account statements are made available to Company, of any discrepancies between the account statements and the Company s records of transactions initiated through the Services. Failure of the Company to notify Bank within said time period of any such discrepancies will preclude the Company from asserting any claims for damages or other liabilities against Bank by reason of such discrepancies. Should Company timely notify Bank of a discrepancy, compensation, if any, for the loss of interest or use of funds due Company as a result of a Bank's error or Bank's failure to execute a Transfer Order on the date received (if such order was received prior to Bank's deadline and was submitted to Bank s satisfaction within the Security Procedures and Bank s Internet procedures) and when such execution or error was within Bank's control, will be for a period not exceeding the lesser of thirty (30) days of the period between the date of the order and the date of actual transfer or error correction, and will be either of the following forms at the option of Bank: (a) adjust Company's account balance(s) at Bank to properly reflect the average balances that would have occurred; or (b) reimburse Company an amount equal to interest at a rate not exceeding the four (4) week average of the 91 day T Bill computed on a daily basis for the period and amount involved. In any event, Bank shall not be liable for payment of damages arising out of, or in connection with, any Entry, payment order, wire transfer, or any other transfer after one year from the date of such transfer Checks and Other MICR Documents. Company shall purchase all checks and other Magnetic Ink Character Recognition ("MICR ) documents from vendors selected or approved by Bank. In the event that Company selects its own vendor for checks or other MICR documents, Company must submit sample documents to Bank for testing before the Service is rendered. Checks and other MICR documents must meet the standards and specifications selected by Bank in its own discretion. If Company encodes the amount or other information on checks, deposits or other items in magnetic ink, Company warrants that the information encoded is accurate and correct. In the event that the information is not encoded correctly, Bank shall have no liability for any loss, claim, action, or expenses, including reasonable attorneys' fees, arising out of such error. Without regard to whether Company purchases MICR items from a vendor selected by Company or by Bank, whether the MICR items meet the Bank's specifications, or whether the Company encodes its own items, the reject rate of the MICR items shall not exceed the rate established by Bank as provided in the Service terms and conditions contained herein or in the Operating Instructions. If the reject rate of Company's MICR documents exceeds Bank's established reject rate, Company agrees that Bank may, at its option, discontinue rendering the affected Service Remotely Created Checks. 8

12 If Company uses a Service wherein Company creates or deposits a Remotely Created Check, as that term is defined in Federal Reserve Board Regulation CC, Company warrants to Bank that the person on whose account the Remotely Created Check is drawn authorized the issuance of the Remotely Created Check in the amount stated on the check and to the payee stated on the check Payment for Services. Company shall pay Bank for the Services provided pursuant to Fee Schedules or other pricing information provided by Bank from time to time. The Company will maintain with Bank at least one Authorized Account for the purpose of providing Available Funds and for deposit of received funds in connection with the use of the Services. The Company agrees to maintain sufficient Available Funds in the Authorized Account(s) to support any transaction initiated under the Services and to cover any fees the Company is obligated to pay under this Agreement. Any fees for Services may be amended by Bank at any time. Bank may, at its option, include fees arising from this Agreement in an analysis statement of Company s account relationship, bill Company, or debit Company s Authorized Account(s) for the Services rendered. Bank may, without prior notice or demand, obtain payment from Company for any of its obligations under this Agreement by debiting any account of the Company at Bank. If at any time there are not sufficient collected funds in the Authorized Account to cover all outstanding transactions and other payment obligations of the Company under this Agreement, Company agrees to immediately pay Bank, on demand, the amount of any deficiency in such outstanding transactions and obligations. All other account agreements and all fees and charges relating to Authorized Accounts remain applicable to the Authorized Account(s) and Bank s remedies set forth in those agreements are cumulative. In addition to the Service fees, Company agrees to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, this Agreement, or the software or equipment made available to Company (excluding any income tax payable by Bank). Company is also responsible for the costs of any communication lines and any data processing charges payable to third parties Security Interest/Right of Set Off. To secure the payment and performance of Company s obligations set forth herein, Company grants to Bank a security interest in and pledges and assigns to Bank all of Company s right, title, and interest in the following described property, whether now owned or hereafter existing or acquired and wherever located: (a) all monies, instruments, savings, checking and other accounts of Company (excluding IRA, Keogh, trust accounts and other accounts subject to tax penalties if so assigned) that are now or in the future in Bank s custody or control; (b) any other collateral described in any security instrument securing the obligations of Company to Bank under this Agreement or any other obligation of Company to Bank; and (c) all proceeds and products of the property as well as any replacements, accessions, substitutions, and additions to any of the above. Company hereby acknowledges and agrees that Bank shall have a right of setoff and may offset and charge against any and all of Company s Account(s), any liability, obligation, or indebtedness of Company to Bank, including, without limitation, any line of credit, loan, or other extension of credit made by Bank to Company and the amount of any fees, Returns, Refunds, and other charges owed by Company to Bank No Obligation to Lend Money. Company and Bank covenant and agree that nothing in this Agreement shall be deemed to constitute a credit facility of any kind or nature whatsoever in favor of Company even if the Services rendered are in conjunction with a line of credit or even if the Service terms and conditions make reference to a line of credit. Company represents and warrants to Bank that it understands and acknowledges that this Agreement does not create any right to borrow funds from Bank and that Bank has no obligation to lend funds to Company in providing the Services that are the subject of this Agreement. In the event that Bank shall perform a Service for Company that creates an overdraft on the Company's account(s) such action(s) by Bank will not establish a course of dealing or conduct between the parties that would require Bank to perform any subsequent Service which would also create an overdraft Stop Payment Orders. Unless otherwise specified in the Service terms and conditions, any stop payment order which Company wishes to place on a check drawn on an account that is the subject of this Service or is otherwise related to this Service shall be placed in accordance with the Bank's normal stop payment procedures for other accounts in effect at that time Bank Shall Not Examine Items. Except as otherwise specifically provided in this Agreement, Company acknowledges and agrees that Bank will not examine checks, drafts and other items issued by Company or payable to Company and received by Bank and processed in conjunction with the Service rendered by Bank. Therefore, legends and other instructions placed on items by Company or other parties, such as, but not limited to, "not valid over $500, "void after 90 days," "full accord and satisfaction," shall not be discovered by Bank, shall not be binding on Bank and shall not be enforceable against Bank. Likewise, Bank shall not discover alterations, postdated checks, stale dated checks, number of required signatures on checks, or discrepancies between the amount of the check or item as written in numbers and words, or other irregularities on the face of the check or item. Company further acknowledges and agrees that Bank shall not be liable to Company for any loss that Company may suffer as the result of Bank's processing items containing such legends, instructions, irregularities or signature requirements Confidential Information 9

13 All information of a business nature relating to the assets, liabilities or other business affairs disclosed to Bank by Company and Company's customers in connection with this Agreement and the Services provided is confidential. Except as allowed by applicable law, Bank shall not disclose or permit access to any such information by any person, firm or corporation. Bank shall cause its officers, employees and agents to take such action as shall be reasonably necessary to preserve and protect the confidentiality of such information, by disclosing such information only to persons needing to have access thereto for the performance of the Bank s obligations under this Agreement or to any other party to which Bank may be required by law to report such information. Company agrees to hold confidential, and to use only in connection with the Service, all information furnished to Company by Bank or by third parties from whom Bank has secured the right to use the Service, including, but not limited to, Bank's product and service pricing structure, system design, programming techniques or other unique techniques. In addition, should Company at any time receive or acquire any information relating to another Company of Bank, Company shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for its own benefit or otherwise. Bank s and Company's obligations and agreements under this Agreement shall not apply to any information supplied that was known to either party prior to the disclosure by the other, is or becomes generally available to the public other than by breach of this Agreement or otherwise becomes lawfully available on a non confidential basis from a third party who is not under an obligation of confidence to either party. Notwithstanding anything to the contrary contained herein, it is understood and agreed by the parties hereto that the performance of the Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation or a State regulatory agency, and Company agrees to the release by Bank of Company's reports, information, assurances and other data and information as may be required under applicable laws and regulations Bank Liability Bank shall only be liable to the Company under this Agreement for its gross negligence or willful misconduct in performing Services for Company. To the extent allowed by law, BANK S LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF (1) YOUR ACTUAL DAMAGES OR (2) THE TOTAL FEES ACTUALLY PAID BY YOU AND RECEIVED BY BANK FOR THE SERVICE FOR WHICH A CLAIM IS MADE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WHICH SHALL BE DETERMINED BY THE EARLIER OF THE DATE WHEN YOU FIRST BECAME AWARE OF THE CLAIM OR THE DATE WHEN, THOUGH THE EXERCISE OF REASONABLE CARE, YOU REASONABLY SHOULD HAVE BECOME AWARE OF THE CLAIM. Bank shall have no liability or responsibility to Company with regard to any other matter, including, without limitation, its failure to honor a transaction if the Authorized Account has insufficient Available Funds, its negligence, or breach of contract (unless it constitutes gross negligence or willful misconduct), any act or omission by any automated clearinghouse ( Automated Clearinghouse ) and any other financial institution, including the Federal Reserve Bank, SWIFT, NACHA, and South Western Automated Clearinghouse Association. Bank shall have no liability to Company for any nonperformance, damages, or losses due to strike, breakdowns (including mechanical and electrical), non functioning of equipment, impossibility of performance, incompatible software or hardware, electronic data corruption, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor disputes, flood, hurricane, war, riot, theft, earthquake, natural disaster, default of common carriers or Vendors or Third Party Networks, suspension in payments by another financial institution, or other causes or circumstances beyond Bank s reasonable control, sometimes known as Force Majeure. Bank s liability for loss of interest shall be calculated by the four (4) week average of the 91 day T Bill for the period and amount in question. Company shall promptly furnish to Bank written proof of any loss attributable to a Service and shall provide all reasonable assistance to Bank in recovering the loss. If Company is reimbursed for any loss by Bank, Bank shall be subrogated to all rights of Company related thereto. Notwithstanding the provisions set forth above, any liability of Bank for a transfer incorrectly made shall be limited to the amount of such transfer which is not recovered within a reasonable period of time. Company agrees that Bank, its officers, employees, agents, affiliates, attorneys, and contractors (collectively, the Bank Parties ) will not be liable for the quality of performance or lack of performance of any computer software or hardware supplied by Bank to Company The Bank will not be liable for: (1) the failure of Company to maintain its security, (2) the Company s acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal, or due authorization of any Entry received from the Company, (3) nonperformance, malfunction, or incompatibility of Company s hardware or software, or the malfunction of the information reporting system beyond Bank s reasonable control, (4) any cause except the gross negligence or willful misconduct of Bank s employees, (5) acts and omissions of transferee institutions and their personnel, or (6) any and all claims or damages resulting from, or related to, any computer virus, unauthorized intrusion or related problems that may be associated with using electronic mail, the Internet, or the Company s equipment THE BANK PARTIES WILL NEVER BE LIABLE OR RESPONSIBLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES OR LOSSES, INCLUDING LOST PROFITS OR LOST SAVINGS (WHETHER THE CLAIM IS IN CONTRACT, TORT, OR OTHERWISE, AND WHETHER OR NOT ANY OF THE BANK PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES) AND INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM BANK S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT Bank's responsibility to Company under this Agreement is limited to the exercise of ordinary care. If Bank substantially complies with the procedures in this Agreement, in the DOS Form, and in the applicable Schedules, Forms, or Exhibits, Bank will be considered to have exercised ordinary care. If Bank occasionally and unintentionally deviates from the procedures in this Agreement, in the DOS Form, or 10

14 in the applicable Schedules, Forms, or Exhibits, the deviation will not be considered to be a failure to exercise ordinary care in respect to the transactions in which they occurred. Company and Bank agree that clerical errors and mistakes in judgment do not constitute a failure to exercise ordinary care or to act in good faith This section shall survive the termination of this Agreement and any Schedules, Forms, and Exhibits. NO THIRD PARTY WILL HAVE RIGHTS OR CLAIMS AGAINST THE BANK UNDER THIS AGREEMENT Company may request Bank to provide deposit reporting services based on information provided by the Company. Bank has no responsibility for the accuracy of any information provided by Company. In addition, Company acknowledges that Bank system information regarding deposit balances may not include pending transactions, including deposits, withdrawals, and returns, which will determine the actual balance at any given time Company Liability Company shall be responsible for compliance with all rules and regulations of any local, state, or federal entity, the NACHA Rules, and with all operating procedures of Bank which are communicated to Company to the extent the same are applicable to Company. Company may utilize a courier, armored or otherwise, to deliver or receive banking transactions, and in so doing, agrees at all times and in all respects that the (1) courier is the agent of Company and not of Bank, (2) Bank makes no representation or warranty regarding, and assumes no responsibility with respect to, any services performed or promised by courier, and (3) Company assumes all risk of loss (including loss or theft by third parties or employees of Company or courier) prior to Bank s acceptance of deliveries from courier and subsequent to courier s acceptance of deliveries from Bank. Company agrees it and courier will be responsible for all loss recovery procedures and processes, although Bank will undertake reasonable efforts to facilitate loss recovery COMPANY WILL INDEMNIFY AND HOLD THE BANK HARMLESS FROM ANY CLAIM, LOSS, PENALTY, ASSESSMENT, COST OR DAMAGE, WHETHER IN CONTRACT OR IN TORT (INCLUDING REASONABLE ATTORNEYS' FEES), AND ARISING OUT OF ANY ERRORS, NEGLIGENCE, ACTION, NON ACTION, OR INVOLVEMENT BY COMPANY OR BANK PARTIES, OR THEIR RESPECTIVE OFFICERS (INCLUDING INDIVIDUALS PORTRAYING THEMSELVES AS OFFICERS), EMPLOYEES, AGENTS, AFFILIATES, CONTRACTORS, AND ATTORNEYS, UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THOSE ASSERTED BY THIRD PARTIES FOR REIMBURSEMENT OR DAMAGES, THOSE RESULTING FROM A BREACH OR NONCOMPLIANCE OF SUCH RULES, REGULATIONS, OR OPERATING PROCEDURES BY COMPANY, THOSE RESULTING FROM THE DELAY OF ANY CLEARINGHOUSE OR ANY FINANCIAL INSTITUTION OTHER THAN BANK IN CREDITING, OR THE FAILURE OF SUCH INSTITUTION TO CREDIT THE AMOUNT OF ANY TRANSACTION, AND THOSE WHICH ARISE OUT OF OR UNDER THE ELECTRONIC FUNDS TRANSFER ACT, ANY APPLICABLE STATE ELECTRONIC FUND TRANSFER RULES OR REGULATIONS, THE NACHA RULES, OR ANY RULES OR GUIDELINES OF ANY AUTOMATED CLEARINGHOUSE, except that such indemnification by Company of Bank Parties shall not apply to those losses caused solely by the Bank s gross negligence or willful misconduct. Company agrees to hold Bank Parties harmless from any and all losses, costs, suits, expenses, liabilities, damages, and attorneys fees arising from or related to Bank Parties acting in good faith in accordance with instructions or information if it has followed the procedures as contained in this Agreement, and agrees that Bank assumes no responsibility beyond its duty to exercise ordinary care. Company shall indemnify Bank for any loss or liability from the breach of any of the warranties of an originating bank caused by Company for any Entries initiated by Company. Company agrees to hold Bank Parties harmless for all damages resulting from Company s failure to follow all of its or Bank s Security Procedures and the terms of this Agreement Representations and Warranties COMPANY REPRESENTS, WARRANTS, AND COVENANTS TO AND WITH BANK THAT (1) IT IS DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING IN THE STATE OF ITS ORGANIZATION, (2) THE EXECUTION, DELIVERY, AND PERFORMANCE OF ALL DOCUMENTS OR AGREEMENTS PROVIDED IN CONNECTION WITH ANY SERVICE ARE WITHIN ITS POWERS, HAVE BEEN DULY AND VALIDLY AUTHORIZED, AND DO NOT CONTRAVENE ITS CHARTER, BY LAWS, OR ANY INDENTURE, AGREEMENT, UNDERTAKING, LAW, REGULATION, OR ORDER BINDING IT, (3) NO APPROVAL, CONSENT, OR AUTHORIZATION OF ANY GOVERNMENT AUTHORITY IS NECESSARY FOR COMPANY TO OBTAIN ANY SERVICE FROM BANK, AND (4) THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT ARE VALID AND BINDING OBLIGATIONS OF COMPANY ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS EXCEPT AS REQUIRED BY LAW, SERVICES ARE PROVIDED FOR COMPANY'S BENEFIT "AS IS" AND "WHERE IS," AND BANK MAKES NO REPRESENTATIONS, WARRANTIES, AGREEMENTS, OR GUARANTEES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE INCLUDING, WITHOUT LIMITATION (1) ANY REPRESENTATIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO ANY ITEMS OR SERVICES PROVIDED BY BANK TO COMPANY, (2) ANY WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE STATE IN WHICH BANK MAINTAINS COMPANY'S AUTHORIZED ACCOUNTS, (3) ANY WARRANTIES WITH RESPECT TO COMPLIANCE WITH THE ELECTRONIC FUNDS TRANSFER ACT OR REGULATION E OF THE CONSUMER FINANCIAL PROTECTION BOARD, (4) THE NACHA RULES OR ANY RULE OR REGULATION OF ANY AUTOMATED CLEARING SYSTEM, OR (5) ANY STATE ELECTRONIC FUNDS TRANSFER STATUTE OR REGULATIONS. NO DESCRIPTIONS OR SPECIFICATIONS OF THE SERVICES SHALL CONSTITUTE REPRESENTATIONS OR WARRANTIES OF ANY KIND ACCOUNT BALANCES CHANGE PERIODICALLY THROUGHOUT THE DAY DUE TO THE TIMING OF TRANSFERS AND OTHER BANKING TRANSACTIONS. THE BANK MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF ANY INFORMATION THE 11

15 COMPANY RECEIVES WHEN ACCESSING INFORMATION ABOUT ITS AUTHORIZED ACCOUNT(S). THE BANK DOES NOT GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY, ADEQUACY, OR COMPLETENESS OF SUCH INFORMATION. THE BANK GIVES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE) WITH RESPECT TO THE INFORMATION Information Sharing Company agrees Bank may share information with affiliates about Authorized Accounts or Services for regulatory compliance, credit decision making, marketing company products and services, administrative and other banking purposes In the event Company requests Bank to provide Services to a parent company, subsidiary, affiliate, or other commonly owned entities, Company agrees it shall be jointly and severally liable for such Company s obligations under this Agreement. Company hereby represents and warrants to Bank that any and all transfers and commingling of funds required or permitted by any Service or requested by Company, and all other aspects of the performance hereby by Bank and Company, have been duly authorized by all necessary parties, including, without limitation, the account holder of each account, and that Company has obtained and shall maintain in its regular business records and make available to Bank upon reasonable demand, for a period of seven years after termination of the Service, adequate documentary evidence of such authorization from the account holder of each account, executed by the duly authorized officer(s) of each account holder, and further represents and warrants that each transfer or commingling of funds authorized hereunder is not in violation of any agreement, by law or board resolution of Company or any of its affiliates or subsidiaries, nor is it in violation of any applicable federal, state, local law, regulation, of any decree, judgment, order of any judicial or administrative authority. Each representation and warranty contained in this Agreement shall be continuing and shall be deemed to be repeated upon Bank s performing each transfer and commingling of funds authorized hereunder If Bank receives an adverse claim against any account, and Bank reasonably believes that it will not be protected if the claim is ignored or that Bank has a legal obligation to comply with the claim, Company agrees Bank may place a hold on the affected account or move the disputed funds to a holding account. Any such action will remain in place only so long as reasonably necessary to resolve the claim or employ legal remedies to allow a court to decide such claim. Bank shall have no liability for dishonored transactions which result from such action, and Company agrees to reimburse Bank for all costs, including attorney fees, incurred due to such adverse claim Compliance with Laws, Rules, and Regulations. Company agrees to comply with all existing and future operating procedures used by the Bank for processing of transactions. Company further agrees to comply with and be bound by all applicable state or federal laws, rules and regulations affecting the use of checks, drafts, fund transfers, and ACH transactions, including but not limited to, rules and procedural guidelines established by the Federal Trade Commission (FTC), the Board of Governors of the Federal Reserve, the NACHA Rules and any other clearinghouse or other organization in which Bank is a member or to which rules Bank has agreed to be bound. These laws, procedures, rules, regulations, and definitions shall be incorporated herein by reference. The ACH Applications Chart that includes the SEC Codes and summary description of each application is found online at our Website. The ACH Applications Chart is hereby incorporated by reference and made a part of this Agreement. Company agrees to comply with and follow the ACH Application Chart Prohibited Transactions. Company agrees not to use or attempt to use the any Service (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, (b) to breach any contract or agreement by which Company is bound, (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (d) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Company acknowledges and agrees that Bank has no obligation to monitor Company s use of any Service for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement Relationship of Parties. Company and Bank acknowledge and agree that the relationship of Bank and Company is that of an independent contractor and that this Agreement does not establish or create a general agency, joint venture, partnership, or employment relationship between them Force Majeure. The Bank shall not be responsible for any liability, loss, or damage resulting from Bank's failure to perform any Service or to perform any other obligations under this Agreement which is caused by an act of God, fire, floods, adverse weather or atmospheric conditions or other catastrophes; war, sabotage, riots, acts of public enemy, or acts of governmental authority or the Board of Governors of the Federal Reserve; labor difficulties; equipment or computer failure or destruction or the unavailability, interruption, or malfunction of communications facilities or utilities; delays or failure to act by Company or third parties and their personnel; criminal acts; or generally any cause reasonably beyond the Bank's control. 12

16 1.38 Reimbursement. Any reimbursement by Bank for any liability hereunder may be made either directly to Company or by adjustment of the aggregate ledger and collected balances of Company's Accounts Termination This Agreement will continue in full force and effect until all of the Services have been terminated. Any of the Services may be terminated at any time by either party upon written notice to the other party. Only the Service(s) specified in such notice will be terminated, and no other of the Services will be affected. All provisions relating to indemnification, limitations of liability, and confidential information will survive termination. Even if this Agreement or any or all of the Services are terminated under this subsection, this Agreement shall continue in full force and effect as to all transactions that the Bank began processing before such termination However, Bank may terminate Company s access to and its ability to transact any Service at any time, effective immediately upon Bank s decision. Bank shall use reasonable efforts to give notice of the termination to Company promptly, and will then provide written confirmation of the termination if the initial notice of termination was not communicated in writing. Bank may require execution of additional documents or agreements to continue to transact business using any particular Service If Company terminates, such termination shall not be effective until it is actually received and acknowledged by Bank. Since the service cancellation request can take several days to process, Company should cancel all outstanding payment or transfer orders or other pending transactions, in addition to notifying Bank of its desire to terminate the Service. Bank will not be liable for payments, transfers, or other transactions not cancelled or payments, transfers or transactions made due to the lack of proper notification by Company of the Service termination or discontinuance for any reason Upon termination of any or all of the Services under this Agreement, all computer software licenses, if any, granted by the Bank to the Company with respect to those terminated Services shall automatically terminate. The Company shall immediately return to the Bank the original and all copies made of all computer software programs licensed by the Bank to the Company and all other documentation or materials provided to the Company by the Bank in connection with the terminated Service(s). All sums or fees Company owes to Bank for any Service shall be due and payable in full immediately upon the termination of the Services If Company uses any software product provided by Bank in connection with the Services, and subject to any requirements placed on Company by the Texas Public Information Act, Company agrees that Bank has a proprietary interest in such software, as well as any records, codes, files, or systems which accompany it or are provided in connection with it (collectively, "Software and Related Items"). Company agrees not to disclose the Software and Related Items except to its employees on a "need to know" basis. Company also agrees not to disclose, and to instruct its employees not to disclose, the Software and Related Items to anyone else. If Company ceases to use the applicable Bank services, Company will return to Bank all the Software and Related Items it has received from Bank This Agreement shall be binding upon and inure to the benefit of the Bank and the Company and their respective legal representatives, successors, and assigns. This Agreement is not for the benefit of any other person, and no other person shall have any right against the Company or the Bank under this Agreement Suspension of Services. Without liability to any party, and without limiting any other right or remedy available to Bank, Bank shall be entitled to cease or suspend any Service, in whole or in part, in Bank s sole discretion and with or without notice to Company Arbitration and Waiver of Jury Trial. Unless prohibited by applicable law, any controversy, claim, dispute or issue arising before or after the effective date of this Agreement related to or arising from (1) the interpretation, negotiation, execution, assignment, administration, repayment, modification, or extension of this Agreement; (2) any charge or cost incurred under this Agreement; (3) the collection of any amounts due under this Agreement; (4) any alleged tort related to or arising out of this Agreement; (5) any breach of any provision of this Agreement, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the AAA Rules ). Any disagreement as to whether a particular dispute or claim is subject to arbitration under this paragraph shall be decided by arbitration in accordance with the provision of this paragraph. Commencement of litigation by any person entitled to demand arbitration under this paragraph shall not waive any right that person has to demand arbitration with respect to any counterclaim or other claim that may be made against that person, whether in, relating to, or arising out of such litigation, or otherwise. The expedited procedures of the AAA Rules shall apply in any dispute where the aggregate of all claims and the aggregate of all counterclaims each is in an amount less than $500,000. The arbitrator(s) may award all remedies that a court could award. Judgment upon any award rendered by the arbitrator(s) in any such arbitration may be entered in any Court having jurisdiction thereof. Any demand for arbitration under this Agreement shall be made no later than the date when any judicial action upon the same matter would be barred under any applicable statute of limitations. Any dispute as to whether the statute of limitations bars the arbitration of such matters shall be decided by arbitration in accordance with the provisions of this paragraph. The locale of any arbitration proceedings under this Agreement shall be Fort Worth, Texas. The arbitrator(s) in any such arbitration shall establish such reasonable procedures as may be necessary for the reasonable exchange of information between the parties prior to such arbitration. Any arbitration under this paragraph shall be on an individual basis between the parties to this Agreement only 13

17 and shall not be commenced, as a member or representative of or on behalf of a class of persons, it being the intention of the parties that there shall be no class action arbitration under this Agreement. Company and Bank specifically acknowledge and agree that this Agreement evidences a transaction involving commerce under the Federal Arbitration Act, and Company and Bank each hereby waive and relinquish any right to claim otherwise. With respect to disputes submitted to arbitration, Company and Bank each waive all rights to a trial by jury Governing Law. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas, except to the extent the Federal law is controlling or provides greater rights or remedies to Bank. The UCC or Code shall mean the Uniform Commercial Code as adopted and amended in Texas. Automated Clearinghouse ( ACH ) services shall also be governed by all applicable state or federal laws, rules, and regulations affecting the use of checks, drafts, and ACH transactions, including, but not limited to, rules and procedural guidelines established by the Federal Trade Commission ( FTC ) and the NACHA Rules. These laws, procedures, rules, regulations, and definitions shall be incorporated in this Agreement by reference. It shall be the responsibility of Company to ensure that each ACH transaction, wire transfer, Remote Deposit Capture transaction, and check conversion complies with all applicable laws, rules, and regulations. This includes, but is not limited to, the Electronic Funds Transfer Act and its implementing Regulation E, Check Clearing for the 21 st Century Act ( Check 21 ), and sanctions enforced by the Office of Foreign Assets Control ( OFAC ). It shall further be the responsibility of Company to obtain information regarding such OFAC enforced sanctions (OFAC Compliance Hotline OFAC). Venue of any litigation involving this Agreement, to the exclusion of all other venues, must be maintained in a court of competent jurisdiction located in Tarrant County, Texas where this Agreement is performable. For any dispute regarding any Service, this designation of governing law will prevail over any other designation of governing law that may be contained in other agreements on the Website applicable to the Service Attorneys Fees. In the event of any conflict pertaining to the subject matter of this Agreement in addition to any remedies provided in this Agreement or by applicable law, the prevailing party shall be entitled to recover all costs and expenses incurred by the prevailing party in defending itself or in enforcing its rights, including, without limitation, court costs, fees of consultants, and reasonable attorneys fees Miscellaneous Provisions Headings. The headings and captions contained herein are included only for convenience of reference and do not define, limit, explain, or modify this Agreement or its interpretation, construction, or meaning Severability. Should any provision of this Agreement, the DOS Form, or any Addendum hereto including any Schedules, Forms, or Exhibits, contravene or conflict with any applicable present or future law or regulation of any regulatory agency, or should any provision be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, then each such provision shall be void. This Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation, or policy and all other provisions of this Agreement, or any Addendum hereto, including any Schedules, Forms, or Exhibits, shall remain in full force and effect. Bank shall not incur any liability to the Company as a result of such violation or amendment Waiver. No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of Company shall bind the Bank to waive the same term, condition, or obligation again, nor shall any other provision, condition, term, or obligation hereof be affected by such a waiver Binding Effect. This Agreement shall inure to the benefit of and be binding upon the successors, trustees, and permitted assigns of the parties hereto Incorporation by Reference. The Master Authorization Form, the DOS Form, and any exhibit and appendix to this Agreement and any exhibit to each such appendix, or on screen instructions (including the Services) which are referred to herein or, whether delivered or accessed in physical or electronic format, as amended from time to time pursuant to the provisions hereof, shall be deemed incorporated herein by reference thereto and shall become a part of this Agreement as if fully set forth herein Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof. All contemporaneous agreements or understandings concerning the subject matter hereof, whether oral or written, are merged into this Agreement Transfers and Assignments. Company cannot transfer or assign any rights or obligations under this Agreement without Bank's written consent. Bank may assign its rights and delegate its duties under this Agreement to a company affiliated with Bank or to a third party Cooperation in Loss Recovery Efforts. In the event of any damages for which Bank or Company may be liable to each other or to a third party pursuant to the services provided under this Agreement, Bank and Company will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party. 14

18 Tapes and Records. All magnetic tapes, Entries, security procedures and related records used by Bank for transactions contemplated by this Agreement shall be and remain Bank s property. Bank may, at its sole discretion, make available such information upon Company s request. Any expenses incurred by Bank in making such information available to Company shall be paid by Company Recording and use of Communications. Company and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement may be electronically recorded and retained by either party by use of any reasonable means. Bank shall not be obligated to make such recordings Construction. This Agreement is an agreement between parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by this Agreement, is entered into by both parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner, without regard to such factors as the party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties or the domicile of any party Business Day. Business Day as used throughout this Agreement shall mean Monday through Friday excluding Federal Holidays, which the principal office of Bank, located at 4100 International Plaza, Suite 900 Fort Worth, Texas, is open for substantially all of its business. Federal Holidays may be found at our Website Use of Trademarks. Company may not use Bank s name or trademarks without the express written consent of Bank. If Company is permitted to use any of Bank s name, trademarks or promotional materials, Company will not indicate, directly or indirectly, that Bank indorses, or is connected in any way with, any of Company s goods or services Absent manifest error, the records of Bank shall be conclusive evidence with respect to the matters governed by this Agreement Further Assurances. The parties agree to execute and deliver all additional documents and give all further assurances reasonably necessary to carry out the intent of the parties with respect to these Services Ownership of Website. The content, information and offers on our Website are copyrighted by Bank or Vendor and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited. You agree not to copy, display, distribute, download, license, sub license, modify, publish, repost, reproduce, reuse, sell, transmit, create a derivative work from or otherwise use for public or commercial purposes, the information and materials on the Sites, except as provided in this Agreement, without our express written permission. Unless otherwise noted, all other trademarks, service marks, and logos used on the Bank s sites are the trademarks, service marks or logos of Bank, or others as indicated. PART II: ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SERVICES SECTION ONE: INTERNET SERVICES 1.1 Upon Company s selection and completion of the DOS Form or upon its use of such Service ( Internet Service(s) ), Bank shall provide the Internet Services and Company agrees to, and shall be bound by, the terms, conditions and provisions in this Internet Services Section One, including those for each Service which Company has selected. Bank, in its sole discretion, may not permit Company to use the Internet Services until Bank has determined that Company has accepted or executed the applicable documentation and otherwise provided appropriate information and specifications for the use of the Service, and until Bank has had a reasonable opportunity to receive and review this documentation for proper execution by an authorized signatory and activate the Service. In any event, Company agrees that the use by Company of any Service shall, without any further action or execution or acceptance of any documentation on the part of Company, constitute Company s acceptance of and agreement to Bank s terms and conditions for the use of such Service as may be in effect as of the time of such usage, whether set forth in this Agreement or otherwise prescribed by Bank. In order to activate the Service, you must have at least one Account with us linked to the Service Account or Accounts means one or more checking, savings, money market deposit or loan account that you have with us "Account Access" means your ability to access account and transaction information on Accounts and transfer funds between Accounts through the Internet "Account Agreement" means the agreement between you and us that governs the use of your Account including the deposit account agreement, any funds availability agreement, electronic funds transfer agreement or disclosure, line of credit agreement, and our schedule of fees and charges Business Day(s) is defined in Schedule A and generally means 9:00 a.m. to 6:00 p.m. Central Time (Standard or Daylight) ( CST ) Monday through Friday. Federal Holidays are not included. Transaction deadlines will be posted on the Website and may vary from this definition Deposit Account Agreement has the meaning provided in Part 1, Section

19 Electronic means electrical, digital, magnetic, wireless, optical or electromagnetic technology, or any other technology that entails similar capabilities Funds transfer or Transfer means a transfer of funds, initiated through online banking service, from one eligible account to another Password means the confidential identification number or other code assigned to you by us or selected by you for identification purposes in connection with the use of our Services Payee means any individual, financial institution, educational institution, company, merchant or other entity you wish to pay using a Service PC means personal computer (including any personal data assistant or other wireless access device) that meets the requirements for use of the Services Transfer Day means any Business Day, no later than the time indicated on the Website. 1.2 Eligibility. To have access to the Services you must be an authorized user of the Software you select. You must also have at least one eligible deposit or loan account with us. If you are authorized to have access to more than one Account, we will link the Accounts together. Accounts which are "linked" under the Services will be owned by the Company or any Related Companies or any Related Consumers and have one common Company Authorized Representative. Any Common Authorized Representative, acting alone, must be authorized to access a linked account. Any non linked account will not be accessible through the Service. The Service will not automatically link together Accounts with different ownerships or business accounts with personal accounts. In order to link such Accounts together you must list all Authorized Accounts on the DOS Form. 1.3 Security Procedure and Access. Company must follow the Security Procedures prescribed by Bank to gain access to the Internet Service. Services are generally accessible 24 hours a day, seven days a week, except that the Services may be inaccessible for a reasonable period on a daily basis for system maintenance. We are not liable under this Agreement for failure to provide access due to a system failure or due to other unforeseen acts. We may modify, suspend, or terminate access to the Services at any time and for any reason without notice or refund of fees you have paid. The Bank may change the terms and conditions of this Agreement from time to time to conform with changes or advancements in our services, or as required by law or regulation. All such changes will be made according to the procedures outlined in Part 1, Section Use of the Service after the effective date of such changes will constitute your consent to the changes. 1.4 Internet Access Services. Company may use the Services to: Make transfers between Accounts you may have with us Obtain Account balances. Balances are updated as transactions are processed, but there may be some delay and balances may not include current transactions (such as checks cashed at a teller window on that Business Day). In addition, your account balance may show funds that have been credited to your account but are not yet available for withdrawal Review recent transactions on your Accounts Transfer money to make loan payments Transfer money to pay your Southwest Bank Line of Credit Set up an Automatic Transfer from one account to another Download account information in various formats for use with certain financial software programs or spreadsheets. (Note: we are not responsible for the accuracy of data or for its integration with financial software) Issue stop payment orders View check images View Account statements *Initiate online bill payments *Originate ACH entries *Utilize Positive Pay Services *Make Wire Transfer requests *Deposit by RDC *Use other Services as they may become available. These activities are limited to the extent noted herein and in the agreements governing your various accounts with us. *You must designate these Services on the DOS Form and execute any applicable Forms or Exhibits required by Bank for the Service. 16

20 1.5 Additional Services. Additional services may be included in an update to this Agreement or in other separate agreements to notify you of the existence of any new services available through Internet Service. Information about new services may be obtained from our Website. By using these services when they become available, you agree to be bound by the terms and conditions contained in this Agreement or separate agreements covering these services. 1.6 Restrictions; Limits. In most cases you may use Internet Service to gain access to deposit accounts in which you have an unrestricted right to withdraw funds. However, the Bank, as it may determine at any time and from time to time in its sole discretion, may deny Internet Service account access, restrict Internet Service account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account. 1.7 Vendor. You acknowledge and agree that the Internet Service is provided by an independent third party service provider ( Vendor ) as selected by Bank, and that both the Vendor and the Internet Service are subject to change from time to time without notice to you. You further acknowledge, agree, and stipulate that the Vendor is an independent contractor providing software and data transmission services and is not the agent of you or Bank. Neither the Bank nor the Vendor is responsible for the actions or omissions of the other. 1.8 Account Access. Transfers from your Account will be deducted on the date you instruct us to process them. We can process a Transfer no later than the time set forth on the Website for that particular type of transfer on a Transfer Day. If you request a Transfer after the cutoff time, the Transfer will be processed the following Transfer Day. If you schedule a Transfer for a future date, we will process the transaction after the close of business on that date, if that day is a Transfer Day. If the date you schedule a Transfer falls on a weekend or holiday, we will process your transaction the previous Transfer Day. We may refuse to act on your Transfer instructions if sufficient funds, including funds available under any overdraft protection plan, are not available in your Account on the date you want us to make the Transfer. We will not be liable under this Agreement for failure to provide access or for interruptions in access to our Internet Service due to a system failure or due to other unforeseen acts or circumstances. 1.9 Cancelling Transfers. You may cancel a pending Transfer. However, to do so, we must receive your instruction to cancel via the Internet Service prior to the cutoff time on the Business Day prior to the Transfer Day the transaction is scheduled to be processed. If we don t receive your instruction to cancel a transaction before that time, we may process the transaction Transfer(s) from Savings/Money Market Deposit Accounts. Federal regulations require us to limit, either by contract or in practice, the number of certain types of transfers from savings and money market deposit accounts. You are limited to six (6) preauthorized electronic fund transfers per monthly statement cycle. Each fund transfer through this Internet Service from your savings or money market deposit account is counted as one of the six (6) transfers permitted each monthly statement cycle. However, payments to your loan accounts with us are not counted toward this transfer limit for savings/money market deposit accounts Web linking Practices. Bank may provide access to information, products or services offered on other third party web sites. The Bank is not responsible for, nor does it control, the content, products, or serviced provided by linked sites. The Bank does not indorse or guarantee the products, information or recommendations provided by linked sites, and is not liable for any failure of products or services advertised on those sites. In addition, each third party site may provide less security than the Bank and have a privacy policy different than that of the Bank. Your access, use and reliance upon such content, products or services is at your own risk. SECTION TWO: SOUTHWEST BANK ONLINE BILL PAYMENTS 2.1 Using this Service. Our bill payment Service allows you to schedule online bill payments through us ( Bill Payment Service ) and is subject to any applicable terms and conditions on the Website. You can arrange, at your option, for payment of your current, future, and recurring bills from a checking account or money market account (within the limits set forth in the Deposit Account Agreement). There is no limit to the number of payments that may be authorized. You may pay any merchant or individual approved by Southwest Bank for payment through the Bill Payment Service. For Bill Payment Service, your Payee list may include utility companies, merchants, financial institutions, insurance companies, individuals, etc. within the United States whom you wish to pay through Bill Payment Service. Please include the full name of the Payee and a complete mailing address and telephone number for each Payee, along with your account number with the Payee, the amount of the payment, and whether the payment is recurring. The Bank reserves the right to decline to make payments to certain persons and entities. You agree that any payments outside of the United States are prohibited and you agree that you will not attempt to use the Service to make these types of payments. Any payment for Federal or State income or estate taxes, and payments that are court ordered or government payments are discouraged and if you schedule them, they are scheduled at your own risk. On recurring payments, it is the responsibility of the account owner or designated authorized users to update Payee account information such as address changes, account numbers, etc Payment Instructions. By furnishing us with the names of your payees/merchants and their addresses, you authorize us to follow your payment instructions. When we receive payment instructions (for current or future date), we will remit the funds to the payee on your behalf, from the funds in your selected account, on the day you have instructed them to be sent ( Payment Date ). However, we shall not 17