MASTER SERVICES AGREEMENT

Transcription

1 MASTER SERVICES AGREEMENT This Agreement is dated and is between ( Customer ) and MIDWEST BANKCENTRE ( Bank ). For purposes of this Agreement the term Service means any function or action that may be taken by the Customer, or by the Bank at the instruction or authorization of the Customer, relating to the transfer of funds into or out of an Account, or disclosure of information with respect to an Account, or otherwise involving management or maintenance of an Account or transactions relating to an Account. The term Account means any deposit account in which funds of the Customer are deposited at the Bank. The term Supplemental Agreement means any agreement between the Bank and the Customer relating to a particular Service. The term Banking Day means each day that the lobbies of the Bank are open for business ecept Saturdays. The term Available Funds means funds available for withdrawal, as defined in Federal Reserve Regulation CC and the Bank s applicable funds availability schedule and policies, on deposit with the Bank as of the time applicable in this Agreement. The term Communication Services means the Internet and any mobile or wireless or other communications device. Any terms defined herein shall have the same meaning in any Supplemental Agreement unless a different definition is provided in the Supplemental Agreement. Deposit made by a check that is not drawn on the Bank is deemed to be Collected Funds two Banking Days after the deposit of such check. The term ACH means automated clearing house. Online Banking 1. Services: Various Services may be available to Customer through the Communication Services if selected by the Customer. Services may include checking Customer s current Account information, stop payment on checks, wire transfers and automated clearinghouse transactions, transfer funds among Customer s Accounts, pay bills and other Services that the Bank may make available from time to time. Customer may be required to enter into other agreements in order to use any Services. Customer must provide Customer s own access to the Communication Services through a provider of Customer s choice. 2. Transfer of Funds: Customer may transfer funds from one Account to another Account or from an Account to make a payment on a loan from the Bank to the Customer, but only to the etent that there are unencumbered Available Funds in any Account from which the transfer is made. Customer may make draws on lines of credit and transfer the draw to an Account, but only to the etent that a draw is permitted under the terms of the line of credit loan documents. The number of transfers that Customer may make may be limited by law or regulation and the Bank may establish restrictions on transfers that may eceed those limits. Transfer 1 instructions must be received by 10:30 p.m. on a Banking Day for transfers to be made on that day. 3. Bill Payment: (a) Customer may pay bills from funds in Customer s checking Accounts to a creditor of the Customer by giving payment instructions on the Bank s online banking system. Payments will be made by checks mailed to the creditor or by automated clearing house electronic transfers depending on the requirement of the creditor. Customer will be required to designate the amount of the payment to be made, the date that the payment is to be delivered to the creditor, and such other information as the Bank may require. Customer may authorize individual payments or may authorize automatic payment of recurring bills. Payments will be administered by an independent third party and the Bank has no control over the processing or delivery processes. The Bank has no liability to the Customer for acts or omissions of the third party service provider. The Bank cannot guaranty that a payment will actually be received by the creditor by the delivery date specified by the Customer. If any payment is delivered after the designated delivery date, and if such delay is caused by some act or omission of the Bank, the liability of the Bank for each such occurrence shall be limited to the lesser of $50.00 or the late penalty or fee assessed by the creditor under an eisting agreement between Customer and the creditor. When the Customer designates the date of delivery of payment, the Customer will receive an online message stating the date that the payment will be processed or the earliest possible delivery date based on the date the Customer gives instructions to deliver the payment. If the designated delivery date is not available, customer must arrange for alternative methods of delivery of the payment, including alternative delivery processes that may be available through the online bill paying service. The amount of the payments, and any applicable fees, will be deducted from the Account that Customer designated to be used to pay bills on the processing date. It is the sole responsibility of the Customer to have sufficient funds in the designated Account by 2:00 p.m. on the processing date to pay all applicable bills. If there are not sufficient Available Funds to pay all of the designated bills the Bank may complete payments to the etent of Available Funds and decline to pay all other bills in accordance with the Bank s standard procedures. The present standard procedure of the Bank is to pay bills in the order of the dates that payments are scheduled to be processed. If sufficient Available Funds are not in the Account to pay a bill on the scheduled payment date the Bank will not pay the bill if funds become available at a later time and the Customer will be required to submit a new payment instruction. The Bank will not be required to notify the Customer if a bill will not be paid due to lack of sufficient funds. If Customer wants to cancel any bill payment, Customer must cancel the bill payment instruction before 2:00 p.m. on the processing day for such payment using the online bill payment site. Bills can be paid using the online banking service only if the payment equals or eceeds $1.00 and the address of the payee is in the United States or Puerto Rico. 4. Stop Payment Orders: The Customer may instruct the Bank not to pay a check. The Bank will not be required to act on such instructions until four hours

2 after the notice is received by the Bank, or until 11:00 a.m. on the net Banking Day if the four hours would end after the normal business hours of the Bank. Customer should call the Bank if Customer wishes Customer s instructions to be acted on more quickly. All applicable fees will apply. 5. VISA Business Debit Cards If the Customer elects this service the Bank will issue debit cards ( Cards ) that permit Customer to make transactions to be charged against the Account designated by the Customer for debit card transactions. Card Issuance, Available Services and Limitations: Bank will deliver to the Customer such number of Cards as the Customer may request. The Cards may be used as a debit card for purchasing goods or services from merchants, depositing checks or cash at Bank automatic teller machines ( ATM ), obtaining cash advances from participating ATMs, and obtaining cash advances from merchants ( Transactions ). A Personal Identification Number ( PIN ) will be issued to the Customer. The PIN will be required for debit and ATM Transactions. Customer is solely responsible for maintaining security of the Cards and PINs. Point of sale or merchant cash advance Transactions are conditioned upon a merchant accepting the Card or PIN. Bank will have no responsibility if a merchant refuses to accept a Card or PIN to pay for Transactions. Customer may not allow any Card or PIN to be used for any illegal purposes. The Bank may (but is not required to) decline to authorize any Transaction that Bank reasonably believes to be illegal. Notwithstanding the foregoing, the Customer will be liable to the Bank for any costs, claims or damages incurred by the Bank involving use of a Card in an illegal transaction. All deposits at an ATM are subject to later proof and verification. All credits are provisional and are subject to availability requirements. Balance information or receipts acknowledging Transactions is provisional only and not binding on the Bank. The acknowledgment form provided is not a binding receipt, and any balance information shown may not reflect all transactions on the Account. Use of Cards by Third Parties: Customer may permit employees, agents or other representatives of Customer to use Cards and PINs for Transactions. Customer shall have the sole right to deliver Cards and PINs to persons whom the Customer intends to use the Cards, and the Customer is solely responsible for maintaining the security of Cards and PINs. Customer acknowledges that by delivering Cards and PINs to employees, agents or representatives of the Customer that the Bank will not be able to control the use, transfer or loss of the Cards or PINs. Customer assumes full responsibility for the use of a Card or PIN by any person in possession of a Card or PIN. Customer is solely liable and responsible for all Transactions that are made by any person who Customer authorizes, permits or enables to have access to a Card or PIN (even if the person eceeds such person s authority), or by any other person who obtains Customer s PIN or a Card in any manner. Bank will have no obligation to monitor the use of any Cards or PINs by any persons or in any way to limit the size or number of Transactions that any holder of a Card or PIN may make ecept as provided herein or ecept as the Bank may agree in writing. Customer releases Bank from all liability to the Customer, and Customer will defend, hold harmless and indemnify Bank from and against, any and all claims of any nature arising out of the 2 use of a Card or PIN by any person and the Customer acknowledges that Bank would not issue Cards or PINs without such agreement from the Customer. Application of Funds; Overdrafts: Purchase and cash advance or withdrawal Transactions will be deducted from the Account. A refund will be credited to the Account. Bank may, at its sole discretion, draw against any overdraft protection plan or loan that applies to the Account to cover Transactions that eceed the balance of Available Funds in the Account. Bank may refuse to honor any Transaction if there are not sufficient Available Funds in the Account equal to the amount of the Transaction. Limitations on Frequency and Amount of ATM Withdrawals: Bank, at its sole discretion, may limit the amount of ATM cash withdrawals to $ per day per card and an aggregate of $1, per day for all Cards. The foregoing limits are solely for the benefit of Bank and Bank shall have no liability to the Customer for permitting ATM withdrawals that eceed such limits. There are no limitations on amount or frequency for other Transactions. Fees and Charges: Bank will not charge Customer for point of sale Transactions for the purchase of goods or services from a merchant. The Customer may be charged for ATM or other cash advance Transactions in accordance with the Bank s rules. Customer will be responsible for any fees applicable to the Account or Transactions from ATM s that impose a surcharge. Lost or Stolen Card or PIN: If Customer knows or believes that a Card or PIN is in the possession of an unauthorized person, or if a Card or the PIN is lost, stolen or otherwise is compromised, Customer must notify Bank by telephone and by written notice at the telephone numbers and address provided in this Master Services Agreement. Such notice shall designate the Card and/or PIN in question. Telephonic notice will not substitute for written notice. Bank will have no liability for any Transactions made before 5:00 p.m. on the third Banking Day after Bank receives written notice. At the option of the Bank, the Bank may either deactivate all Cards and PINS, or only deactivate the specific Card or PIN that has been identified by the Customer and all other Cards and PINS will remain in full force and effect. Customer agrees to indemnify Bank against any claims or losses by the Bank arising from use of a lost, stolen or compromised Card or PIN that has not been disclosed to Bank as required herein. Customer is solely liable for any losses resulting from a delay in notifying Bank of any loss, misplacement or misappropriation of the PIN or any Card. It is the sole responsibility of the Customer to retrieve a Card from any holder of the Card if the Customer wishes to terminate such person s right to use the Card. Foreign Currency Transactions: Purchases and cash withdrawals made in foreign countries and in foreign currencies will be charged to the Account in U.S. dollars and will be assessed an international transaction fee. The conversion rates and transaction fees will be made in accordance with VISA operating regulations. The conversion date may not be the same as the Transaction date. Termination of Card or PIN: Bank may terminate Customer s right to use any Card or PIN at any time and without prior notice. At Bank s request the Customer will return all Cards to Bank. Termination of a

3 Card or PIN will not affect the obligations and liabilities of the Customer to the Bank hereunder. Terms Applicable to All Services The following terms apply to all Services. 6. Interruption in Service; Limit of the Bank s Liability: Any information Customer receives from the Bank can only be provided on a best-efforts basis for Customer s convenience and is not guaranteed. The Bank is not liable for any deficiencies in the accuracy, completeness, availability or timeliness of such information or for any investment or other decision made by Customer using this information. The Bank will have no liability to Customer if Customer is not able to complete any transaction if: (1) Customer does not have enough money in Customer s Accounts to make the transfer; (2) the Bank s communications systems or computer system are not working properly or is undergoing repair or maintenance; (3) the failure is the result of any act or omission of any Communication Services provider or any software or service provided by any third party or any other party to the transaction; (4) service is interrupted or blocked as a result of interruption of Communications Services or pursuant to security procedures; or (5) circumstances beyond the Bank s control (for eample, fire, flood, loss of power, or interruption of Communication Systems) prevent the completion of the transaction. The Bank may on a regular basis perform maintenance on the Bank s equipment or systems which may result in interruption of the Services and the Bank will not have any liability to Customer as a result of any such interruptions. The Bank may contract with third parties to provide certain Services to Customer. The Bank will have no liability of any kind to Customer with respect to any acts or omissions of such parties, and Customer s sole remedy shall be against such third party. If Customer eperiences any inability to access the Communication Services, Customer should call the Bank during normal business hours. 7. Communications: Unless otherwise specified in any Supplemental Agreement, all notices that the Customer is required or permitted to give to the Bank regarding the Services shall be sent to: Midwest BankCentre, 2191 Lemay Ferry Rd., St Louis, MO 63125, ATTN: Client Services Centre or by to support@midwestbankcentre.com. When notices or inquiries are permitted to be made by telephone, the Customer may call (314) or (800) All notices and disclosures to the Customer may be sent to the last known mail or address of the Customer on the records of the Bank or by electronic notice to the etent permitted by applicable laws or regulations. It is the responsibility of the Customer to give the Bank written notice of the change of any of Customer s addresses. 8. Applicable Laws and Regulations; Amendments of Agreement: This Agreement shall be subject to any eisting or future laws and government regulation, and the rules and fee schedules of the Bank. If there is any conflict between this Agreement and applicable law or regulation, this Agreement will be considered changed to the etent necessary to comply with the law or regulation unless the law or regulation may be changed by agreement in which event this Agreement will prevail. If there is any inconsistency between the rules of the Bank, 3 this Agreement or a Supplemental Agreement, this Agreement shall prevail. Unless otherwise required by law, the Bank may adopt and amend regulations, rules and fees for Services by posting such regulations, rules, amendments or fees in the lobby of the Bank for a period of 30 days or by sending notice of such regulations, rules, amendments or fees to the Customer no less than 30 days before the effective date of such change. The Bank may amend this Agreement and any Supplemental Agreement or terms of any Service by giving at least 30 days prior written notice to Customer, and the use of the applicable Service by the Customer after such 30 day period will be deemed to be acceptance of such amendment by the Customer. 9. Fees: Customer will pay all fees for any Service as disclosed in any fee schedule or Supplemental Agreement. The Bank may deduct fees for any Services from any Account of the Customer at the Bank. Customer is responsible for all access and other charges incurred in using any Communications Services. 10. Laws, Disputes: This Agreement and any Supplemental Agreements are governed by the internal laws of the State of Missouri without reference to conflicts of law rules and by the Federal Arbitration Act. Any disputes relating to any such agreements or the Services shall be resolved by arbitration in St. Louis County, Missouri, in accordance with the rules of commercial arbitration for the American Arbitration Association (the AAA ). The AAA shall appoint the arbitrator. No arbitrator may award indirect, special, punitive or consequential damages of any kind or make any award not authorized herein. Claims of more than one person or entity (other than joint Customers under this Agreement) may not be joined in a single arbitration proceeding. Arbitration awards may be enforced by any state or federal court having geographic jurisdiction over St. Louis County, Missouri. The nonprevailing party will pay the costs of arbitration, and the costs and attorney fees of the prevailing party including costs of enforcing any arbitration award. 11. Termination of Services or Agreement: Unless any other time period is specified herein or in any Supplemental Agreement, either the Bank or the Customer may terminate any Supplemental Agreement or any Service by giving at least 15 days prior written notice to the other. Notwithstanding the foregoing, the Bank may terminate a Service without prior notice if the Customer is in default under this Agreement or any Supplemental Agreement, or if the Bank has reason to believe that any Account of the Customer is being misused or the security of any Account has been compromised, or if the Service is being used for illegal purposes, or the use of the Service threatens damage or financial loss to the Bank, or in the event of the Customer s insolvency, receivership, or voluntary or involuntary bankruptcy, or the institution of proceedings therefore or any assignment for the benefit of the Customer s creditors. 12. Limits on Bank Liability: Ecept as may otherwise be specifically provided in this Agreement or any Supplemental Agreement: (a) neither the Bank, nor any of the Bank s affiliates, officers, directors, employees or agents ( Bank Representatives ), will be responsible for any loss of Customer s funds or property ecept as a result of an intentional act or gross negligence of the Bank or a Bank Representative; (b) Customer agrees that the amount of actual damages relating to a breach of the

4 Bank s obligations with respect to a Service is difficult to ascertain and that unless otherwise specifically provided in a Supplemental Agreement, any liability of the Bank shall be limited to liquidated damages equal to the lesser of $100 or the amount of fees for the applicable Service that were paid by the Customer for the si month period immediately preceding the act or omission for which the Bank or Bank Representative is liable; (c) neither the Bank nor any Bank Representative shall be liable for any indirect, special, incidental, punitive or consequential damages, and (d) Customer will be solely responsible for any losses or damages caused by any inaccurate or incomplete information provided by the Customer. 13. Third Party Products and Services: Customer is solely responsible for obtaining and maintaining all equipment, devices, applications or services necessary to use the Communications Services. The Bank has no liability of any kind or nature arising from any defect in any such item. Bank is not responsible for any computer virus, cookies, spyware or similar problems which may affect or result from Customer s use of the Services. Customer agrees to all terms of use and license agreements applicable to any equipment, devices, applications or services used by Customer in using Communications Services. 14. Survival of Terms; Successors; Miscellaneous: If any part of this Agreement or any Supplemental Agreement is found to be illegal or unenforceable, then the remainder of such agreement shall be interpreted to give effect to the general intention of such agreement. All rights and remedies of the Bank, and any limitations on the liability of the Bank, contained in this Agreement or any Supplemental Agreement survive the termination of such agreement. Customer cannot assign any of its rights under this Agreement or any Supplemental Agreement. This Agreement and any Supplemental Agreement will be for the benefit of and shall be binding on the permitted successors and assigns of the Customer. The Bank reserves the right to waive the enforcement of any of the terms of this Agreement with respect to any transaction or series of transactions. Any such waiver will not affect the Bank s right to enforce any of its rights with respect to other customers or to enforce any of its rights with respect to later transactions with Customer and is not sufficient to modify the terms and conditions of this Agreement. Paragraph headers in this Agreement are not part of the Agreement. 15. Indemnification: The Customer will indemnify the Bank against all costs and epenses incurred by the Bank (including attorney fees) arising out of any acts or omissions caused by Customer or any representative of Customer. 16. Security: Customer may be assigned security codes, procedures, devices or passwords to be used when Customer uses Services. The Bank may also make available to the Customer software or other security devices that are provided by third parties. Any such codes, procedures, passwords, software or other devices are called Security Devices. THE BANK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO MERCHANTABILITY, OR THAT THE SECURITY DEVICES ARE FIT FOR A PARTICULAR PURPOSE OR ARE SUFFICIENT TO PROTECT THE CUSTOMER AGAINST UNAUTHORIZED ACCESS TO THE CUSTOMER S ACCOUNTS OR COMPUTER SYSTEMS. THE CUSTOMER ACKNOWLEDGES THAT THE SECURITY DEVICES MAY NOT BE THE 4 MOST SOPHISTICATED OR ADVANCED DEVICES AVAILABLE AND THAT THE BANK HAS NO OBLIGATION EXCEPT TO OFFER REASONABLE SECURITY DEVICES TO THE CUSTOMER. THE CUSTOMER SHOULD OBTAIN INDEPENDENT ADVICE ON THE SECURITY OF CUSTOMER S COMPUTER SYSTEMS AND WHETHER THE SECURITY DEVICES PROVIDE SUFFICIENT PROTECTION TO THE CUSTOMER AND ITS ACCOUNTS AND COMPUTER SYSTEMS. Customer agrees to look solely to the third party provider or manufacturer of any Security Device with respect to any defect in a Security Device. The Customer must use the Security Devices that are designated or required for a Service. Customer is solely responsible for all transactions that are made using Customer s computer or other access devices, or which are made using any of Customer s Security Devices, or which are made without the Bank s actual knowledge that such transactions are unauthorized. Without limiting anything else contained herein, Customer is solely liable for any losses, damages or unauthorized access to Customer s Accounts if Customer accesses Services by public WiFi or other public access services. Customer is solely responsible for installing in Customer s computers and Communication Services systems such procedures, codes, firewalls and other security devices as are necessary to prevent the unauthorized use of Customer s computers, access devices, Security Devices or Accounts. The Bank reserves the right to block access to the Services if the Bank has actual knowledge that any Security Device has been compromised or misappropriated, provided that the Bank has no obligation of any kind to investigate or discover any such compromise or misappropriation and the Bank shall have no liability to the Customer for the Bank s failure to discover any such compromise or misappropriation. The Customer must immediately notify the Bank in writing delivered by certified mail or by a nationally recognized courier service or by if Customer has authorized any person to use any of Customer s Security Devices and if Customer wishes to terminate such person s authority to use the Security Device, or if Customer knows or believes that any of Customer s Security Devices have been lost, stolen or otherwise compromised, or if Customer has reason to believe that any person is accessing Customer s Accounts without authority. The Bank will have no liability for any unauthorized transactions that occur within two Banking Days after actual receipt of such written notice by the Bank. Customer hereby releases the Bank from all liability for, and will indemnify the Bank and the Bank Representatives from, any and all claims of any nature arising out of any access to any of Customer s Accounts using the Services unless the Bank has actual knowledge that such transactions are unauthorized. If the Bank makes available to the Customer a Security Device and the Customer refuses to use the Security Device, then the Bank shall have no liability of any kind for any unauthorized access to Customer s Accounts, or misappropriation of any of Customer s funds, if the use of the offered Security Device may have prevented such unauthorized access or misappropriation. 17. Positive Pay: The Bank currently offers Positive Pay service to business checking account customers. Under the Positive Pay service, the Customer will notify the Bank in advance of checks that Customer writes on Customer s account, including information

5 about the contents of the check. When the check is presented to the bank for payment, the Bank will compare the contents of the check with the information Customer provided to the Bank. If the check does not match the information Customer gave Bank then the Bank will contact Customer for instructions on how to handle the check. Customer agrees that if Customer does not use the Positive Pay system then Customer may not make any claims against the Bank, and the Bank will have no liability, for any losses Customer may eperience from forged, altered or fraudulent checks drawn on the Customer s account. 18. Service Administrator. Customer will appoint a representative (the Administrator ) who will be responsible for the following functions with respect to all Services: establish access rights to all Services by representatives of the Customer; receive communications generated by the Communications Services or Service systems; approve, reject or modify ACH batch transactions that require approval; add, modify, and delete ACH batch template definitions; submit ACH batches to the Bank; define which participants are included in ACH batches; authorize other persons to use the Services on behalf of the Customer and agree to terms, conditions and limits on the use of Services; assign user passwords or other Security Devices to other persons to permit them to use the Services; and in all other manners represent the Customer with respect to the Services. The Customer may change the Administrator or appoint additional Administrators by registering such change on the Customer s Services system. The Bank will not be under a duty to inquire as to the authority of the Administrator or the propriety of any instructions given to the Bank by the Administrator or any person designated by the Administrator or any other person authorized to act on behalf of the Customer. 19. Effective Date of Deposits. The deposit date for calculating Available Funds and Collected funds is: 6:00 p.m. for funds deposited with a teller at a Bank office; the Banking Day that a deposit is delivered to the bank by United States mail; no later than the net Banking Day after a deposit of cash or checks at a night depository or an automated teller machine; 10:30 p.m. for electronic interaccount transfers; 2:00 p.m. for wire transfers from a United States source; 12:00 noon for wire transfers from a source outside the United States; for funds deposited through ACH such times are set out in the ACH agreement; and the net Banking Day after receipt for all other deposits. If the applicable date of deposit or delivery is not a Banking Day, then the date of deposit or delivery will be deemed to be the net Banking Day. (Rev 6/21/13) THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION WHICH IS BINDING ON THE BANK AND THE CUSTOMER. 5

6 Visa Business Debit Card Application, Ehibit A The business entity listed below ( Customer ) hereby applies for a Midwest BankCentre Visa Debit Card(s) and authorizes Midwest BankCentre to deliver such Cards as the Customer may request on the Visa Business Debit Card Application-Ehibit A. BUSINESS ACCOUNT INFORMATION Business Legal Business Name to print on card: Legal Status: ( ) Sole Proprietor ( ) Corporation ( ) Partnership ( ) LLC Other: Business Federal Ta ID Number: CIF #: Physical Address of Business (No PO Boes): Business Phone Number: Cardholder One: X *If limit request is only for a temporary basis, complete Business Debit Card Maintenance Form and include date of limit epiration. Cardholder Two: *If limit request is only for a temporary basis, complete Business Debit Card Maintenance Form and include date of limit epiration. 6

7 Cardholder Three: *If limit request is only for a temporary basis, complete Business Debit Card Maintenance Form and include date of limit epiration. Cardholder Four: *If limit request is only for a temporary basis, complete Business Debit Card Maintenance Form and include date of limit epiration. AUTHORIZATION I ( Customer ) certify that all information is true and correct and requests Midwest BankCentre to issue Cards, as stated on the Visa Business Debit Card Application, Ehibit A. I authorize the Bank to make any investigation of my credit, either directly or through any agency. I understand that the Bank will retain this application and any other credit information, even if Cards are not granted. I agree not to use the Cards in any illegal activity. Bank, in its sole discretion, reserves the right to issue, revoke, and/or limit the use of Cards at any time. Master Services Agreement: All of the terms, conditions, representations, warranties, limitations and waivers made by the parties hereto in the Master Services Agreement between the parties hereto are incorporated into this Agreement and are made a part of this Agreement as if fully set out herein. Any defined terms used herein will have the same meaning as defined in the Master Services Agreement unless otherwise defined herein. Signature of Authorized Signer: Printed Internal Use Only: Submitted By: Location: Deposit Operations: 7