The following revisions have been made to the Terms and Conditions effective:
April 04, 2024
Treasury Management Services General Provisions
The Treasury Management Services General Provisions were updated with several changes. This includes changes to clarify the authority of an Administrator, which includes the ability to designate other individuals as Administrators with the same authority, and recommend that Customers designate at least two Administrators so that changes made by an Administrator can be reviewed and approved by a second Administrator. In addition, the conflicts provision was updated to expand the actions the Bank may take when it receives conflicting instructions from a Customer related to the Services or Accounts, including suspending a Service or freezing an Account. The time period for Timely Notice of Errors involving Checks was reduced to 14 days due to increasing Check fraud in recent years. A provision was added restricting Customers’ use of the Bank’s name, logo and branding without prior written consent. Finally, in the provision regarding use of the Services by a Customer’s Affiliates, terms were added to clarify that the Bank’s set-off rights apply with respect to accounts owned by the Customer and by its Affiliates for amounts owed by any of them under the Treasury Management Terms and Conditions Agreement.
Positive Pay, Payee Positive Pay and Reverse Positive Pay Service Terms
The Positive Pay, Payee Positive Pay and Reverse Positive Pay Service Terms were updated to clarify certain operational aspects of the Service. Terms were added to explain the effect of placing a void request on a Check listed in the Check Issue File. In addition, a new provision was added regarding Customers with Positive Pay that later elect to implement Payee Positive Pay, establishing that this change is not retroactive and only applies with respect to Checks issued and listed in the Check Issue File after Payee Positive Pay has been activated. Finally, terms were added to flag the possibility that a Check could be presented over-the-counter for cash or deposit before the Bank has received and had an opportunity to process the Customer’s most recent Check Issue File and remind Customers to list each Check issued on the Check Issue File before putting the Check into circulation.
Treasury Key Service Terms
The Treasury Key Service Terms were updated to clarify that account numbers could not only be provided by Capital One but also by the clients.
June 12, 2023
Vault Services
The Vault Services Service Terms were updated to remove all references to “virtual vault” which is a term we no longer use.
May 03, 2023
Escrow Express
The Escrow Express Service Terms were updated to clarify that a Customer ensures compliance with applicable state laws. Additionally, grammatical errors were corrected throughout and more descriptive product option names were updated in Section 2.
January 9, 2023
Escrow Express
The Escrow Express Service Terms were updated to conform the defined terms to the General Provisions and to include more comprehensive terms regarding the options available to Customers using this Service. Terms were added to clarify the flow of funds and the titling and identification of the sub-accounts established by Customer using Escrow Express. The updated Service Terms also clarify Customer’s obligations regarding tax reporting for the sub-accounts and establish that Bank is solely the depository and is not acting as a trustee or other fiduciary regarding the sub-accounts.
November 2, 2022
Image Services
The ATM Deposit-Only Card Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain aspects of the Service; however, no substantive changes were made.
Positive Pay, Payee Positive Pay and Reverse Positive Pay Services
The Positive Pay, Payee Positive Pay and Reverse Positive Pay Service Terms were updated to add terms regarding checks with encoding errors. These terms explain that encoding errors made by the bank of first deposit can cause delays or errors in processing a check through the Service, and the Bank is not responsible for encoding errors made by the bank of first deposit.
August 31, 2022
ACH Debit Protection
The ACH Debit Protection Service Terms were updated to clarify that when a Customer selects the “Block All” option, all ACH debit and credit entries to the Account will be blocked, including those that Customer has authorized or initiated.
ACH Origination
The ACH Origination Service Terms were updated to clarify and streamline certain provisions. The only substantive change made to the Service Terms was clarifying that Customer can check the status of any ACH entry using the information reporting services offered by Bank, and Bank is not obligated to separately notify Customer in the event that Bank rejects an ACH entry for processing.
ACH Third Party Sender Addendum
The ACH Third Party Sender Addendum was updated to add terms regarding Nested Third-Party Senders based on upcoming changes to the Nacha Operating Rules and Guidelines.
Controlled Disbursement
The Controlled Disbursement Service Terms were updated with minor clerical edits; no significant or substantive changes were made.
Electronic Stop Payments
The Electronic Stop Payments Service Terms have been eliminated and the relevant terms regarding stop payment orders submitted through the Channels are now contained in the General Provisions.
General Provisions
The General Provisions were updated to add terms regarding stop payment orders submitted through the Channels.
Integrated Payables
The Integrated Payables Service Terms were updated to conform the defined terms to the General Provisions and to streamline and clarify certain provisions regarding the Service. More detailed terms were added regarding the Check Print Service, which is one of the payment types available with Integrated Payables. Certain general terms regarding the transmission, rejection and amendment of payment files were removed since each payment type is subject to and governed by the separate Service Terms for that payment type (e.g., ACH Entry or Wire Transfer).
Positive Pay, Payee Positive Pay and Reverse Positive Pay
The Positive Pay, Payee Positive Pay and Reverse Positive Pay Service Terms were updated with minor clerical edits; no significant or substantive changes were made.
Safekeeping Service
New Service Terms have been added for the Bank’s Safekeeping Service. This Service was previously governed by a separate custody agreement, which has been replaced with the new Safekeeping Service Terms. Like the Bank’s other Services, the Safekeeping Service is also governed by the General Provisions of the Treasury Management Terms and Conditions Agreement. The new Safekeeping Service Terms include a description of the Service, how Customer can submit instructions to Bank, and Bank’s duties with respect to the Securities placed with Bank as custodian. Any Securities currently held by Bank for a Customer under a prior safekeeping or custody agreement will be subject to the new Safekeeping Service Terms and deemed to have been deposited thereunder.
Wire Transfer
The Wire Transfer Service Terms were updated to clarify and streamline certain provisions. The only substantive change made to the Service Terms was clarifying that Customer can check the status of any wire transfer request using the information reporting services offered by Bank, and Bank is not obligated to separately notify Customer in the event that Bank rejects a payment order for processing or if a payment order is returned to Bank after its execution.
June 13, 2022
ATM Deposit-Only Card
The ATM Deposit-Only Card Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain aspects of the Service; however, no substantive changes were made.
Image Cash Letter
The Image Cash Letter Service Terms were updated to conform the defined terms to the General Provisions and to clarify some of the operational aspects of the Service. As part of the security and controls for the Service, terms were added requiring Customers to review any Files they submit and report errors to the Bank immediately and recommending that Customers establish authorities and a system for separation of duties among Customer’s Users for the Service. Terms were also added limiting the Bank’s liability with respect to on-site inspections of any location where the Customer or its Vendor uses the Service, as part of an audit to evaluate their compliance with the Service Terms.
General Provisions
The General Provisions were updated to make clarifying changes to certain sections and to establish new terms for certain functions and features. New terms were added regarding the possibility that the Channels may be temporarily unavailable at certain times, such as during periods of high volume or maintenance. A new section was added regarding the use of Mobile Apps, including the Customer’s acknowledgement of the associated risks such as increased exposure to potential unauthorized access due to a mobile device being lost or compromised. Another new section was added regarding the use of Single Sign-On access to the Channels following authentication by a Third-Party Provider, which constitutes the Customer’s waiver of the Security Procedures for accessing the Channels and authorization for the Bank to accept and act upon Instructions received following Single Sign-On. The Fee terms were updated to clarify that the Bank will notify the Customer about Fee changes only if required by Applicable Law. The Error reporting terms were updated to clarify that the Customer must report any Error involving Checks within 30 days to satisfy the Timely Notice requirement. Finally, the Vendor terms were updated to clarify that the Bank’s audit rights also apply with respect to the Customer’s Vendors, including any locations where the Customer or its Vendor are using the Services.
Lockbox Service
The Lockbox Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain operational aspects of the Service. Terms were added describing how the Bank handles Checks, cash, and exception items received in the lockbox, including clarifying that cash payments may be returned to the Customer without processing or may be converted to a Check and then either deposited or returned to the Customer, as indicated in the Operational Instructions for the Service. In addition, terms were added describing the timing of mail collection and availability of funds from payments deposited through the Service, along with the Customer’s ability to designate “Acceptable Payees” on whose behalf the Customer has authority to accept payments received through the lockbox.
OneBillConnect (previously named “Remittance Processing”)
The OneBillConnect Service Terms were updated to conform the defined terms to the General Provisions and to add certain operational and legal obligations of the Customer relating to the Service. Terms were added authorizing the Bank to open a Settlement Account in the Customer’s name for the settlement of payments to and from the Customer through the Service and requiring the Customer to maintain a sufficient balance in such Account to cover its settlement obligations. Terms were added outlining the Customer’s compliance obligations with respect to the RPPS Rules and Anti-Money Laundering Laws (each as defined in the Service Terms) and the Customer’s responsibility for any fees and other amounts due to Mastercard in connection with the Service. Terms were added requiring the Customer to retain records of its use of the Service and be able to readily provide transaction history records upon the Bank’s request. A new section was added limiting the Bank’s liability and requiring the Customer to indemnify the Bank with respect to the Customer’s use of the Service and functions performed by or claims against Mastercard. Finally, terms were added to permit the Bank to terminate or suspend the Service upon the occurrence of certain events.
OneBillPay (previously named “Electronic Bill Presentment and Payment”)
The OneBillPay Service Terms were rewritten in their entirety to clarify operational aspects of the Service and incorporate the terms from the separate Platform Agreement into the Service Terms so there will be one primary controlling document for this Service. The rewritten Service Terms outline the process and requirements for setting up the Customer’s OneBillPay platform, the types of payment files that can be submitted and processed through the Service, the designation of a Project Manager and such party’s role in managing the Service, and the requirements related to Convenience Fees that the Customer may charge to its Clients for payments they submit through the OneBillPay platform. In addition, the rewritten terms include certain representations and warranties from the Customer regarding its use of the Service and a requirement for the Customer to indemnify the Bank for Losses incurred by the Bank resulting from the Customer’s violation of the Operating Rules, breach of its representations and warranties, and third-party claims of intellectual property infringement regarding the Customer Content (as defined in the Service Terms).
Remote Deposit
The Remote Deposit Capture Service Terms were updated to conform the defined terms to the General Provisions and to clarify some of the operational aspects of the Service, as well as streamlining terms that are addressed in the General Provisions. The requirement for Customers to restrictedly endorse Checks prior to imaging has been expanded to apply to all Checks submitted through the Service, not just those submitted using a mobile device. As part of the security and controls for the Service, terms were added requiring Customers to review any Files they submit and report errors to the Bank immediately and recommending that Customers establish authorities and a system for separation of duties among Customer’s Users for the Service. Terms were also added limiting the Bank’s liability with respect to on-site inspections of any location where the Customer or its Vendor uses the Service, as part of an audit to evaluate their compliance with the Service Terms. The terms regarding the Customer’s use of a third-party agent in connection with the Service were deleted in their entirety since the Customer’s use of Vendors is addressed in the General Provisions. The Software sublicense terms were also deleted from the Service Terms; the Customer’s use of the Channels and Software is addressed in the General Provisions.
Return Service
The Return Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain options and features of the Service; however, no substantive changes were made.
Vault Service
The Vault Service Terms were updated to conform the defined terms to the General Provisions and to update the terms for certain operational aspects of the Service. Terms were added requiring the Customer to notify the Bank of any discrepancies or other problems with a Cash Order, or missing Cash Orders, within one Business Day. For Customers who also deposit Checks using the Service, terms were adding requiring Checks to be segregated from any cash deposits in a separate bag with a separate deposit ticket. The Service Terms were also updated to clarify that the Bank may return to the Customer without processing, any Ineligible Items such as foreign checks or non-negotiable items received in a Deposit. A new paragraph was added to establish that all responsibility and risk of loss passes from the Bank to the Customer or its Carrier once the Carrier has possession of a Cash Order or Deposit being transmitted using the Service. Finally, the terms were updated for the Sponsored Option, which is where the Bank contracts with a Carrier directly to facilitate the Customer’s Deposit deliveries and/or Cash Order pickups rather than the Customer entering into a contract with a Carrier to perform these functions. The Customer is required to indemnify the Bank for Losses incurred as a result of using the Sponsored Option, and the Bank’s liability to the Customer is limited to the same extent as the Carrier’s liability to the Bank is limited under their contract.
March 21, 2022
Zero Balance Accounts
The Zero Balance Account Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain options or features of the Service. A new section was added to establish the terms for multi-entity ZBA Accounts for affiliate relationships, for which all authority to establish and remove ZBA Accounts is held by the Master Customer acting on behalf of its Affiliates. In addition, terms were added enabling the Bank to suspend the Service if an Account does not have sufficient funds or is subject to a hold or freeze, and obligating the Customer to indemnify the Bank for overdrafts or other liabilities incurred by the Bank as a result of transfers made between Accounts pursuant to the Service. Finally, terms were added disclaiming the Bank’s responsibility for the application or use of any funds transferred using the Service.
Sweep Service
The Sweep Service Terms were rewritten in their entirety to provide more comprehensive, robust terms for the Service and conform terminology to the updated General Provisions. The updated Sweep Service Terms include more detailed descriptions of each of the three Service options: Repo Sweep, Loan Sweep and Loan & Investment Sweep Bundle. In addition, new liability terms regarding delays or failures involving sweeps were added to the Service Terms.
Account Transfer
The Account Transfer Service Terms were rewritten in their entirety to provide more comprehensive, robust terms for the Service and conform terminology to the updated General Provisions.
Treasury Key
The Treasury Key Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain options or features of the Service; however, no substantive changes were made to the terms of the Service.
Express Orders & Express Deposit
The Service Terms for Express Orders and Express Deposits were consolidated since these Services are related. Customers may still choose to use one or both of these Services depending on their cash and currency needs. The daily, weekly and aggregate liability limits for the Services were updated and the procedures for resolving loss events in which packages are damaged or destroyed in transit were clarified and made consistent among these two Services.
February 15, 2022
File Delivery and Information Reporting
The File Delivery and Information Reporting Service Terms (formerly, Information Reporting) were rewritten in their entirety to provide more comprehensive, robust terms for the Service, expand the Customer’s rights and obligations when using the Service, and conform terminology to the updated General Provisions. New sections were added to the Service Terms to describe certain aspects of the Service including: (i) File Delivery for transmittal Information to Customer’s Vendors; (ii) Vendor Access to Information allowing Vendors to contact the Bank directly to access Customer’s Information and (iii) Updating of Information to establish how the Bank periodically updates the Information available through the Service and how the Information is presented.
December 3, 2021
Account Reconciliation
The Account Reconciliation Service Terms were updated and clarified, but no substantive changes to the terms of the Service were made.
ACH Debit Protection
The ACH Debit Protection Service Terms were updated to conform the defined terms to the General Provisions and to clarify certain options or features of the Service. The description of the “Block All” option was updated to clarify that all ACH Debit Entries from an Account will be blocked when this option is selected, including those ACH Debits originated or authorized by Customer.
ACH Origination
The ACH Origination Service Terms were updated to conform the defined terms and eliminate duplicative provisions that are addressed in the General Provisions. The only substantive change made to the Service Terms was removing the provision regarding Customer’s reporting of Control Totals to the Bank in connection with the use of File Delivery, since such reporting is no longer being required.
ACH Third Party Sender Addendum
The ACH Third Party Sender Addendum was updated to conform the defined terms and eliminate duplicative provisions that are addressed in the General Provisions.
Controlled Disbursement
The Controlled Disbursement Service Terms were updated to clarify certain aspects of the Service, including that: (i) Bank relies on check clearing information received from the applicable clearing entity in providing the Service and Bank does not control the timeliness or accuracy of this information; (ii) Checks presented over-the-counter may not appear in the debit total until the following Business Day; and (iii) Bank may require Customer to maintain a specified minimum balance in the Funding Account.
Information Reporting
The Information Reporting Service Terms were updated to add terms regarding File Delivery and options for Customer to allow their third-party vendors to access their information through the Service.
Positive Pay, Payee Positive Pay and Reverse Positive Pay
The Positive Pay, Payee Positive Pay and Reverse Positive Pay Service Terms were updated to clarify that notice of availability of the Exception Report will be delivered as indicated in the Operational Instructions, rather than exclusively via e-mail. In addition, certain liability limits were deleted from the Service Terms since they are now addressed in the General Provisions.
Wire Transfer
The Wire Transfer Service Terms were rewritten in their entirety to provide more comprehensive, robust terms for the Service and conform terminology to the updated General Provisions. In addition, certain general legal terms were deleted from the Service Terms since they are addressed in the General Provisions.
July 10, 2020
General Provisions
The General Provisions were re-written in their entirety.
Defined Terms
Defined Terms section was removed because the terms were incorporated into the General Provisions.
June 9, 2020
Express Orders
Added terms and conditions for the new Express Orders service.
March 5, 2020
Automated Clearing House
This section was re-titled “Automated Clearing House Origination Service Terms” and significantly modified. The modifications are set forth in this document comparison.
Automated Clearing House Third-Party Senders
This section was added because the third-party sender terms were removed from the Automated Clearing House section
February 18, 2020
General Provisions
The "Notices and Communications" subsection was updated to include the following:
Except as information and instructions are otherwise specifically provided in any Service Terms or required to be provided in the Operational Instructions, any notice given to Bank concerning or under the terms of this Agreement must be in writing and must be provided by either hand delivery, nationally recognized overnight delivery service (such as Federal Express), or by certified or registered United States mail, return receipt requested, postage prepaid. Any such notice shall be deemed effective upon receipt and must be delivered to the following address (unless otherwise amended by Bank):
Treasury Management Services
Capital One, National Association
1307 Walt Whitman Road
Melville, NY 11747
Any written notice to be given to Customer under or concerning the terms of this Agreement may be provided by either hand delivery, nationally recognized overnight delivery service or certified or registered United States mail to Customer’s address in Bank’s records, or via email at the email address provided by Customer, posted to the Bank’s website or otherwise electronically transmitted to you in accordance with this Agreement, each of which shall be deemed to be “in writing.” Any such notice shall be deemed effective upon receipt or, if given via email, online posting or other electronic transmission such notice shall be effective upon such posting or transmission. Notwithstanding the forgoing, any addition, deletion or change to any Operational Instructions or Services requested by the Customer must be submitted in a form acceptable to the Bank, and not such requested addition, deletion or changes will become operative or effective until the Bank confirms to Customer that such addition, deletion or change has been implemented, which the Bank agrees to do within a reasonable period of time Customer authorizes Bank to record electronically all telephonic instructions received by Bank from Customer and conversations between Customer and Bank without further notification, and to retain such recordings for such period as Bank may see fit. The decision to record any telephone instructions and conversations shall be solely within Bank's discretion and Bank shall have no liability for failing to do so.
August 20, 2019
The Positive Pay Services section was amended to add the following sentence - "For Payee Positive Pay, checks that include the terms "Attention" or "Care of" (or any abbreviations thereof) in the payee field will not be considered Exception Checks."
June 23, 2019
Automated Clearing House
A new subsection entitled "BOC Entries" was added, as follows:
BOC (BACK OFFICE CONVERSION) ENTRIES
Customers initiating BOC (Back Office Conversion) entries must comply with Section 2.5.2 of the Rules, including but not limited to, the requirements of Section 2.5.2.5, which indicate that such Originators must:
establish and implement commercially reasonable procedures to verify the identity of the Receiver;
establish and maintain a working telephone number that is answered during normal business hours for Receiver inquiries and ensure that the telephone number is included on the notice provided to the Receiver prior to the conversion of the check;
ensure that the BOC Entry includes the amount, the routing number, the account number, and the check serial number to accurately represent the information is from an eligible source;
ensure that the eligible source document will not be presented or returned as the original source document (check);
retain a reproducible and legible copy of the front of the check for two years from the settlement date, and
establish and implement commercially reasonable methods to securely store (i) the eligible source document until it is securely destroyed, and (ii) all banking information relating to the BOC Entry
The subsection entitled "Third Party Senders" was modified to add paragraphs (i), (j) and (k), as follows:
(i) Upon Bank’s request, Third Party Sender authorizes Bank to enter Third Party Sender’s business premises for the purpose of ensuring Third Party’s Sender’s compliance with this Agreement, and Third Party Sender specifically authorizes Bank to perform an audit for such purpose, including but not limited to, Third Party Sender’s operational controls, risk management practices, information technology infrastructure.
(j) Pursuant to Section 2.2.2.1 of the Rules, Third Party Sender shall enter into written agreements with its Originators (each, an “Origination Agreement”), which must include, among other things, the following:
The Originator must authorize the Third Party Sender to originate Entries on behalf of the Originator to receivers’ accounts;
The Originator must agree to be bound by the Rules;
The Originator must agree not to originate Entries that violate the laws of the United States;
Any restrictions on the types of Entries that may be originated;
The right of the Third Party Sender to terminate or suspend the Origination Agreement for breach of the Rules in a manner that permits theThird Party Sender to comply with the Rules; and,
The right of the Third Party Sender to audit the Originator’s compliance with the Origination Agreement and the Rules.
(k) Third Party Senders originating BOC (Back Office Conversion) Entries must comply with the subsection of this ACH section entitled “BOC Entries”.
May 2, 2019
Lockbox Services Changes
In the subsection entitled "THE SERVICE", the description for Healthcare Lockbox has been replaced in its entirety by the following: "Healthcare providers interested in enhanced healthcare lockbox services should contact their TM Sales representative for information regarding a program offered by an unaffiliated third party provider. Customers who enroll in said program will be required to sign a separate agreement with Bank governing the transmission of data."
The subsection entitled "ADDITIONAL TERMS and CONDITIONS for HEALTHCARE LOCKBOX CUSTOMERS ONLY" has been deleted in its entirety.
February 21, 2019
Image Cash Letter Changes
The subsection entitled “THE SERVICE” was modified to reference the term “Eligible Items” and to define the term “Images”.
The subsection entitled “PROCESSING” was replaced in its entirety, as follows:
Customer agrees to follow all of Bank’s present and future requirements and instructions, including Operational Instructions, related to ICL. All Eligible Items imaged and transmitted to Bank using ICL must be legible and meet Bank’s processing requirements.
Subject to the terms hereof, any ICL files received before the cut-off time reflected in the applicable Operational Instructions will be processed on the day they are received and shall be afforded credit in accordance with the then current funds availability schedules. If for any reason Bank is unable to process an ICL file received before the cut-off, Bank will use commercially reasonable efforts to resolve the next Business Day. Subject to terms hereof, any ICL files received after the cut-off times will be processed on the next Business Day. ICL files will only be processed on Bank Business Days.
The information Customer transmits to Bank must contain a record of all Magnetic Ink Character Recognition (MICR) line information sufficient for Bank to create a substitute check and contain the correct amount of the Eligible Item. In addition, Customer’s transmission of an Eligible Item must meet the technical requirements for an “electronic item” under Regulation J and Federal Reserve Operating Circulars, a “substitute check” under Regulation CC, and an “item” as defined by Article 4 of the Uniform Commercial Code as adopted in the state for Customer’s Account and will be the legal representation of the Eligible Item for all purposes.
If an Image transmitted to Bank does not comply with Bank’s processing requirements, Bank may in its discretion:
Process the Image as received for payment;
Correct the Image or its accompanying data and process the corrected Image for payment;
Process the deposit for payment in another format as permitted by law; or
Charge back Customer’s Account and return the image and accompanying data to Customer.
Customer’s successful transmission of an Image to Bank for processing will be confirmed by a notice from Bank. Notwithstanding Customer’s receipt such confirmation, all of Customer’s transmissions are subject to Bank’s further verification prior to being accepted for deposit.
Bank can reject any Image Customer transmits to Bank for any reason in Bank’s discretion without liability, even where Bank has provided Customer with a confirmation notice. If Bank rejects Customer’s transmitted Image for deposit, Bank will notify Customer. All accepted deposits will be subject to final payment as well as the terms and conditions for Customer’s Account and this Agreement.
Bank will process any returned Eligible Items in accordance with applicable law and the deposit account agreement governing the Account for which the image is presented.
A new subsection, entitled “ELIGIBLE ITEMS” was inserted, as follows:
ELIGIBLE ITEMS
The ICL service can only be used for Eligible Items, which are items that:
Are paper items that are defined as checks by Regulation CC;
Are payable in United States currency;
Are drawn on a financial institution located in the United States;
Are properly endorsed (stamped or ink) or virtual endorsed using the software;
Are payable to Customer, unless such item is properly endorsed;
Are legible and conform to Bank’s imaging and processing standards; and
Are dated.
Customer may not image, transmit or otherwise try to use ICL to deposit checks or items that are not Eligible Items. The following items are not Eligible Items:
Substitute checks or remotely created checks as defined by Regulation CC;
Items that have already been deposited by or returned to Customer; or
Items that contain alterations or that Customer suspects, or should suspect, are fraudulent, not authorized, suspicious or not likely to be honored.
The subsection entitled “WARRANTIES” was replaced in its entire, as follows:
Customer warrants to Bank that: (I) it will transmit only Eligible Items to Bank; (II) any Image Customer transmits to the system utilized by Bank to provide ICL is a good and accurate image of the original check; (III) none of the items, including Eligible Items, that have been or will be transmitted to the Bank have been previously submitted or deposited with Bank or anyone else and will not be again unless Bank informs Customer otherwise; (IV) any information Customer transmits to Bank pursuant to this Agreement accurately represents all of the information on the front and back of the original check as of the time the original check was truncated, including without limitation: payment instructions placed on the check by, or as authorized by, the drawer, such as the amount of the check, the payee, and the drawer's signature; information identifying the drawer and the paying bank that is preprinted on the check, including the MICR line; and other information placed on the check prior to the time an Image of the check is captured, such as any required identification written on the front of the check and any endorsements applied to the back of the check; (V) no depository bank, drawee, drawer or endorser receiving presentment or return of, or otherwise being charged for, the substitute check, original check, or a paper or electronic representation of the substitute check or original check will be asked to make a payment based upon a check that it already has paid; (VI) it will not transmit any items for deposit into the same Account that the item is drawn on; (VII) following Bank’s notification to Customer confirming that Bank has received Customer’s transmission, Customer will not negotiate, transfer, deposit or present an Eligible Item, or a duplicate thereof, in any form including as an ACH transfer or as an image, reproduction, substitute check or remotely created check; (VIII) no person will receive a transfer, presentment, or return of, or otherwise be charged for, the electronic Eligible Item, the original Eligible Item, or a paper or electronic representation of the original Eligible Item such that the person will be asked to make payment based on an Eligible Item it already has paid; (IX) it has an Account with Bank in good standing; (X) it will comply with all laws, regulations, terms and conditions related to ICL including the terms of this Agreement and all other agreements related to the Customer’s Account; and (XI) any Image Customer transmits will meet the ANSI standards required by Regulation CC, or other applicable standards established by Bank, the Board of Governors of the Federal Reserve System, and any other applicable regulatory agency, clearing house or association.
Customer expressly disclaims all implied warranties, including without limitation the implied warranties of merchantability and fitness for a particular purpose.
Customer shall be responsible for communication costs, if any, for the transmission of data and/or the retrieval of data in connection with Customer’s utilization of ICL.
Customer agrees to comply with all rules and laws affecting the ICL Service including this Agreement, the Rules Governing Customer’s Deposit Accounts with Bank, the terms and conditions for use of Bank’s Electronic Banking services, the Uniform Commercial Code as adopted in the state for Customer’s Account, Regulations J and CC, and Federal Reserve Operating Circulars. Customer will release, indemnify, and hold the Bank harmless from any liability, loss, injury or damage, including without limitation all incidental and consequential damages, together with all related reasonable costs and expenses, including attorneys fees, resulting directly or indirectly from any breach of the warranties set forth herein and/or from any warranty or indemnity claim brought against the Bank by a third party under 12 CFR 229.52 or 12 CFR 229.53 in connection with an imaged check transmitted to Bank by Customer.
The subsection entitled “SECURITY” was replaced in its entirety, as follows:
Customer agrees that once an Image has been confirmed by Bank as having been successfully transmitted through the ICL Service, it shall securely store the original check for a commercially reasonable retention period. In general, such retention period should be between 30 and 60 days. During the retention period, Customer agrees to take appropriate security measures to safeguard the original check and related files against security risks. Security risks include, without limitation, the theft or reproduction of the original check or unauthorized use of the information on the check or in the file. Customer shall take appropriate security measures to ensure that only authorized personnel shall have access to the original check, that the information contained on the check shall not be disclosed, and that the original check will not be duplicated, will not be scanned more than once, and will not be re-presented, re-deposited or negotiated in any way. Upon request by Bank, Customer will promptly, but in any event within five (5) business days, provide to Bank a retained original check, or a sufficient copy of the front and back thereof, in order to aid in the clearing and collection process, to resolve claims by third parties, or for Bank’s audit or fraud loss prevention purposes. After the retention period expires, Customer shall destroy the original check by shredding it or by any other commercially reasonable manner. Customer agrees to be responsible to Bank for any losses, costs, expenses, and damages Bank may incur as a result of Customer’s failure to comply with the retention and destruction provisions outlined herein.
The subsection entitled “REJECTION OF IMAGES” was stricken.
The subsection entitled “RETURNED ITEMS” was stricken.
A new subsection, entitled “AVAILABILITY OF FUNDS” was inserted, as follows:
Eligible Items deposited using ICL are not subject to the funds availability requirements of Regulation CC. This will remain true even if Bank provides Customer with Regulation CC disclosures or notices. Following a transmission to Bank, Bank might at its discretion place an extended hold on Customer’s funds. If so, Bank will separately inform Customer of the extended hold and when funds can be expected to be available.
In the subsection entitled “WARRANTIES”, the following sentence was added as the new last sentence:
Customer warrants to Bank that any Third Party Agent is familiar with, and shall at all times be in compliance with the terms hereof, including without limitation, image quality, prohibition of duplicate items, and proper storage and destruction of original checks.
Remote Deposit Changes
The following paragraph was inserted
into the Processing subsection:
Subject to the terms hereof, any Eligible Items received before the cut-off time reflected in the applicable Operational Instructions will be processed on the day they are received and shall be afforded credit in accordance with the then current funds availability schedules. If for any reason Bank is unable to process an Eligible Item received before the cut-off, Bank will use commercially reasonable efforts to resolve the next Business Day. Subject to terms hereof, any Eligible Items received after the cut-off times will be processed on the next Business Day. Eligible Items will only be processed on Bank Business Days.
The following paragraph was stricken from the Processing subsection:
Customer shall completely and thoroughly destroy all original checks deposited pursuant to this Agreement within a commercially reasonable period of time. Until the original checks are destroyed, Customer will store them in a safe and secure location.
The subsection entitled “SECURITY” was replaced in its entirety as follows:
Customer agrees that once an Image has been confirmed by Bank as having been successfully transmitted through the Remote Deposit Service, it shall securely store the original check for a commercially reasonable retention period. In general, such retention period should be between 30 and 60 days. During the retention period, Customer agrees to take appropriate security measures to safeguard the original check and related files against security risks. Security risks include, without limitation, the theft or reproduction of the original check or unauthorized use of the information on the check or in the file. Customer shall take appropriate security measures to ensure that only authorized personnel shall have access to the original check, that the information contained on the check shall not be disclosed, and that the original check will not be duplicated, will not be scanned more than once, and will not be re-presented, re- deposited or negotiated in any way. Upon request by Bank, Customer will promptly, but in any event within five (5) business days, provide to Bank a retained original check, or a sufficient copy of the front and back thereof, in order to aid in the clearing and collection process, to resolve claims by third parties, or for Bank’s audit or fraud loss prevention purposes. After the retention period expires, Customer shall destroy the original check by shredding it or by any other commercially reasonable manner. Customer agrees to be responsible to Bank for any losses, costs, expenses, and damages Bank may incur as a result of Customer’s failure to comply with the retention and destruction provisions outlined herein.
A new subsection, entitled “REMOTE DEPOSIT AVAILABILITY” was inserted, as follows:
Remote Deposit may at times be unavailable to Customer, either with or without prior notice, due to maintenance, security, factors beyond Bank’s reasonable control or other reasons.
A new subsection, entitled “INDEMNIFICATION”, was inserted, as follows:
In addition to any other indemnification herein, Customer will indemnify and hold Bank harmless from any liability, loss, injury or damage, including without limitation all incidental and consequential damages, together with all related reasonable out-of-pocket costs and expenses, including legal fees, resulting directly or indirectly from: (1) any breach of warranty or other breach, or failure to perform under the terms hereof, (2) any warranty or indemnity claim brought against the Bank by a third party under 12 CFR 229.52, 12 CFR 229.53 or other regulations in connection with an ICL file transmitted to Bank by Customer; (3) any loss by any recipient of an Imaged Item processed by Bank, if that loss occurred due to the receipt of an Imaged Item instead of the check; (4) any wrongful acts or omissions of Customer, or any person acting on Customer’s behalf (including without limitation Customer’s authorized processor, if any), in connection with Customer’s use or misuse of Remote Deposits; and (5) without limiting Customer’s other indemnification obligations, which shall apply equally to actions taken by the Third Party Agent, all Third Party Agent’s actions or inactions relating to Remote Deposit, including those related to intellectual property claims. These indemnification obligations shall survive the termination of Remote Deposit.
In the subsection entitled “WARRANTIES”, item (iv) was modified to add the following language to the end thereof:
“..., including without limitation: payment instructions placed on the check by, or as authorized by, the drawer, such as the amount of the check, the payee, and the drawer's signature; information identifying the drawer and the paying bank that is preprinted on the check, including the MICR line; and other information placed on the check prior to the time an Image of the check is captured, such as any required identification written on the front of the check and any endorsements applied to the back of the check;”
In the subsection entitled “WARRANTIES”, a new item (XII) was added, as follows:
(XII) any Image Customer transmits will meet the ANSI standards required by Regulation CC, or other applicable standards established by Bank, the Board of Governors of the Federal Reserve System, and any other applicable regulatory agency, clearing house or association.
In the subsection entitled “THIRD PARTY AGENT”, the following sentence was added as the last sentence:
Customer warrants to Bank that any Third Party Agent is familiar with, and shall at all times be in compliance with the terms hereof, including without limitation, image quality, prohibition of duplicate items, and proper storage and destruction of original checks.
A new subsection, entitled “TERMINATION”, was added, as follows:
Notwithstanding anything contained in this Agreement to the contrary, Bank may terminate the Remote Deposit Service at any time. Bank will try to provide reasonable notice and in any event will provide notice as required by applicable law.
July 12, 2018
Trade Services
1. A number of wording, grammatical, typographical, clarification, and/or non-material changes and/or deletions were made throughout the Trade Services Terms and Conditions.
June 14, 2018
Automated Clearing House
1. Added the following definitions and terms to the “Third-Party Senders” section:
NACHA definitions of Third-Party Service Provider and Third-Party Sender were added as the first 2 paragraphs of this section; and
The third paragraph of this section was added providing that: “Customer represents and warrants that it will accurately reflect, where indicated on any onboarding forms, whether it is acting, or intends to act, as a Third Party Sender, as defined by the Rules. If Customer indicates on such onboarding forms that it is not a Third Party Sender, Customer may not subsequently act in such capacity without Bank’s prior approval. Customer shall be responsible for any losses, damages or costs incurred by Bank that are, directly or indirectly, related to any violations of these provisions.”
May 15, 2018
Escrow Express
1. Removed reference to and description of Funeral Trust service.
Positive Pay
1. Removed the following provision under the “Positive Pay and Payee Positive Pay” section: “For customers who enroll in Payee Positive Pay, checks presented over-the-counter for deposit will be verified by Bank after the close of business on the date of presentment. The Payee Positive Pay service is not available for checks presented over-the-counter for cash. Instead, the Positive Pay verification process (serial number and dollar amount only) will be conducted at the time of presentment.”
Remote Deposit
1. Under the “Additional Processing Requirements for Mobile” section, updated the restrictive endorsement wording to add the word “mobile” making the required restrictive endorsement “For Mobile Deposit Only to Account (insert Account number)”.
2. Under “Sublicense of Software” section, added “specified in this section” to the end of the 3rd sentence of the 1st paragraph.
3. Under the “Best Practices” section, removed “By signing this Agreement” from the beginning of the 3rd sentence.
April 5, 2018
Lockbox Services
1. Updated the first sentence under “The Service” heading to add “and/or Bank’s subcontractor (the “Processor”) to clarify that certain services will be performed by a subcontractor on behalf of Bank.
2. Added the following terms to the first paragraph under “The Service” heading: “The terms Bank and Processor may be used interchangeably when used in relation to any services performed by a subcontractor on behalf of Bank including, but not limited to, the receipt and processing of checks and remittances and any data relating thereto.”
3. Replaced the references to “Bank” under the “Processing” heading with the term “Processor”.
September 22, 2017
Automated Clearing House
1. Under the “Transmission of Entries by Customer”, added “that for Same Day ACH debit origination, customers will need to opt-in for the service.”
August 8, 2017
Positive Pay Services
1. Modified Positive Pay Terms and Conditions to indicate that for customers who enroll in payee positive pay, if checks with the same serial number and dollar amount but different “Payee” name are identified in two different Check Issue Files the Bank cannot perform a verification of the “Payee” name when those checks are presented over-the-counter for cash.
May 11, 2017
Defined Terms
1. The first sentence of the Defined Terms was added to clarify that capitalized terms used in the Agreement are defined in the Defined Terms section of the Agreement and/or the section of the Agreement where they are first used.
2. Definitions for “Agreement,” “Channels,” and “Service(s)” were added to the Defined Terms.
3. The definition of Target Balance was updated in the Defined Terms to clarify that, in addition to being reflected in the applicable Operating Instructions, it is also reflected in the Sweep Services section of the Agreement.
Electronic Bill Presentment and Payment
1. The first sentence of the first paragraph under the “The Service” heading was updated to clarify that the “payers” referenced were the “Customer’s payers” and to add an additional website option available through the Service, “a Customer-branded website published by the Bank or its agent.”
2. The second and third sentence of the first paragraph under the “The Service” heading were added in order to clarify that Customer may make authorized payments through the Service on behalf of its payers but the Bank is not responsible for confirming or validating the Customer’s authority to make such payments.
3. The first sentence of the second paragraph under the “The Service” heading was updated to replace “ACH” with “a checking or savings account, debit card, or credit card” in order to clarify the forms of payment that may be used.
4. The sentence “The payer gets an immediate email verification of payment” was removed from the "The Service" section because the payer will only receive an email verification of payment if the payer provides a current and valid email address.
5. The third sentence of the second paragraph under the “The Service” heading was updated to clarify that Customer may also download files through the administrative website.
6. The third paragraph under “The Service” heading was updated to clarify that the Customer will also have to complete the applicable Operational Instructions when enrolling in the Service.
7. Under the “Processing” heading, the sentence “Credit Card Payments are routed through Authorize.net and Bank processes those payments in accordance with instructions from Customer’s merchant service provider” was removed and replaced with the following paragraphs to clarify the process, the fact that the platform is hosted by an unaffiliated third party of Bank, and the requirements for Customer’s merchant service providers and processing gateways:
Debit and credit card payments are routed for authorization or decline to Customer’s merchant service provider (“Provider”). If applicable, settlement of such debit and credit card payments is performed by Provider.
The EBPP platform is hosted by an unaffiliated third party of Bank. Such host maintains connectivity with a select group of merchant service providers and processing gateways (“Available Merchant Providers and Processing Gateways”). Therefore, Customer must use Available Merchant Service Providers and Processing Gateways.
8. The fourth paragraph under the “Processing” heading was updated to clarify that Customer’s must enroll in the Bank’s ACH Service in order to accept payments via ACH through the Service.
9. A number of wording, grammatical, typographical, clarification, and/or non-material changes and/or deletions were made throughout the Electronic Bill Presentment and Payment section.
General Provisions
1. The following headings were added to the General Provisions for ease of reference: “Conflicting Demands,” “Limitation of Liabilities,” “Notices and Communications,” “Successors and Assignees,” “The Accounts,” “Headings,” “Severability,” “No Waiver,” “Governing Law/Waiver of Jury Trial/Disputes,” “Amendments,” and “Termination.”
2. A number of paragraphs and sentences were moved throughout the General Provisions so that they would be under the applicable headings.
3. Minor wording changes and deletions were made to the second sentence of the first paragraph of the General Provisions in an attempt to remove duplicative/unnecessary language and use the defined term “Services” where appropriate.
4. The following sentences were added to the second paragraph of the General Provisions: “There are no unwritten oral agreements between the parties with respect to the subject matter hereof. In the event of a conflict between the terms of this Agreement and the terms of any Operational Instructions provided to the Customer in connection with any Services, the terms of this Agreement shall control.”
5. The “Accessing Services Via the Internet” section was updated to replace the term “Site” with “Channels” (defined as the internet, including mobile applications, websites, and other related internet channels). The second sentence of this section was also amended to clarify that the Customer must also acknowledge the terms and conditions contained on the accessed Channels
6. The first paragraph under the “Notices and Communications” heading in the General Provisions was added to clarify when written notices and communications given to the parties under the Agreement would be effective and deemed given.
7. The third paragraph under the “Notices and Communications” heading in the General Provisions was added to include the option for Customer to request paper copies of disclosures and notices.
8. The fourth paragraph under the “Notices and Communications” heading in the General Provisions was added to include terms for Customer sending emails to Bank.
9. The first sentence under the “Governing Law/Waiver of Jury Trial/Disputes” heading was updated to clarify that any and all claims arising out of the Agreement or the breach thereof shall be governed by and construed under the laws of the State of New York.
10. The second sentence under the “Governing Law/Waiver of Jury Trial/Disputes” heading was added to include a waiver by each of the parties to the agreement to the right to trial by jury.
11. The third sentence under the Governing Law/Waiver of Jury Trial/Disputes” heading was revised to replace “prevailing party” with “Bank” as the party who may recover its reasonable attorney’s fees and court costs incurred in connection with a dispute arising out of the subject matter of the Agreement.
12. A number of wording, grammatical, typographical, clarification, and/or non-material changes and/or deletions were made throughout the General Provisions section, some of which were made in an attempt to remove duplicative and/or unnecessary language and shorten the section.
CD Rom Check Service
1. This section was removed because effective July 1, 2017, the CD-ROM Check Service is discontinued.
Image Services
1. The Image Services section was rewritten in its entirety to identify the four services offered as part of the Image Services, the Check Inquiry Service, Deposit Inquiry Service, Image Inquiry Service, and Image File Download Service. NOTE: Since the terms of the Image Services section are new, you should carefully read this section in its entirety in order to gain a full understanding of the terms and conditions applicable to the Service.