Cash Management Digital Services Agreement

Part A: General

This Cash Management Digital Services Agreement (this “Agreement”) sets forth the terms and conditions that are applicable to the cash management products and NEXT by CWB™ digital banking services described in this Agreement and made available to you by Canadian Western Bank (“we, us or our”). By applying for or using any of the products and services described herein, you agree to be bound by these terms and conditions.

Definitions:
In this Agreement, the words: 

Account(s) means all your current and future accounts with us, opened in your name, and that you may access from time to time through the Services (and Account means any one of your Account(s)).

Account Agreement(s) means the agreement(s) governing your Account(s).

Administrator means the administrative user named in the cash management application and agreement, signed by you, and any User who has been authorized in accordance with this Agreement to create and manage Users. 

Notifications are automated messages about certain events or conditions regarding your Account(s) and/or Service(s).
Business Day means any day that is not a Saturday, Sunday, or a day in which we are required or permitted to be closed in the province of Alberta.

Data Transfer means the process of transferring or sharing, upon you or your User’s authorization, your data with or to one or more products and services developed by third parties that you or your Users use in or through NEXT by CWB™ or authorize to access your data.

Device means any electronic device (such as mobile phone, tablet, laptop, or desktop computer) which gives Users access to the Services after successful Multi-Factor Authentication.

Eligible Items mean original cheques, bank money orders, bank drafts, convenience cheques and certified cheques issued by a bank located in Canada and payable in Canadian or United States dollars.

Instruction means an instruction that is communicated to us through NEXT by CWB™. 

Interac e-Transfer means the electronic transfer of funds to a designated recipient using the process provided through NEXT by CWB™.

Mobile App means any software that may be made available to you for download onto a Device to access the Services. 
Multi-Factor Authentication means the verification factors in the multi-step login process that allows us to verify that the persons accessing

NEXT by CWB™ on your behalf are your duly authorized Users.
NEXT by CWB™ means our digital banking platform for complex businesses through which the Services are made available to you.

Official Image means an electronic image of a cheque, bank money order, bank draft, convenience cheque or certified cheque, created in accordance with the provisions of this Agreement and that complies with the requirements to permit negotiation and clearing of that item in accordance with the by-laws, standards, and Rules.

Password means the combination of letters, numbers, and/or special characters selected by each User for their use as part of the Multi-Factor Authentication to help us confirm that they are the persons accessing the Services.

Mobile Remote Deposit Service means the remote deposit capture service accessed through NEXT by CWB™ that allows you to deposit Eligible Items in your Accounts using a Device(s) by delivering Official Images and associated deposit information to us through NEXT by CWB™. For clarity, the Mobile Remote Deposit Service is not the Corporate Remote Deposit Capture Services. The Corporate Remote Deposit Capture Service is a separate and distinct service described in detail in the schedules to this Agreement.

Rules means the published rules and standards of Payments Canada as amended from time to time.

Services means the cash management products, services, functionality, content and information that we make available to you, through NEXT by CWB™ pursuant to this Cash Management Digital Services Agreement and any accompanying Service Schedule(s). 

Service Provider means any of our suppliers, licensors, vendors or any third party which provides a service or system used in relation to the Services.

Service Schedule means the additional terms applicable to each cash management product made available pursuant to this Agreement.

Transaction means any credit or debit processed to or from your Account(s) through NEXT by CWB™.

User means an individual that has been given access to your Accounts and the Services through NEXT by CWB™ in accordance with the terms and conditions of this Agreement to conduct or approve Transactions, provide Instructions, enter or access Account information or create and manage other Users on your behalf.

You or your means the business who holds the Account(s) with us.

Any defined words importing the singular number only shall include the plural and vice-versa.

All other capitalized terms in this Agreement or in any Service Schedule have the meaning given to them elsewhere in this Agreement, any applicable Account Agreement or in any applicable Service Schedule. The Schedules attached to this Agreement form an integral part of it.

Scope of Services
This Agreement outlines the terms and conditions pursuant to which we provide you with digital access to your Accounts and make the Services available to you through NEXT by CWB™.

Supplemental terms and conditions applicable to a specific Service may be set out in the applicable Service Schedule. Each Service Schedule will be deemed to incorporate all of the terms and conditions of this Agreement. In the event of any inconsistencies between this Agreement and any Service Schedule, this Agreement prevails unless such Service Schedule specifically states otherwise.

You may select Services by delivering to us applicable forms and other documentation that we may require in respect of that product or service (collectively, the "Services Requesting Documentation"). You agree that the Service Schedule for each product or service you request will become effective immediately upon our receipt of the Services Requesting Documentation and shall be subject to and governed by the terms and conditions (as amended from time to time) of the agreements and documents listed below, which are to be read together (collectively referred to as the "CWB Agreements"):

a) this Agreement;

b) each applicable Service Schedule;

c) the applicable Pricing Arrangements;

d) Services Requesting Documentation;

e) account opening agreements governing your Accounts, including your Account Agreement; and 

f) such other documents and agreements we may require from time to time.

This Agreement shall be read together with any other existing or future agreements you may have with us.

By accessing and using NEXT by CWB™ or any of the Services described in this Agreement or any Service Schedule, or authorizing others to use such Services, you agree to the terms and conditions of this Agreement without the requirement for a signature on this Agreement or any other agreement.

Part B: Digital Banking

Users and Access
You hereby authorize us to provide Users access to your Accounts through NEXT by CWB™ as well as access to the Services.

An Administrator shall have the authority to designate other individuals as Users and may give such Users different levels of access to the Services, including designating additional Administrators. An Administrator may restrict or revoke a User’s access to the Services at any time.

Users shall only be authorized to enter or access such Account information, conduct or approve those transactions or provide Instructions which have been designated to them by an Administrator. You are solely responsible for ensuring that the level of access and authority provided to any User is appropriate for that person and is in accordance with your internal protocols and policies.

We have the discretion to accept, reject or terminate any User’s access to the Services at any time.

You will share the terms of this Agreement and any applicable Services with all Users.

Authority
You represent and warrant that:

a) your Users are acting with the full authority of your board of directors, members, partners, general partners, trustee, board of trustees or other applicable governing body (as the case may be) in their use of NEXT by CWB™ or the Services; and 

b) you have granted authority to such Users to legally bind you with respect to their use of the Services. Any access to or use of NEXT by CWB™ or the Services purporting to be authorized by you or on your behalf by your Users will be considered by us, for all purposes, to be duly authorized by you. For greater certainty, you will be bound by all information, orders, entries and other Instructions provided by you or on your behalf by your Users through the Services and you will be liable for all transactions conducted or Instructions given through the Services and any loss that may arise from these transactions. You acknowledge that each transaction made or Instruction given through NEXT by CWB™ or the Services or any other permitted means on your Accounts is authorized as though each Instruction, verification or other approval has been duly signed and delivered by you to us.

You represent and warrant to us that all entities (“Related Entities”) whose accounts you, and your Users, can access through NEXT by CWB™ have authorized such access. Each User shall be entitled to access the accounts of each Related Entity, whether or not such person is named in any account documentation of a Related Entity as an "authorized agent" or "authorized signer" and whether or not such person is otherwise authorized to sign on a particular account. Each User shall further be entitled to access and control all such accounts singly via NEXT by CWB™ without regard to any multiple signer designations, requirements, or restrictions that might otherwise be applicable to a specific account. Such access includes, without limitation, the ability to: 

a) electronically control such accounts; 

b) view, and initiate transactions and withdrawals; 

c) transfer money; 

d) change addresses and other account information; 

e) generally perform all types of electronic transactions to and from each account; and

f)  further authorize other Users to access the accounts to perform similar functions.

As a result of the powers granted to Users in this Agreement, we may receive and carry out transactions, authorizations, and other Instructions through NEXT by CWB™ in respect of the Services even though such Account requires two or more signatures to conduct Transactions (for example, writing cheques or making withdrawals at a banking centre). This means that Instructions, approvals, or other authorizations with respect to the Services, may be received and acted upon by us on the Instruction of one User even though such Account requires two or more signatures and even though such Account may hold trust funds for transactions which occur outside the scope of this Agreement and any accompanying Service Schedule. If such Instruction conforms to the requirements set out in this Agreement or any Service Schedule, such Instruction will be deemed to be duly authorized by you.

Part C: Security

You agree to ensure that each User maintains the security of their login ID, Password, and all other verification factors in the Multi-Factor Authentication. In that respect, you agree to implement the following security procedures:

a) you shall implement and ensure you and your Users follow such procedures and controls as we may reasonably require in connection with NEXT by CWB™ or any Service; 

b) you shall ensure that all login IDs, Passwords and all other verification factors in the Multi-Factor Authentication are treated in the strictest confidence and that no User discloses such information to any other person; 

c) you shall establish and implement policies, procedures and a system of controls over use of the Services and perform such audits as you believe are appropriate to ensure that the Services are only used by Users in an appropriate and proper fashion; 

d) you shall ensure that Users never leave their computers unattended while logged into NEXT by CWB™ and must always exit by clicking on the appropriate 'logout' command; 

e) you shall ensure that all applicable login ID, Password, and all other verification factors in the Multi-Factor Authentication be immediately terminated if you learn or suspect that such information has been disclosed to, or obtained by, any unauthorized third party; 

f) you shall ensure that NEXT by CWB™ is only accessed from Devices on which proper security software is operating (e.g. Virus scanners, Malware scanners, Phishing scanners, appropriate Firewalls and VPNs, etc.)  You agree to immediately update all security protection and firewall software as such updates become available from the manufacturer; 

g) you shall follow any login ID, Password and all other verification factors in the Multi-Factor Authentication requirements established by us and, in any event, ensure that login IDs, passwords and any other authentication methods (such as authentication questions) be unique and not easily guessed by others in accordance with industry standards;

h) Users shall follow procedures dealing with intelligent authentication. For greater certainty, intelligent authentication consists of security questions along with answers unique to each User. You agree that each User of NEXT by CWB™ shall set up (if required) unique questions and answers which are not easily identifiable or guessed; 

i) ensure that any Mobile App is deleted from all Devices that are given away, sold or disposed of; and

j) Users do not respond to unsolicited communications asking for personal information, such as emails, telephone calls, SMS text messages, other internet requests, even if such requests appear to be from us. Users must only initiate communications with us either through NEXT by CWB™ services or any Mobile App. We will never contact you or Users asking for login IDs, Passwords, or any other verification factors in the Multi-Factor Authentication.

When a User provides Instructions, the User may be prompted for Multi-Factor Authentication to authenticate the Instruction. You acknowledge that levels of access or transaction limits may be established by you or us from time to time and that the User will not be able to complete the transaction or effect the change unless the Multi-Factor Authentication is successful.

You are responsible for instructing all Users to comply with the security procedures set out in the sections above. If at any time you believe that the security of communications between you and us has been compromised or is in any way insecure, you must immediately notify us and assist as required by us to investigate and correct the communication security.

You accept sole responsibility for any loss or damage that may result from any User misusing their authority in any way, including, without limitation, in respect of any funds which are trust funds. A User’s rights in respect of the Services shall continue until such time as an Administrator removes such individual or otherwise changes his/ her delegated authority and we have had sufficient time to process the request. For greater certainty, once we have processed such request, any changes or deletions of delegated authority take effect upon the following attempt to log in to NEXT by CWB™ by such User.

We may be required to obtain confirmation of identity or other information in relation to any User in compliance with applicable laws. This information may be obtained before or after access is granted to any such User, and access to NEXT by CWB™ whether partial or complete, may be blocked or limited until this information has been fully obtained (in our sole discretion). When any such identity is information provided by you to us, you certify that such information is true and correct.

You shall notify us immediately if you suspect that any login ID, Password, any other verification factor in the Multi-Factor Authentication or Device on which Multi-Factor Authentication or any part thereof may be prompted has become known to or accessible by an unauthorized person. You agree that we may block access to Services without notice if we believe that there has been a breach in security. We will not be liable for any losses or damages that you may suffer or incur in relation to the Servies or from acting on Instructions receive through NEXT by CWB™. We shall have no liability for any unauthorized use of login IDs, Passwords or any other verification factor in the Multi-Factor Authentication before you notified us of possible unauthorized use and we have had a reasonable opportunity to act upon such notice. In no circumstances shall we have any liability for any unauthorized use of your or any User’s identifying information or any verification factors in the Multi-Factor Authentication. In no circumstances are we required to verify the identity of or to confirm if any authority has been granted to the provider of Instructions beyond Multi-Factor Authentication.

To have NEXT by CWB™ access, please follow the instructions in the Client User Guide provided to you by your banking centre. We have the right, at any time, to enhance the security associated with the Services. You understand that it may be required to update its browser, system or security procedures and agree to do so as requested by us to continue accessing or using NEXT by CWB™.

If we make a Mobile App available to you and your Users: 

a) we grant you a non-exclusive and non-transferable license to the Mobile App in object code only and solely for the purpose of accessing any services (including the Services), functionality, features, content and information that we offer from time to time; 

b) we reserve all of the rights in and to each Mobile App and you obtain no ownership rights whatsoever other than this license to use the Mobile App; 

c) we accept no responsibility or liability whatsoever for your use of the Mobile App and will not be responsible for any damage that you may suffer from using or downloading the Mobile App whether under this Agreement or otherwise; and 

d) we may cancel the terms and the license to the Mobile App at any time on notice. If we do that, then you will immediately destroy or return all copies of the Mobile App and any documentation in relation to it that is in your possession including the possession of your Users.

Part D: Bill Payments

If we permit, you may be entitled to utilize NEXT by CWB™ to make digital bill payments to payees designated by you ("Billers"). You authorize us to follow any payment Instructions for bill payments received by us through NEXT by CWB™. We will, after receipt of the Instruction, debit the Account designated in the Instruction on the date scheduled in the Instruction and remit funds on your behalf to the Biller as close as reasonably possible to the date designated.

You authorize us to make bill payments to the Biller by any means we determine appropriate.

You acknowledge that, as different bill payment companies have different payment requirements, it is your responsibility to know what your bill payment company's requirements are and to make bill payments accordingly. 

We shall have no responsibility for: 

a) delays in crediting payments which are due to the Biller's procedures; 

b) your or your Users’ failure to follow a Biller's payment requirements;

c) your or your Users’ failure to schedule a date to remit funds sufficiently in advance of the date a bill payment is due;

d) funds being transferred to the wrong Biller caused by you or your Users providing the wrong account number. We will not be responsible or obligated to retrieve or return such funds to you. Without limiting any other provisions in this Agreement, we will incur no liability if the Service is unable to complete any bill payments initiated through NEXT by CWB™ if your Account does not contain sufficient available funds to complete the payment or the payment would exceed the credit limit of the designated Account's overdraft.

We will not be responsible under any circumstances for any late payment penalties, fees or interest imposed by your Biller.
Except for a bill payment which is authorized to take effect on a future date (which can be revoked or countermanded prior to such date), once we receive a Bill Payment Instruction, you may not revoke or stop the corresponding Transaction once the Bill Payment Instruction request has been processed. We reserve the right to apply daily limits and transaction limits.

Part E: Stop Payments

If we permit, you may be entitled to use the Services to stop payments on any preauthorized debits or cheques (hereinafter collectively, an "Item") issued by you. We will use all reasonable efforts to stop payment on an Item provided that stop payment Instructions are received in sufficient time to permit us a reasonable opportunity to return the Item in compliance with any applicable laws or clearing rules.

You acknowledge that any stop payment order is also conditional and subject to our verification that the Item has not already been paid or that some other action to pay the Item has not been undertaken by us. 

We shall only be required to stop payment on an Item if you provide us sufficient information in respect of the Item that you request for payment to be stopped. If you provide us with an incorrect amount or any other incorrect information in respect of the Item, we will not be responsible for failing to stop payment on the Item. 

By directing us to stop payment on any Item, without limiting any other provision of this Agreement, you agree to indemnify and hold us harmless against any and all losses, claims, damages and costs we may suffer or incur relating to our action in refusing payment of the Item including any claims of any joint owner, payee or endorsee or in failing to stop payment of an Item as a result of incorrect information provided by you. 

Part G: Interac e-Transfers

Interac e-Transfers are only available in Canadian dollars. Your Account will be debited as soon as you or a User provides an Instruction to initiate an Interac e-Transfer and we may hold the Interac e-Transfer amount until the recipient successfully claims the Interac e-Transfer or the Interac e-Transfer is cancelled.

We have no obligation to pay and will not pay interest on an Interac e-Transfer amount for any reason. To the extent permitted at law, we are deemed to have a security interest in an Interac e-Transfer amount from the time the Account is debited until the recipient successfully claims the Interac e-Transfer or the Interac e-Transfer is cancelled.

Interac e-Transfers sent and received through NEXT by CWB™ are subject to number and dollar limits that may change from time to time without prior notice to you. We will not be responsible or liable for any losses or damages incurred as a result of funds held and limits set by us, our clearing organization or any service provider.

If you are the sender, you will, and shall ensure Users, keep the Interac e-Transfer answer that is shared with the recipient (the “Interac e-Transfer Answer”) confidential and you agree to not, and shall ensure Users do not, disclose it or share it with anyone but the intended recipient. The recipient must correctly provide the Interac e-Transfer Answer to claim or decline the Interac e-Transfer. 

We, the receiving financial institution, our clearing organizations and service providers are entitled to pay an Interac e-Transfer amount to anyone who, using the Interac e-Transfer process, claims to be the recipient and successfully provides the Interac e-Transfer Answer. 
We will not be liable for losses or damages incurred because of a person other than the intended recipient guessing or obtaining the Interac e-Transfer Answer.

If you are the sender of an Interac e-Transfer, you will not, and shall ensure Users do not, include the Interac e-Transfer Answer in the transfer details. If you are the recipient of an Interac e-Transfer, you agree not to disclose the Interac e-Transfer Answer except as required to claim or decline the Interac e-Transfer.

If the recipient of an Interac e-Transfer has registered for Autodeposit, the recipient will not be required to provide the Interac e-Transfer Answer and the Interac e-Transfer will be automatically deposited into the recipient’s account. If you want to enable Autodeposit as a recipient through the NEXT by CWB™ Services, follow the instructions on our website www.cwbank.com or contact your banking centre. 
While funds are expected to arrive in the recipient’s account within 3 to 5 business days from the day the recipient successfully claims an Interac e-Transfer, we do not guarantee the date of deposit. 

If you are the sender of an Interac e-Transfer, you and your Users may cancel an Interac e-Transfer up to the time the recipient successfully claims the Transaction. As the recipient or receiver, you acknowledge that an Interac e-Transfer may be cancelled up to the time you or your Users successfully claim the Transaction.

If the recipient successfully claims the Interac e-Transfer but provides incorrect account information, our clearing organization or our agent may request correct account information from the recipient or may initiate another claim process.
 
If you are the sender, an Interac e-Transfer will be returned to you if:

a) the recipient does not claim the Interac e-Transfer within 30 days of the date the Interac e-Transfer is initiated; 

b) the Interac e-Transfer cannot be successfully sent to the recipient’s electronic address as provided by you; or

c) the recipient declines the Interac e-Transfer.

You are responsible for providing, and shall ensure Users do provide, the recipient’s correct electronic contact information and as a condition of using our Interac e-Transfer service, you represent and warrant that the recipient has consented to your collection, use and disclosure of the recipient's electronic contact information for Interac e-Transfers, including without limitation, to its disclosure to us, the recipient’s financial institution, our clearing organization and their service providers.
 
We may cancel an Interac e-Transfer if we have reason to believe that a mistake has occurred or if we believe that the Interac e-Transfer is a product of unlawful or fraudulent activity.
 
We may also cancel, suspend or refuse to provide an Interac e-Transfer for you or the Interac e-Transfer service at any time in our discretion.
We will not be liable for any cost, expense, loss, damage, or inconvenience of any nature or kind whatsoever arising as a result of a delay in processing an Interac e-Transfer or for an Interac e-Transfer claimed by someone other than the intended recipient. We will not be responsible or liable for any losses or damages incurred as a result of funds held and/or limits we set, our clearing organization or any service provider. All disputes regarding Interac e-Transfers will be handled directly between the sender and the recipient.

Interac e-Transfer Request Money
You may send or receive a request for an Interac e-Transfer through NEXT by CWB™ services (an “Interac e-Transfer Request”). If a recipient of an Interac e-Transfer Request does not respond within thirty (30) days of receiving the Interac e-Transfer Request, we will notify you by email that your request has expired.

You are responsible for providing, and shall ensure Users do provide, the responder’s correct electronic contact information and as a condition of using our Interac e-Transfer service. You warrant and represent that the responder has consented to your collection, use and disclosure of the responder’s electronic contact information for Interac e-Transfer Requests, including without limitation, to its disclosure to us, the responder’s financial institution, our clearing organization and their service providers.

The email or instant message notification that is sent to a recipient of an Interac e-Transfer Request indicates that the sender of the Interac e-Transfer Request is requesting money and discloses:

a) the name of the Interac e-Transfer Request sender, 

b) the name of the Interac e-Transfer Request recipient, and 

c) the amount of the Interac e-Transfer Request.

If you are the sender of an Interac e-Transfer Request, you acknowledge that you have an existing relationship with the recipient of the Interac e-Transfer Request and that the recipient will know that the Interac e-Transfer Request came from you.

If the sender of an Interac e-Transfer Request has registered for Autodeposit, the sender of the Interac e-Transfer Request will not be required to provide an Interac e-Transfer Answer and the Interac e-Transfer will be automatically deposited into the account of the Interac e-Transfer Request sender.

Part H: Mobile Remote Deposits

If we make Mobile Remote Deposit Service available to you, then the terms and conditions contained in this Part, in addition to the other terms and conditions in this Agreement, shall apply to your use of Mobile Remote Deposit Service.

You cannot deposit any of the following through the Mobile Remote Deposit Capture Service:

a) items payable to any person or entity other than the person or entity that owns the Account(s) that the item is being deposited into;

b) items which have been altered on the front, or which you know or suspect, or should know or suspect, are fraudulent;

c) items payable jointly, unless deposited into an Account in the name of all payees;

d) items drawn on a financial institution located outside Canada; 

e) photocopies, PDFs or other printouts of items; 

f) items which are postdated or dated more than 6 months prior to the date of deposit;

g) items with any endorsement on the back other than that specified in this Part; and

h) items which have been already deposited through the Mobile Remote Deposit Capture Service, a remote deposit capture service offered at any other financial institution, or any other means, unless you are requested to do so by us in writing.

You acknowledge and agree that:

a) solely for the Mobile Remote Deposit Capture Service, we appoint you and your Users as our agents, to act on behalf of us in the creation and transmission of an Official Image to us, and any other related duties that we may require, all in accordance with the Rules and applicable legislation governing cheques, bank money orders, bank drafts, convenience cheques and certified cheques. In this context, transmission to and receipt by us of the Official Image will have the same effect as if the item was delivered to our banking centre for negotiation and clearing. You acknowledge and agree that you and your Users cannot further delegate this role as agent and shall ensure your Users do not further delegate this role;

b) you shall be personally responsible and liable for:

i) ensuring that all Official Images created and transmitted are of good quality and fully and accurately capture all material details of the Eligible Item,

ii) maintaining adequate safeguards and procedures for the preservation of originals of all Eligible Items transmitted as Official Images, and

iii) verifying that deposits expected to be made to the Account(s) reconcile with dates and amounts applicable to transmissions made using the Mobile Remote Deposit Capture Service and for providing immediate notice to us of any errors, omissions, irregularities, or concerns about suspicions of fraudulent cheques, bank money orders, bank drafts, convenience cheques and certified cheques or compromise of the security applicable to the use of the Mobile Remote Deposit Capture Service;

c) we may, upon receipt of what reasonably appears to qualify as an Official Image, treat such as an Official Image as if it were an original of an Item received at one of our banking centres, subject to the Account Agreement and any of our policies governing cheques, bank money orders, bank drafts, convenience cheques and certified cheques;

d) the creation of an Official Image will be done using a method authorized by us, in our sole discretion, from time to time. Further, you agree to take all proper and necessary precautions to prevent any other person from purporting to create or transmit an Official Image to the credit of your Account(s);

e) nothing in this Agreement obliges us to accept for deposit any item whether it is or purports to be an Official Image. If you or your Users have any suspicions or concerns about the authenticity, validity, negotiability, or chain of title to any item purporting to be an Eligible Item, then you shall not, and shall ensure your Users do not, seek to use the Mobile Remote Deposit Capture Service for negotiation or collection of that item, but will instead bring the original of that item to the counter of your banking centre, identify the specific concerns to us, and fully disclose all material facts known to you relating to that item and fully cooperate with any inquiry or investigation of the concerns;

f) if you or your Users use the Mobile Remote Deposit Capture Service with an item that does not qualify for this Service, we, at our discretion, may refuse to negotiate that item or seek to collect on the item on your behalf, as though it was an Eligible Item but without any liability on our part for any delay, inability to collect or any issue arising that inhibits or prevents us from collecting funds on the item;
g) Official Images received through the Mobile Remote Deposit Capture Service are subject to number and dollar limits that may change from time to time without prior notice to you;

h) any Transaction made on any day or at any time during which we are not open for business, may be credited to the Account on the next business day;

i) you agree to not, and shall ensure your Users do not, make any further use of the original of an imaged Eligible Item, and shall safely retain possession of the original of the Eligible Item without further negotiation, transfer, or delivery to any other person or holder;

j) on transmission of an Official Image of an Eligible Item to us, you are responsible for ensuring the face of the Eligible Item is immediately marked with a blatant notation or mark that prevents renegotiation of the Eligible Item and indicates that the Eligible Item has been imaged and transmitted, care is taken not to obliterate any material particulars of that Eligible Item. For example, this can be done by writing “void” or “paid” or placing a diagonal stroke across the face of the item with a pen, or brightly coloured highlighter. For a period of 120 days after transmission of the Official Image to us, or such shorter period as stipulated by us in writing, you shall retain and produce to us on written request the original of all imaged Eligible Items. If you receive a written request to retain or produce the original of any imaged Eligible Item, you will comply with the written request, and shall, if requested, produce, by delivering to us, the originals of all specified Eligible Items within 5 business days of such request. If you fail to comply with the written request made pursuant to this provision, then we can place or continue a hold on or reverse any credit made to the Account in relation to those specified Eligible Items, even if such creates an overdraft on the Account. If no written request is received within that time, then 120 calendar days after an Official Image has been transmitted to us through the Mobile Remote Deposit Capture Service or such shorter period as stipulated by us in writing, and provided that you have verified a credit to the Account that reconciles to the Official Image transmitted, you agree to immediately proceed with destruction of the original of the Eligible Item. Destruction methods include shredding, pulping, burning, or any other means that ensures that the original item cannot be reused;

k) you are responsible for any and all costs associated with obtaining a replacement Eligible Item in the event that we request you to re- transmit an Official Image in accordance with this Part, and the original Eligible Item was destroyed in accordance with this Part or otherwise lost;

l) in our sole discretion, electronic notices for purposes related to the Mobile Remote Deposit Capture Service may be generated and sent to you after you use the Mobile Remote Deposit Capture Service to transmit an Official Image, including to advise you of the receipt by us of an Official Image;

m) an electronic notice, if any, sent in connection with the Mobile Remote Deposit Capture Service is for information purposes only and is no guarantee that the Official Image will be accepted by us or that the Account will be credited;

n) we will not be liable for any cost, expense, loss, damage, or inconvenience of any nature or kind whatsoever arising as a result of your or your Users’ use of the Mobile Remote Deposit Capture Service, including, but not limited to, a delay in processing a Transaction or if we require you to obtain another cheque, bank money order, bank draft, convenience cheque or certified cheque;

o) you accept the risk that an Official Image may be intercepted or misdirected during transmission, and we bear no liability to you or others for any such intercepted or misdirected Official Image or information disclosed through such errors; and
p) you agree to indemnify us for all claims, losses, damages or costs (including solicitor and own client costs on a full indemnity basis) incurred from your and your Users’ use of the Mobile Remote Deposit Capture Service, duplicate negotiation of items that were at any time presented as Official Images of  Eligible Items, misuse of Official Images or items purporting to be Official Images, or negotiation of Eligible Items where an Official Image has also been transmitted for collection.

Part I: Notifications

Users may subscribe to various Notifications in accordance with the level access of such Users to the Services. Users can choose to receive Notifications via email, push notification to a Device, or any other method we offer from time to time. Notifications do not constitute bank records for the Account(s) to which it pertains. We may add new Notifications or discontinue old Notifications from time to time without prior notice to you.

You hereby acknowledge and accept that Notifications are sent to Users without being encrypted and may include information pertaining to your Account(s). Account numbers will be partially masked. 

It is your responsibility to determine if the applicable mobile carrier or Internet service provider supports the type of Notifications Users have selected and if the Users’ Devices are capable of receiving such Notifications. Depending on the chosen Notifications delivery method, you acknowledge that Users must have internet and/or data services enabled on their Devices. 

Notifications are subject to the terms and conditions of applicable agreements with Users’ mobile carrier and/or internet service providers. We are not responsible for any fees or charges of any kind whatsoever imposed by your or your Users’ mobile service providers and internet service providers.

Information such as your Account balances and due dates for account payments may be included in Notifications. Anyone with access to Users’ emails or Devices may be able to view these Notifications. It is your responsibility to ensure that this information is kept confidential and secure.

You acknowledge that the contact information Users provide when enabling Notifications through NEXT by CWB™ services is not reviewed or verified by us prior to or following activation of the Notifications service. It is your and your Users’ responsibility to ensure that such contact information is current and accurate.

At any time, Users may disable certain Notifications through NEXT by CWB™. 

Notifications may be delayed, not delivered or be inaccurate due to a variety of factors, including technical problems or as required by applicable law. We will not be liable to you for any losses arising out of Users’ use or inability to use the Notifications, or for the accuracy or inaccuracy of any Notifications. 

Notifications may be lost, intercepted, reviewed, or altered by others. Telephone Notifications may be provided by an automated message which would be read to any person who answers User phones or is left on User answering machines. You accept the risk that the Notifications may be lost, intercepted, reviewed, or altered by others.

Part J: Privacy

Our Privacy Statement describes how we collect, use and share your and your User’s personal information. For more information about what we collect from you, the information we use and disclose when you access, or use, NEXT by CWB™ or the Services, refer to the Privacy Statement on the cwbank.com website.

We may contract with third parties or agents and Service Providers to collect, use, store, transfer, or process personal information on our behalf in connection with the Services. For certain Services, you understand that it will be linked or directed to third party websites of Service Providers. You acknowledge that the use of such third-party Service Provider websites is subject to the terms and conditions of use and the privacy policies of such websites. We make no warranties or representations (express or implied) concerning the websites of Service Providers, or any product or services offered thereon, and we are not responsible for such websites or any acts or omissions of any Service Provider in providing the Services from such websites. We may, in our sole and unfettered discretion, delegate any duties or rights under this Agreement to agents (including, without limitation, third party sub-contractors), and we may change such agents and the way their duties are assigned without notice to you. 

You understand that some of these third parties or agents may be located outside of Canada, and information (including personal information) may be transferred or processed outside of Canada for these purposes. Personal information held with a third party or agent in another province or country is subject to the laws of that jurisdiction and may be collected, used or disclosed without your knowledge or consent where required or permitted by law.

You consent to us disclosing personal and other financial information to third parties or agents and Service Providers. Furthermore, you represent and warrant that you have obtained the consent of each User to the collection, use and disclosure of their personal information by us and the Service Providers for the purpose of providing Users access to NEXT by CWB™ and enabling them to use the Services.

Part K: Third Party Services

We may, from time to time, make services or applications provided by third parties available through NEXT by CWB™. You acknowledge and agree that:

a) we make the services or applications of third parties available through NEXT by CWB™ for your convenience. The services and applications are provided by the third parties and not us. Your relationship with the third parties shall be a separate relationship, independent of the relationship between you and us, and such services, applications, and relationships with third parties are outside our control;

b) those third-party services and applications which may be made available to you are subject to the third parties’ respective terms and conditions, including their respective privacy policies. Please carefully review these third-party terms and conditions and privacy policies. If you do not agree with the terms and conditions or privacy policies of any third-party service or application, including Data Transfer, you should not use or access the third-party service or application or permit it to have access to your data;

c) we may use (and provide to third parties) a service for Data Transfer in order to, among other things, facilitate certain interoperability, data integration, and data access between NEXT by CWB™ services and the applicable third-party services and applications. By signing up or by using any third-party service or applications, you agree that: 

i) we may transfer your data to all third-party service providers or applications you request subject to the third parties’ terms and conditions, and

ii) third party service or application provider may transfer your data from the third party to NEXT by CWB™ services for use in accordance with the Terms.

d) You grant all rights to use your data as reasonably necessary to facilitate the Data Transfer to third party service and application providers and you acknowledge that third party service and application providers may be located in a country that does not have adequate security controls to protect your data. You agree that the third-party service and application providers, and not us, are solely responsible for and their use or disclosure of your data.

e) we make no representation or warranty to you with respect to any services or applications provided by a third party even though those services may be accessed by you or a User through NEXT by CWB™;

f) you assume all risks associated with accessing or using, and your Users accessing and using, the services and applications of third parties;

g) we have no responsibility or liability to you in respect of services and applications provided by a third party;

h) any dispute that relates to services provided by a third party is strictly between you and the third party, and you will raise no defence or claim against us; and

i) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and Regulations may apply to the services provided by third parties and that the third parties may, from time to time, adopt policies and procedures to address the reporting, record-keeping, client identification, and ongoing monitoring requirements of that legislation.

Part L: Statements

In addition to your regular Account(s) statements, we may provide you various confirmations, statements, and reports of your activities in respect of the Services. It is your obligation to examine those statements and report any discrepancies. Our records will, in the absence of obvious error or as otherwise agreed by us in writing, be conclusive evidence of the information received by us and the transactions between us and you. The computer-generated or electronic records received or created by us will be admissible in a court of law and you consent to such admissibility and waives any defence you may have as to their admissibility.

Part M: Instructions

To the extent permitted by us, Users (to the extent that they have been given such authority) may conduct Transactions and send Instructions regarding the Services by secure messages or by following the applicable prompts and inputting the required information on NEXT by CWB™. All Transactions or Instructions provided by any Users must, at all times, be in accordance with the terms set out in Agreement or in any applicable Service Schedule.

You will ensure that all Instructions are received in sufficient time to permit us a reasonable opportunity to deal with them or as otherwise specified by us. 

We may rely on any Instructions regarding the Services or other Instruction input from or which purport to be given by Users and received:

a) through NEXT by CWB™; or

b) in compliance with the applicable Service Schedule or with this Agreement.

It is your responsibility to ensure that all information and Instructions provided to us are accurate and complete. We may treat any Instruction as fully authorized by you in writing regardless of actual identity or authorization of the sender or any errors, mistakes or discrepancies between account names or numbers and such Instructions shall be binding upon you. We will not be responsible in any way for errors resulting from the inaccuracy of incompleteness or fraudulent alteration of any Instructions or information furnished to us by you or your Users. We have no obligation to verify any information provided by you nor to inquire into or otherwise consider the correctness or validity of any Instruction. We will not be liable for any losses or damages that you may incur in relation to the Services from acting on Instructions when we acted in good faith believing such person to be you or a User. You must confirm that we have received the Instructions as we are under no obligation to confirm receipt. 

We may, in our sole discretion, decline to act on any Instructions, either in whole or in part, when: 

a) such Instruction is unclear or suspicious; 

b) such Instruction is provided with unsatisfactory verification of identity; 

c) such Instruction is not in accordance with the terms of this Agreement or any other agreements dealing with the operation of the Account(s) or the Services; 

d) We have reason to believe that such Instruction may not be authorized by you; 

e) such Instruction would violate any applicable law, rule or our internal policies and procedures; 

f) monies in any Account are subject to a hold; or 

g) you do not have enough available funds in any Account (or available overdraft protection) or credit to cover the Instruction, in which case, we will not be liable for any delay, failure or refusal to act in any of the above-noted circumstances.

Telephone Assistance 
In addition to the foregoing, Service Schedules may allow for us to accept Instructions in respect of some of the Services from Users by telephone. For greater certainty, we are not required to verify the identity of any User or the bona fides, correctness or validity of Transactions. We may rely on any such telephone Instructions of the User or purporting to be given by or on behalf of you and we may treat such Instructions as fully authorized by you in writing and such Instructions shall be binding upon you. We may in our sole discretion, decline to act for any reason on Instructions given by telephone including, but not limited to, unclear or suspicious Instructions or unsatisfactory identity verification. We will not be liable for any delay, failure, or refusal to act in any circumstance.

Electronic Communications
You agree that any electronic communications between you and us will be given the same legal effect as written and signed paper communication. You further agree that all electronic copies of communications are valid and that you will not contest the validity of any electronic copies of communications exchanged between you and us in relation to the Services. We shall be entitled to retain and store records, documentation and information respecting the Services in any manner that it determines in its sole discretion.

Part N: Changes To Agreement Or Services And Notices

Changes to Agreement
Other than as required by law, we may change this Agreement (or any Service Schedule) by giving you notice of the change; and notice may be given before or after the change takes effect. If notice is given before the change takes effect, you agree and consent to the change upon the use of NEXT by CWB™ or of any the Services after the date of the change. If notice is given after the change takes effect, use after the date of the notice constitutes a consent and agreement to such change

Modification of Services
We may add, discontinue, or modify any part or feature of the Services or NEXT by CWB™ at any time in our sole discretion. We may, but are not obligated unless required by applicable law, notify you of such change. 

Termination of Agreement
This Agreement may be terminated at any time by either party by giving thirty (30) calendar days' notice, unless the parties are exercising their rights to terminate an Account Agreement (and close accounts) as outlined in the Account Agreement, in which case, the termination provisions outlined therein shall prevail. We will not be liable for any Damages (as defined herein) or inconvenience that results from the withdrawal of your or your Users’ access to  NEXT by CWB™.

Termination Without Notice
Notwithstanding the preceding section, we may, immediately terminate this Agreement without notice if you:

a) become insolvent or bankrupt, or a petition in bankruptcy is filed, or any (or any substantial portion of the) of your assets are seized or otherwise attached pursuant to legal processes or other means; or any step or proceeding is taken by or against you under or in respect of, any bankruptcy, insolvency or other similar law affecting creditors' rights against you; 

b) become subject to proceedings for the dissolution, liquidation or winding up of its affairs; 

c) give notice of your intention to cease to carry on business; 

d) conduct or participate in a fraudulent, inappropriate or suspicious transaction using the Services; 

e) fail to make any payment when due under this Agreement or under any other CWB agreement; 

f) have, in our sole opinion, a material adverse change in its financial condition; 

g) receive one or more Canada Revenue Agency Requirements to Pay, Canada Revenue Agency deemed trusts, judgments, garnishments, third party demands or orders are rendered against you for payment of money and any such judgments, garnishments, third party demands or orders remain unpaid and in effect for more than five (5) Business Days or would, in our opinion, have a material adverse effect; 

h) are in default or breach of any of the provisions of this Agreement, any Service Schedule or any other agreement between us and you; 

i) if any representation, warranty or agreement made by you in any agreement with us is breached by you or any certificate or statement of fact made by you to us or any other communication by you to us is found to have been incorrect or misleading on or as of the date made; or

j) if any provision of any agreement with us in relation to the Accounts or Service considered material by us is held by a court of competent jurisdiction to be unenforceable or if you allege that any such provision is unenforceable, (hereinafter collectively, a "Termination Event").

Upon or during a Termination Event, we may, in our sole option, immediately terminate all or part of this Agreement without notice of further action. We may, if so choose, continue to provide you with any one or more Services or with access to NEXT by CWB™ but, subject to applicable law, we shall have the option of revising any fees or charges due without prior notice to you. Such continuation of Services shall not constitute a waiver of any of our rights under the CWB agreements or otherwise. 

Acceleration 
Upon any termination hereunder (whether pursuant to a Termination Event or otherwise), all debt of you to us arising from this Agreement, any applicable Service Schedule, any implementation form or other debt (including debt not yet incurred or not yet processed) and all accrued service charges, fees and costs and all accrued interest thereon must be immediately paid by you to us. 

Notices
Any notice that is required to be given by us under this Agreement may be given to you by: 

a) a secure message posted on NEXT by CWB™;

b) a message posted on any of our websites;

c) sent to your mailing address or facsimile last shown on our records; or 

d) delivered in person to your place of business last shown on our records.

Any notice required to be given by you under this Agreement may be given to us by you provided it is in writing and conforms to authentication requirements; and such notice will be deemed to be effectively given if delivered personally (including delivery by courier), transmitted by facsimile to our banking centre where your Accounts are held or emailed to your relationship manager.

Any notice delivered personally will be deemed to have been given and received on the day it is delivered at such address provided such day is a Business Day (or if such day is not a Business Day, on the next Business Day). Any notice mailed to a party will be deemed to have been given and received on the third (3") Business Day following the date of its mailing provided that during any period of mail service disruption notice will be delivered personally or transmitted by facsimile. Any notice transmitted by facsimile to a party will be deemed given and received on the first (1") Business Day following the date of transmission.

Part O: Fees And Charges

Pricing Arrangements
Fees and charges for the Services will be in one or more pricing arrangements, fee tables or schedules containing the pricing for your use of  NEXT by CWB™ and the Services (the “Pricing Arrangements”). The fees and charges for the Services are in addition to any other service fees or other charges that may apply to an Account. We may amend the Pricing Arrangement or other fees and charges payable for the Services at any time in our sole discretion. We will provide notice of such pricing or fee change(s) to you by posting such change(s) or amendment(s) on our website, by secure message on NEXT by CWB™, or by delivering (electronically, by mail or personally) an updated Pricing Schedule. By using any of the Services after notice of the pricing or fee change is provided, you will be deemed to have accepted the change.

Fees
You agree to pay to us when due and as may be set out in any Pricing Arrangement, Service Schedule, CWB Agreements or other documents all amounts payable to us in connection with NEXT by CWB™ and the Services including all fees, charges, interest, and applicable tax.

Out of Pocket Expenses
You further agree to pay any out-of-pocket or other expenses we incur as a result of your request or while providing any Service to you. These expenses include communication charges, transmission charges and transportation, training costs or delivery charges incurred by us.

Authority to Withdraw Fees
You will pay the specified fees to us for the Services. You authorize us but we are not obligated to debit any Account for any amounts due and owing by you to us including any fee or other amount payable or owing under this Agreement or owing in connection with any of the Services and including any amounts that may be owing as a result of termination of this Agreement or any Service Schedule.

Interest on Overdue Amounts
You will be liable to us for all amounts due and owing and/ or debited under this Agreement or in connection with any of the Services and agree that you will pay on demand any overdraft created from time to time in any Account resulting therefrom. You will also pay interest on the amount of all such overdrafts and on charges, fees and other amounts owing by you to us and not paid when due at the rate then applicable to overdrafts as established by separate agreement with us. If no such rate has been established, the highest rate then applicable to overdrafts from us to its customers will apply. If no rate or rates with respect to overdrafts have been established, you will pay interest on overdrafts at the applicable rate set out in the Rate Bulletin in effect from time to time and published by us at our banking centres. All interest will be calculated and payable monthly, not in advance, both before and after demand, default, and judgment.

Taxes
You agree to pay to us, upon demand, all sales, and other taxes however designated or levied that are paid or payable by us based upon the Services.

Insufficient Funds
Notwithstanding anything contained in this Agreement or in any Service Schedule, in no circumstances shall we be under any obligation to act and may decline to act on any Instructions or directions from you in respect of any Service if the effect of such Instruction or direction would be to cause any Account to be overdrawn in any unauthorized amount.

Part P: Limitation Of Liability & Indemnity

Limitation of Liability
Notwithstanding any other provision hereof or any other document or agreement between us and you, neither we nor any of our Service Providers will have any liability in tort, contract or otherwise for any loss, damage or claim, judgment, cost or expense (collectively, "Damages") that you assert or sustain as a result of your use of the Services except for direct Damages attributable to our gross negligence or willful misconduct arising directly from the performance by us of our obligations under this Agreement and we will not be liable for any other direct damages. For greater certainty, this limitation of liability extends to any Damages that you may suffer as a result of us or a Service Provider acting or refusing to act on any Instruction, communication, order, entry or email received by us from you as well as any loss of data regardless of form or from any item disclosed or omitted to be disclosed on any E-statement received through NEXT by CWB™. Without in any way limiting the generality of the foregoing, neither we nor any officer, director or employee of ours is bound to see to the execution of any trust, whether express, implied or constructive, to which the funds in any Account may be subject. 

Under no circumstances will we or any Service Provider be liable to you or any third party for any other Damages including any special, indirect, punitive, incidental or consequential Damages (including, but not limited to, lost business, profits or revenue) whether or not we are advised of the possibility of such loss or damage with respect to any such Damages including, without limitation, Damages in respect of any of the following:

a) any operation or operational failure, delay, NEXT by CWB™ or the Services unavailability including any hardware or software system failure or transmission and/ or communication system failure (regardless of cause);

b) any non-payment, late or improper payment resulting from insufficient funds, credit or other limits on your Accounts, inaccurate, incomplete or unauthorized Instructions or information received by us; 

c) any non-receipt or delayed receipt or receipt with errors or corrupted data or receipt in a format not acceptable to us or the Service Providers of information or data required to perform any obligation of us or any Service to be provided by us; 

d) we, in our discretion, declining to act upon any Instructions or information provided to it in accordance with this Agreement;

e) the failure or error of any other financial institutions, third party networks, communications providers, utility and their agents or any other similar third parties; 

f) mistakes, errors or omissions made by you or your Users in relation to their use of NEXT by CWB™ or any of the Services or for the fraudulent or unauthorized use of NEXT by CWB™ or the Services; and 

g) the circumstances outlined in this Agreement which we have indicated it will not be liable or responsible for or that you are responsible. 

Indemnity
You will indemnify us and our officers, directors, employees, representatives, agents, Service Providers and any third party against all claims, proceedings, Damages, costs (including legal fees and disbursements on a solicitor and its own client, full indemnity basis), expenses and liabilities (collectively, "Claims") directly or indirectly incurred by or taken against any of them which directly or indirectly, without limitation, are the result of:

a) your use of  NEXT by CWB™ and the Services;

b) your (or any User's) breach of the terms and conditions of this Agreement; 

c) us acting or deciding to act upon any Instruction or information given to us in accordance with this Agreement; 

d) any Termination Event (as defined above); 

e) any willful misconduct or wrongful, fraudulent or negligent act or omission by you, or your Users or other representatives, or any breach by you or your Users or other representatives of any agreement or other legal obligation to which you or your Users or its other representatives are subject; 

f) any willful misconduct or wrongful, fraudulent or negligent act or omission of any third party where you or your Users voluntarily waive the use of or improperly uses the fraud protection and/ or security mechanism offered by us; 
g) any misrepresentation or inaccurate statement by or breach of any warranty by you, your Users or your other representatives in any CWB agreements or in any other communication or agreement (written or oral) between you, Users or other representatives and us; 

h) the enforcement by us of any Service Schedules or any CWB Agreements or any provision hereof or thereof except to the extent such Claims are caused by the gross negligence or willful misconduct of us; and 

i) providing any Services to you in accordance with our obligations under the CWB agreements or your use of the Services or your breach of the terms and conditions of this Agreement, any of the Service Schedules or any other CWB agreement.

Part Q: Representations

No Representations or Warranties
Except as expressly provided in this Agreement or in the Service Schedule, we make no representations or warranties, either express or implied, of any kind with respect to NEXT by CWB™ or any Services  or  our  performance of our obligations under this Agreement or under any Service  Schedule  including, without limitation, the implied conditions or warranties of merchantability and fitness for  a particular  purpose including any representations or  warranties arising  by operation of law  or from a course  of  dealing or  trade usage. No descriptions or specifications whether or not incorporated into any Service Schedules form representations or warranties of any kind. Without in any way limiting the generality of the foregoing, neither us nor any of our directors, officers or employees is bound to see the execution of any trust, whether express, implied or constructive, to which you or the funds may be subject.

Representations and Warranties by Business
You hereby represent and warrant that:

a) this Agreement has been authorized by all necessary corporate or other organizational actions and there are no provisions in the Articles of Incorporation, Memorandum of Association or in any of your by-laws or resolutions or in any partnership agreement, joint venture agreement, unanimous shareholders agreement, trust instrument or in any other agreement that in any way limits or restricts your power or the powers of the directors or of any persons authorized by the directors to utilize any of the Services or to enter into any of the CWB agreements; 

b) the person(s) signing this Agreement for you are authorized to do so. At our request, you will furnish manually certified resolutions (or similar proof) of authority to execute this Agreement; 

c) all information provided by you to us in connection with the Services whether under this Agreement or otherwise is complete, accurate and up to date and does not fail to disclose information that we may require to provide any of the Services and you shall notify us promptly in the event any relevant information changes; 

d) if you are a corporate entity, you are duly formed, organized and existing in its jurisdiction of incorporation, duly registered in any of the jurisdictions in which you operate and are in conformity and compliance with the laws that govern you and your business activities; 

e) if you are a partnership, you have been formed, exist and are registered as required under the laws of your jurisdiction of formation; 

f) if you are or represent a trust, the trust has been constituted under the laws of the Province of Alberta and has not been terminated; 

g) you are fully and properly authorized to execute this Agreement and are further authorized and able to perform the obligations and transactions described in this Agreement, any Service Schedule and in any other CWB Agreement; and 

h) execution of this Agreement and performance of your obligations under this Agreement and each applicable Service Schedule does not violate any applicable statute, regulation or bylaw or result in any violation of any applicable statute, regulation or bylaw.

Binding Obligation
This Agreement including applicable Service Schedules and all other documents and agreements entered into by you in favour of us are legal, valid and binding obligations enforceable against you in accordance with their respective terms except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization and other laws affecting the rights of creditors and others generally and by principles of equity. 

Compliance With Laws and Regulations
You and we will conduct our activities under this Agreement, under the Service Schedules and under all other CWB agreements in compliance with all applicable laws, statutes, rules, regulations, orders, treaties, and guidelines, including anti-money laundering and privacy legislation (both provincial and federal).

Part R: Other

Records
Our records as to each use of Services and the Transactions made on the Account(s) shall be considered correct unless established to the contrary in accordance with the time limits for such corrections as outlined in the Account Agreement(s). All documentation, records and information relating to the Services will be maintained and stored by us in such form and manner as it determines in its sole discretion, and we are not responsible for retaining originals of any documents or instruments. 

Prohibited Use and Compliance with Laws
You agree that you will, at all times, comply with any applicable laws or clearing rules in respect of NEXT by CWB™ or any Services. You further agree that you will not, at any time, use NEXT by CWB™ or any of the Services for any illegal, fraudulent, or defamatory activity or purpose and that you will not take any actions or fail to take appropriate actions that could reasonably or will undermine the security or integrity of the NEXT by CWB™ platform or any Service.

Limits
We may set one or more limits in our sole discretion and such limits are subject to change without notice. Such limits may include:

a) the amount that may be transferred between accounts;

b) the number of bill payments that can be made in one day; or 

c) the maximum amount for each bill payment.

Not a Substitute for Other Agreements
This Agreement is in addition to and not in substitution for any other agreement between us and you with respect to the operation of any Account(s) and with respect to the Services. 

Availability of Services
Availability of the Services depends on telecommunication lines, computer hardware and software, and other equipment belonging to you, us, and third parties. You agree we will not be liable for any loss, damage (direct, indirect or consequential), delay or inconvenience whatsoever caused by, or arising from, the provision of, or failure to provide, the Services or the malfunction or failure to operate any software or equipment for any reason whatsoever, including when the Services are unavailable due to maintenance, repairs or upgrades to our systems. In no event will we be liable for any personal injury, or property damage or any loss of business or profit or other indirect or consequential damages whatsoever.

Varying Availability
Not all services and features may be accessible or available for all Accounts, Services or NEXT by CWB™ at any given time. 

Intellectual Property
This Agreement does not confer upon you or any of your Users the right to use works, logos and trademarks contained on NEXT by CWB™ or any Service. Unless otherwise indicated, all trademarks, logos, texts or images are our property or their respective licensor.

Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta and you agree to submit to the jurisdiction of the Courts of Alberta.

Force Majeure
We will not be liable to you or any other party in any way for delay in performance or for the non-performance of any provision of this Agreement or any Service Schedule if such delay or non-performance is directly or indirectly caused by an event or series of events beyond the control of us including, without limitation, acts of God, loss of communication systems and events such as flood, storm, fire, casualty, accident, riot, terrorism, war, labour dispute, communicable disease outbreak, public health emergency or other similar events.

Severability
If any portion of this Agreement shall for any reason be declared or deemed invalid or unenforceable, the validity of the remaining portions shall not be affected and shall remain in full force and effect.

Headings
Any heading contained in this Agreement is added for convenience only and does not change the meaning of any provision in this Agreement.

Assignment
We may assign our rights and obligations under this Agreement or under any Service Schedule at any time to a third party. If we choose to do so, we may disclose information about you and the Services to anyone to whom we assign our rights to provided they agree to maintain confidentiality in a manner similar to us. You may not assign any rights and obligations under this Agreement or under any Service Schedule without our prior written consent.

Binding
This Agreement and any Service Schedule will benefit and bind our and your respective successors and permitted assigns.

Counterparts
This Agreement may be executed and delivered by the parties in one or more counterparts each of which shall be an original and each of which may be delivered by facsimile, e-mail or other functionally equivalent electronic means of transmission and those counterparts shall together constitute one and the same instrument but the party delivering such facsimile or other electronic copy shall deliver an original of this Agreement as soon as reasonably possible after delivery of the facsimile or other electronic copy.

Further Assurances
You shall forthwith, from time to time upon our request, make and execute all such additional documents, acts, matters and things as may be required by us in our reasonable discretion to give effect to the provisions of this Agreement and any such Service Schedules. This may include you providing certified resolutions (or similar proof) of authority to execute and consummate this Agreement and any Service Schedules and any of our or third-party licenses or sublicenses that may be required in connection with certain Services.

Payment System Rules
You understand that in carrying out any of the Services, we will be subject to the requirements of the rules, guidelines, requirements, and standards of various payment systems ("Standards"), including Payments Canada, and accordingly we may be unable to accept or process instruments or Instructions that do not comply with the Standards.

Entire Agreement
The CWB agreements form the entire agreement between you and us pertaining to the Services. This Agreement does not affect any rights that we may have in respect of any of the Accounts. There are no conditions, warranties, representations or other agreements between us and you in connection with the Services (whether oral or written, express or implied, statutory, or otherwise).

Canadian Western Bank Business Wire Services

Schedule to the Cash Management Digital Services Agreement

1. Schedule to Cash Management Digital Services Agreement.

This Canadian Western Bank Business Wire Services Schedule (the “Services Schedule [Wires]”) forms part of the Cash Management Digital Services Agreement (the “Agreement”) between us and you. Any terms contained herein which are capitalized but not defined shall be ascribed the meaning given to them in the Agreement or (the “Account Agreement”).

2. Definitions.
Approve or Approval means the final approval by you of the Wire information inputted.

Beneficiary Account means the beneficiary account to which a wire is directed.

CWB Online Wires Platform is the online system that may be used by you or any User to directly access the Wire Services through a Device.

Wire Instructions means the instructions, authorizations or other approvals provided by you and relating to sending or receiving a Wire.

Originating Account means the Accounts held with us which are set up for CWB to debit Wire amounts.

Release means the release of a Wire into any one or more inter-bank/financial institution networks, the beneficiary’s financial institution, its clearing agent or our foreign correspondent for processing and funding into the Beneficiary Account.

Wire means an electronic message transmitted in real time through one or more inter-bank/financial institution computer networks (such as but not limited to SWIFT or the Large Value Transfer System) from an Originating Account to a Beneficiary Account.

Wire Services means the payment service which enables you, through the CWB Online Wires Platform, to electronically send funds from an Originating Account to a Beneficiary Account.

3. Wire Services and CWB Online Wires Platform are provided by Third Party Service Provider(s). 
You understand that the Wire Services and the CWB Online Wires Platform are provided by third party Service Providers, not us, and are made available to you by being linked or directed to third party websites of Service Providers. You acknowledge that the use of such third party Service Provider websites is subject to the terms and conditions of use and the privacy policy of such websites. 
We make no warranties or conditions (express or implied) concerning the websites of Service Providers or any product or services offered thereon and is not responsible for such websites or any acts or omissions of any Service Provider in providing the Wire Services or the CWB Online Wires Platform from such websites. You acknowledge that it assumes all risks associated in accessing or using the Wire Services and the CWB Online Wires Platform, and any dispute that relates to the Wire Services and the CWB Online Wires Platform is strictly between you and the applicable third party Service Provider.

4. Authority to Debit Accounts.
Only Users who have been properly designated by you as authorized to send and Approve Wire Instructions, and which have been properly identified to our satisfaction, may request and Approve Wire Instructions through the CWB Online Wires Platform. You are responsible for any unauthorized access of the CWB Online Wires Platform and use of the Wire Services. We will not verify the authority of any person sending Wire Instructions or Approvals, nor will we be responsible for any delay or failure to receive Wire Instructions.

5. Sufficient Funds in the Account.
You will ensure that the Originating Account has sufficient funds or available facilities to adequately fund the amount of a Wire. In the event that there are insufficient funds to fully fund the Wire plus any applicable fees when the Wire is scheduled for Release, you acknowledge that we are not obligated to Release the Wire transaction.

6. Wire Information and Responsibility for Wires.
Wires may be requested by inputting the Beneficiary Account details and other required information into the CWB Online Wires Platform. If applicable, you may also create templates detailing beneficiary information into the CWB Online Wires Platform for Wire payments that you anticipate will occur on a repeating basis.

You are responsible for verifying the correctness of any information provided, including the Beneficiary Account information and payee information, and if necessary, updating any templates you have created to properly route a Wire into a Beneficiary Account.

We and/or any Service Providers will, subject to this Service Schedule [Wires], act on and Release Wire Instructions once Approved. You acknowledge that we, Service Providers and any other financial institution involved in sending a Wire will not confirm or verify the completeness or correctness of the Wire Instructions or Approvals provided by a Business in respect of a Wire. In particular, we, Service Providers and any other financial institutions will not confirm whether the routing numbers provided correspond to the Wire beneficiary or the beneficiary’s financial institution, or whether the Beneficiary Account belongs to the beneficiary. Only the account number, identification numbers or codes provided will be used by us or any other financial institution to route the Wire to the Beneficiary Account.

7. Foreign Exchange Transactions
Wires may be denominated in: 

a) Canadian dollars; 

b) U.S. dollars; or 

c) any one of a number of other foreign currencies specified on the CWB Online Wires Platform from time to time. The applicable exchange rate will be displayed on the CWB Online Wires Platform. You acknowledge that it is responsible for defining whether a User may use Foreign Exchange Transactions and the limit on the dollar value of such transactions.

8. Wire Payments
You acknowledge and agree that:

a) We and/or any Service Providers will, subject to this Service Schedule [Wires], act on and Release Wire Instructions on a best effort basis and do not guarantee when or if a Wire will be credited to a Beneficiary Account. If a Wire cannot to be completed (except for Wires that are not completed due to (i) the failure or delay of the beneficiary’s financial institution to credit the beneficiary’s account with the Wire proceeds or (ii) the lawful seizure or holding of the payment by us or any third party), we will promptly refund the Wire transaction less applicable fees to you in the base currency of the original Wire payment. If the refund involves foreign currency exchange, CWB shall process the exchange at the rate in effect when the refund is processed;

b) Wires are not processed immediately and that the time period for processing depends on a number of factors including, without limitation, when the Wire is initiated, the processes of Service Providers effecting the payment, restrictions in clearing systems and the processes of the financial institution receiving the payment;

c) Wires may be delayed or stopped due to compliance with Canadian or international anti-money laundering and anti-terrorist financing legislation or due to other applicable laws. Where the Wire is delayed, we cannot guarantee that the funds will be returned to you as compliance with these laws may require the funds be delivered over to a Canadian or foreign governmental authority;

d) We will not be liable for any cost, expense, loss, damage or inconvenience of any nature or kind whatsoever, arising as a result of (i) a delay in the processing of a Wire, or (2) the failure or delay of the beneficiary’s financial institution to credit the recipient’s account with the Wire proceeds, or (3) the lawful seizure or holding of the payment by us or any third party, including seizure or holding in compliance with Canadian or foreign anti-money laundering and antiterrorist financing legislation.

9. Indemnity
You shall indemnify, defend and hold us harmless, our directors, officers, employees, agents, independent contractors, representatives, Service Providers, and any third parties from and against all claims, proceedings, damages, costs (including legal fees and disbursements on a solicitor and client basis), expenses, liabilities and losses (including amounts paid in settlement) whatsoever incurred or paid (a) in connection with or arising out of any misuse of the Wire Services or the CWB Online Wires Platform by you, (b) as a direct or indirect result of the negligence, wrongful act, or omission by you, (c) any claim brought against us by a third party, based upon the use of the Wire Services or the CWB Online Wires Platform by you, (d) as a result of us making available to you the Wire Services or the CWB Online Wires Platform, which includes us and/or any Service Provider acting or declining to act upon any Wire Instructions provided in accordance with this Service Schedule [Wires]. The indemnity outlined above is in addition to and not a substitute for any other indemnities we grant by you.

10. Agency
You appoint us as agent for the purposes of sending Wires. Accordingly, any steps we take on your behalf for sending a Wire will have the same effect as if made by you directly and will bind you in the same manner as if such actions or instructions given by you and duly signed by authorized signatory on your Accounts. You acknowledge that we may use the systems, networks, associations, financial institutions and other third parties for sending Wires that we determine in our sole discretion.

11. Correspondent Institutions
You acknowledge that in connection with any Approved Wire we send in accordance with this Service Schedule [Wires], we may utilize the services of other financial institutions (“Correspondent Institutions”) to act as agent on behalf of you. We shall not be liable for any act or omission of any Correspondent Institution in the performance of the Wire Services.

12. Compliance with Laws and Internal Policy
We have the right to refrain from Releasing or otherwise sending a Wire that may contravene:
a. any law or regulation applicable to CWB, including but not limited to anti-money laundering or terrorist financing laws or regulations; or 
b. any of our internal risk management or other policies. We may also be prohibited (either by law, regulation or internal business rule) from Releasing or otherwise sending Wires to certain countries, territories, or locations. You also acknowledge that in certain circumstances a Correspondent Institution or other third party may be unable to process a Wire Instruction for similar reasons.

 Canadian Western Bank Corporate Remote Deposit Capture Services

Schedule to the Cash Management Digital Services Agreement

1 Application/Interpretation

1.1 Application: This Canadian Western Bank Corporate Remote Deposit Capture Services Schedule (the “Services Schedule [RDC]”) forms part of the Cash Management Digital Services Agreement (the “Agreement”) between us and you. This Services Schedule [RDC] governs your use of the remote deposit capture service operated by Central 1 Credit Union (“Central 1”) and made available by us to you (the “cRDC Service”). Any terms contained herein which are capitalized but not defined shall be ascribed the meaning given to them in the Agreement or the Business Account Application and Agreement (the “Account Agreement”).

1.2 Other Agreements: The parties agree that the terms and conditions of this Services Schedule [RDC] are in addition to, and supplement, all other agreements between you and us regarding our products and services, your accounts and related matters (collectively the “Other Agreements”). If there is any conflict or inconsistency between this Services Schedule [RDC] and the Other Agreements, then this Services Schedule [RDC] will take priority and govern with respect to the cRDC Service and related matters.

1.3 Central 1: The cRDC Service uses technologies and services provided by Central 1 and/or other Service Providers and are made available to you by us. The terms and conditions contained in this Services Schedule [RDC] are for our benefit and the benefit of Central 1 and any other Service Providers and may be enforced by any such party for its own benefit.

1.4 Definitions: The following capitalized terms used in this Services Schedule [RDC] have the following meanings:

Authorized User means an individual who is authorized by you to use the cRDC Service on behalf of you.

Captured Images/Data means collectively: 

a. images of the front and back of a Payment Item; and 
b. information regarding a Payment Item required by the cRDC Service.

cRDC Rules means the rules and requirements (including restrictions regarding Payment Items, the manner in which a Payment Item must be endorsed and marked by you, and the retention period during which you must securely store an original paper Payment Item after Captured Images/Data for the Payment Item have been transmitted using the cRDC Service) that govern use of the cRDC Service, as we establish and revise from time to time, as set forth in the Documentation.

cRDC Software means proprietary computer software required to access and use the cRDC Service.

cRDC System means the infrastructure, technologies and services used by us and Service Providers to provide the cRDC Service.
the Business System means the technology infrastructure and services (including Devices, peripherals, Internet connectivity, and data storage devices) used by, or on behalf of, you to access and use the cRDC Service.

Documentation means the electronic and paper-based documentation regarding the cRDC Service we publish and revise from time to time.

Payment Item means a specific kind of paper cheque or other item that is eligible for the cRDC Service as set forth in the cRDC Rules.

Service Provider means Central 1 and any other third party service provider we engage to assist in the operation of the cRDC Service.

1.5 Principles of Construction: In this Schedule: 

a) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Services Schedule [RDC];

b) reference to a day, week, month or year, means a calendar day, week, month or year, unless expressly stated otherwise; 

c) “person” includes an individual (a natural person), corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; 

d) “including” or “includes” means including or includes, as applicable, without limitation or restriction; 

e) “discretion” means a person’s sole, absolute and unfettered discretion; and 

f) “law” includes common law, equity, statutes and regulations in force and as amended from time to time, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law and its regulations in force from time to time, as applicable.

2 The cRDC Service

2.1 General: The cRDC Service enables you to deliver Payment Items to CWB for deposit to your designated account at CWB by creating and transmitting Captured Images/Data for the Payment Item to us or a Service Provider. Subject to the provisions of this Services Schedule [RDC], effective electronic delivery of Captured Images/Data for a Payment Item to us or a Service Provider will have the same effect as a physical delivery of the original paper Payment Item to us for deposit to your applicable account.

2.2 Rules/Procedure:

(a) cRDC Rules: You acknowledge that use of the cRDC Service is subject to the cRDC Rules, including restrictions and requirements regarding Payment Items. You will comply with, and will ensure that each Authorized User complies with, all of the cRDC Rules. For greater certainty, you will not use the cRDC Service to create and transmit images and data for an item that is not eligible to be a Payment Item.

(b) Procedure: You will ensure that Captured Images/Data:

i. are created by Authorized Users using a Device that is compatible with the cRDC Service as specified in the Documentation; 
ii. are created by Authorized Users using the cRDC Software specified in the Documentation; (iii) are transmitted to the cRDC System in accordance with the processes and procedures specified in the Documentation; and (iv) comply with the cRDC Rules. You acknowledge that the cRDC System may reject Captured Images/Data that fail to comply with applicable requirements.

2.3 Agency: Solely with respect to your use of the cRDC Service, you and Authorized Users act as agents for and on behalf of CWB when they create and transmit Captured Images/Data for Payment Items using the cRDC Service.

2.4 Delivery: 

(a) General: Captured Images/Data for a Payment Item will be deemed not electronically delivered to by you unless and until we (or a Service Provider) actually receive and process the Captured Images/Data. You are solely responsible and liable for reviewing the data provided or made available by or on our behalf regarding the receipt and processing of Captured Images/Data for Payment Items to verify that we (or a Service Provider) have received and processed Captured Images/Data for each Payment Item.

(b) Acknowledgement: You acknowledge that acceptance of Captured Images/Data for a Payment Item by the cRDC System does not mean that the Payment Item has been cleared or deposited, and Captured Images/Data for a Payment Item that are reported as accepted by the cRDC System might not be cleared or deposited. Nothing in this Services Schedule [RDC] affects your obligations under this Services Schedule [RDC] or the Other Agreements to promptly review account statements to verify deposits of Payment Items and to promptly report discrepancies to CWB.

2.5 No Risk Assessment: For greater certainty and notwithstanding any other provision of this Services Schedule [RDC] or any Other Agreement, the cRDC Service does not include: 

a) an assessment of the validity or legality of a Payment Item; 

b) an assurance that the delivery of Captured Images/Data for a Payment Item will result in a deposit of the Payment Item; or 

c) any fraud risk assessment.

2.6 Reservation: You acknowledge that we in our discretion may refuse to process Captured Images/Data for a Payment Item and may require that you deliver the original paper Payment Item to us.

2.7 Retention of Payment Items:

(a) General: you acknowledge that, notwithstanding the electronic delivery of Captured Images/Data for a Payment Item in accordance with this Services Schedule [RDC], access to and use of the original paper Payment Item might be required for various reasons, including: 

(i) to resolve claims or disputes regarding the Payment Item; 
(ii) to detect, investigate or prevent fraud; and 
(iii) to create another set of Captured Images/Data for the Payment Item if the original Captured Images/Data are defective or deficient for any reason.

(b) Retention/Destruction: After Captured Images/Data for a Payment Item have been transmitted by or on your behalf using the cRDC Service, you will:

i) mark the original paper Payment as deposited, as required by the cRDC Rules; and 
ii) store the original paper Payment Item in a safe and secure manner (including any specific requirements specified in the cRDC Rules) for the applicable retention period specified in the cRDC Rules, so that the original paper Payment Item and all information (including personal information and financial information) contained in the original Payment Item are protected against unauthorized access, use and disclosure (including the original Payment Item being presented, physically or by remote technologies, for deposit to us or any other financial institution) and the original paper Payment Item is available if required by us. Unless we have expressly requested otherwise, you will securely destroy each original paper Payment Item immediately after the applicable retention period expires.

(c) Re-Delivery: Upon our request, you will:

i) promptly physically deliver an original paper Payment Item to us; or 
ii) use the cRDC Service to promptly create and transmit to us another set of Captured Images/Data for a Payment Item. You will not be in breach of this section 2.7
iii) if you are not able to comply with this section 2.7(c) because you destroyed the original paper Payment Item in order to comply with applicable law (including the Rules) and in accordance with section 2.7(b).

2.8 Licenses and Consents:

(a) Captured Images/Data: You hereby grant and agree to grant us and each Service Provider a non-exclusive, irrevocable, perpetual, royalty-free, world-wide right and license to Use, and authorize other persons to Use, Captured Images/Data for Payment Items for the purpose of providing the cRDC Service and clearing, settling and depositing Payment Items. In this Services Schedule [RDC], “Use” means any and all forms and methods of use, including copy, reproduce, load, install, access, configure, reformat, modify, adapt, alter, edit, change, delete, enhance, translate, host, store, backup, archive, combine with and incorporate into other works, create derivate works from, print to paper format, and display, distribute, transmit and communicate.

(b) Personal Information: Without limiting the generality of any other provision of this Services Schedule [RDC], you will obtain all consents (express or implied), authorizations and rights required under applicable law to permit us and each Service Provider to lawfully access, collect, use, disclose, retain and dispose of personally identifiable information included in Captured Images/Data for the purpose of providing the cRDC Service.

(c) Legal Disclosures: For greater certainty, and without limiting the generality of any other provision of this Services Schedule [RDC], you acknowledge and agree that we and each Service Provider may disclose Captured Images/Data and related personal information to the extent required by applicable law (including the Rules) or an order of a court or governmental body of competent jurisdiction and authority, or as requested by the Canadian Payments Association.

3 Authorized Users

3.1 General: You will not authorize or permit any person to use the cRDC Service on behalf of you except for one or more Authorized Users who have been expressly approved by us in accordance with our specified procedure. You acknowledge and agree that an Authorized User’s use of the cRDC Service presents risks of substantial loss and damage, including loss and damage resulting from fraud. You will exercise due care when determining whether to designate a person to be an Authorized User. You will monitor and review each Authorized User’s use of the cRDC Service.

3.2 CWB Approval: We in our discretion will determine whether or not to:

a) approve a person to be an Authorized User;

b) establish and revise from time to time limits and restrictions regarding an Authorized User’s use of the cRDC Service; and

c) suspend or cancel a person’s status as an Authorized User.

3.3 Responsibility/Liability: You are fully responsible and liable for all acts and omissions (including all use or misuse of the cRDC Service) by each Authorized User.

3.4 Credentials: Each Authorized User will be required to use a unique user ID and password or other unique identifier (collectively “Credentials”) to access and use the cRDC Service. You will: (a) ensure that each Authorized User keeps the Authorized User’s Credentials secure and confidential at all times, does not permit any other person to use the Authorized User’s Credentials, and promptly notifies you if the Authorized User knows or suspects that the Authorized User’s Credentials have become known to or used by any other person; and (b) immediately notify us if you discover or suspects any unauthorized disclosure or use of an Authorized User’s Credentials.

4 Other Matters

4.1 Legal Compliance:

(a) General: You will comply with, and will ensure that all Authorized Users comply with, all applicable local, state, provincial, national, and foreign laws (including laws regarding bills of exchange, payment processing, money laundering, anti-terrorist financing, personal information protection, data privacy, consumer protection, business practices, advertising and commercial electronic messages) applicable to the use of the cRDC Service.

(b) Rules/Anti-Money Laundering: Without limiting the generality of section 4.1(a), you will comply with, and will ensure that all Authorized Users comply with, the Canadian Payments Act and the Rules (including security standards and requirements for the timely voiding and destruction of original paper Payment Items) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (including ensuring that all required information and documentation is collected and maintained in a timely manner) in connection with the use of the cRDC Service.

(c) Consequences: You are solely responsible and liable for all sanctions, penalties and costs imposed as a result of any violation of any applicable law (including the Canadian Payments Act, the Rules and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act) by you or an Authorized User in connection with the use of the cRDC Service by or on behalf of you, and you will defend, indemnify and hold us and each Service Provider harmless from and against any and all losses, damages, costs, expenses (including legal fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including legal fees and expenses, settlement payments, penalties and other financial sanctions) arising from, connected with or relating to any violation of applicable law by you or an Authorized User in connection with use of the cRDC Service. 

4.2 Technical Requirements:

(a) General: You are solely responsible and liable for procuring, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including Devices), software (including cRDC Software) and services (including Internet connectivity) necessary for your use of the cRDC Service.

(b) cRDC Software License Agreements: Your access to and use of cRDC Software may be subject to license agreements and other terms and conditions (e.g. a software license agreement or an end user license agreement) imposed by the provider of the cRDC Software (collectively the “cRDC Software License Agreements”). You will use, and will ensure that each Authorized User uses, cRDC Software strictly in accordance with all applicable cRDC Software License Agreements. For greater certainty, this section 4.2(b) applies even if we facilitate or assist you with the procurement of the cRDC software.

(c) NCR Software: If and to the extent that cRDC Software is provided by NCR, then unless the cRDC Software License Agreements for the cRDC Software expressly state otherwise: 

i. the cRDC Software License Agreement for the cRDC Software includes the NCR EULA set forth in Appendix “A” to this Services Schedule [RDC];

ii. you acknowledge and agree to be bound by the NCR EULA with respect to the cRDC Software; and

iii. you will use, and will ensure that each Authorized User uses, the cRDC Software strictly in accordance with the NCR EULA.

(d) the Business System: Without limiting the generality of section 4.2(a), you are solely responsible and liable for: (i) obtaining, provisioning, creating, configuring, supporting, maintaining and protecting the Business System; (ii) ensuring that the Business System is able to effectively and securely access, communicate with and exchange appropriate data with the cRDC System; (iii) scanning for and preventing the transmission and receipt of viruses, trojan horses, worms, locks and other destructive or disruptive components to or from the cRDC System; and (iv) maintaining complete and current backup copies of all data contained in the Business System to mitigate the risk of data loss or damage as a result of the exchange of data with the cRDC System.

4.3 cRDC System: You will not:

a) access or use the cRDC System in any manner or by any means that is not purposefully made available to you, or for any purpose other than using the cRDC Service in accordance with this Services Schedule [RDC];

b) access or use the cRDC System in a way that interferes with or threatens, damages, disrupts, compromises or degrades the integrity, operation, performance or security of the cRDC System or any part of it;

c) copy, reproduce, translate, modify, enhance or create derivative works from the cRDC System or any part of it;

d) purport to license, sublicense, grant, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, commercially exploit or otherwise give or make available or permit the use of the cRDC System or its functionality or performance or any results of its use to or for the benefit of any other person, whether as a service bureau or otherwise, and whether with or without charge;

e) alter, attempt to circumvent, destroy, obscure or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures or agreements (including end user terms and conditions) on, in or in relation to the cRDC System;

f) reverse engineer or otherwise access or use the cRDC System in order to copy any ideas, features, functions or graphics of the cRDC System; or

g) permit, assist or encourage any person (including any Authorized User) to do any of the foregoing.

4.4 Proprietary Rights: You acknowledge and agree that we and any Service Providers, as the case may be, will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with the cRDC Service and the cRDC System. You will not acquire any right, title or interest in, to or associated with the cRDC Service or the cRDC System, except for the limited permission to access and use the cRDC System as expressly set forth in this Services Schedule [RDC]. All rights not expressly granted in this Services Schedule [RDC] are reserved by Service Providers and us.

4.5 Notifications: You will give prompt notice to us of any:

a) suspected or actual errors, bugs or other problems in the cRDC Service, the cRDC Software or the cRDC System of which you become aware;

b) notices received by you that might adversely affect us or any Service Provider; or 

c) any actual or reasonably suspected unauthorized use of the cRDC Service, the cRDC Software or the cRDC System of which you become aware.

5 Risks, disclaimers, liability exclusions and indemnity

5.1 Inherent risks: you acknowledge that there are risks inherent in the use of the cRDC service that may result in serious loss or damage to you and other persons, including risks that authorized users may use the cRDC service to conduct fraudulent transactions, that original paper payment items that are destroyed in accordance with applicable law will not be available for use in connection with claims, disputes or for other required purposes, that original paper payment items may be misappropriated or misused, and that credentials may become known to or used by unauthorized persons. You knowingly accept the risks inherent in the use of the cRDC service and the risks of resulting loss and damage.

5.2 General disclaimer: notwithstanding any other provision of this schedule or any other agreement, you acknowledge that: (a) the cRDC service, the cRDC system and cRDC software are provided “as is”, “as available” and “with all faults”, and without any representations, warranties, conditions or guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance (including any representations, warranties, conditions or guarantees of or relating to durability, fitness for a particular purpose, merchantability, non-infringement, performance, quality, results, suitability, timeliness or title), all of which are hereby disclaimed by us and each service provider to the fullest extent permitted by applicable law. Without limiting the foregoing, there is no representation or warranty that the operation of the cRDC service, the cRDC system or cRDC software will be continuous, uninterrupted, secure or error free, that defects or deficiencies in the cRDC service, the cRDC system or the cRDC software will be corrected, or that the cRDC service, the cRDC system or the cRDC software will be compatible or operate with any computer or device, software or services. No oral or written information or advice given by or on behalf of CWB or a service provider will create any legally binding or effective representation, warranty, condition or guarantee.

5.3 Specific disclaimers: without limiting the generality of either of sections 5.1 and 5.2, and notwithstanding any other provision of this schedule or any other agreement:

(a) Authorized user misconduct/credentials: accepts and assumes all risk of damage and loss resulting from the unauthorized or unlawful (including fraudulent) use of the cRDC service by an authorized user or the unauthorized use or disclosure of original paper payment items or credentials.

(b) Technology: you acknowledges and agree that the cRDC service may be affected by numerous factors beyond our control of CWB and the control of service providers, may not be continuous, uninterrupted or secure, and may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications, and that we and service providers are not responsible or liable for any delays, failures or other loss or damage resulting from those problems.

(c) CRDC software: We and service providers are not responsible or liable for cRDC software. Accepts and assumes all risk of damage and loss resulting from the use of cRDC software by or on behalf of you.

(d) No data storage: you acknowledge and agree that: 

i) the cRDC service is not a data storage or data back-up service; 

ii) you are solely responsible and liable for creating and maintaining proper records of all payment items and related data; and 

iii) we and service providers may permanently delete and destroy all copies of captured images/data promptly after we and service providers no longer require use of the captured images/data.

(e) System error: you acknowledge and agree that the cRDC system includes automated technologies that may result in the erroneous acceptance or rejection of captured images/data for payment items, and you assume all risk of damage and loss resulting from any of those errors.

(f) Destruction of original paper payment items: you assume all risk of damage and loss resulting from your destruction of original paper payment items.

5.4 Liability exclusion: notwithstanding any other provision of this schedule or any other agreement, and to the maximum extent permitted by applicable law:

a) in no event and under no circumstances will we or any service provider or any of their respective directors, officers, employees, agents, independent contractors and representatives be liable to you or any other person for any damage, loss or liability whatsoever arising from, connected with, or relating to the cRDC service or any related matter; and 

b) the foregoing liability exclusion is a comprehensive exclusion that applies to any and all damages, losses and liabilities of any nature and kind whatsoever and howsoever arising (including compensatory, direct and indirect loss or damage and all liabilities to third parties), under any theory (including contract, tort, strict liability or statutory liability), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by or on behalf of us, any service provider or any person for whom any of them are responsible, even if other remedies are not available or do not compensate adequately or at all for the damage, loss or liability, and even if we or a service provider have been advised of the possibility of the damage, loss or liability being incurred.

5.5 Indemnity: you will defend, indemnify and hold us and each service provider and their respective directors, officers, employees, agents, independent contractors and representatives harmless from and against any and all losses, damages, costs, expenses (including legal fees), claims, complaints, demands, actions, suits, proceedings, obligations and liabilities (including legal fees and expenses, settlement payments, penalties and other financial sanctions) arising from, connected with or relating to any of the following:

a) any breach of this schedule by you; or 

b) any wrongful act or omission by or on behalf of you or any person (including an authorized user) for whom you are responsible under this agreement or applicable law.

5.6 Allocation of risk: you acknowledge and agree that the risk allocation in this schedule is an essential part of the bargain between you and us, a controlling factor in setting the fees (if any) payable for the cRDC service, an inducement to us and each service provider to agree to provide the cRDC service to or for the benefit of you.

6 Suspension/Termination

6.1 Termination for Convenience: Either you or us may terminate your permission to use the cRDC Service for convenience effective immediately upon notice to the other party.

6.2 Suspension/Termination: We may immediately suspend your permission to use the cRDC Service without any notice or liability to you if we reasonably believes that you have breached this Services Schedule [RDC]. A Service Provider may suspend or terminate your permission to use the cRDC Service without any notice or liability to you if the Service Provider reasonably believes that you have breached this Services Schedule [RDC].

6.3 Survival: Notwithstanding any other provision of this Services Schedule [RDC] or any Other Agreement, each of sections 2.7(b), 2.7(c), 2.8, 3.3, 4.1(c), 4.2(b), 4.2(c), 4.3, 4.4, 5 and 6.3 of this Services Schedule [RDC], and all other provisions necessary to their interpretation or enforcement, will survive the termination of this Services Schedule [RDC] and will remain in full force and effect.

APPENDIX “A” TO THE MANDATORY PROVISIONS

- NCR EULA -

The software product you are about to install or use, along with any documentation or other licensed materials supplied with it (hereinafter “the Program”) is the valuable intellectual property of NCR Canada Ltd. (“NCR”), its affiliates or licensors, and is copyrighted and licensed, not sold. You may use the Program for your sole and exclusive benefit and only for your internal business purposes, only on the single processing unit of the class and model owned and operated by you, and for which it is originally licensed. Any portion of the Program merged into another program will be subject to the terms and conditions as stated forth here. You must reproduce and include any copyright notice, serial number and any other notice on any copy or portion merged into another program. You may not:

a) use, copy, modify, or distribute the Program except as provided in this Agreement;

b) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 

c) transfer, sublicense, rent, or lease the Program.

Exclusion of warranty
Except as stated in the “Limited warranty” below, the program is provided “as is” without warranty of any kind, either expressed or implied, including but not limited to the implied warranties of satisfactory quality and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you (and not NCR or its dealer or distributor or any licensor of NCR or owner of the program) assume the entire cost of all necessary servicing, repair or correction. Neither NCR nor any other party or person warrants that the functions contained in the Program will meet your requirements or that the operation of the Program will be uninterrupted or error free. You assume all responsibility for the selection of the Program to achieve your intended results, and for the installation, use and results obtained from it.

Limited warranty
NCR warrants that, when originally delivered, the media on which the Program is furnished and the reproduction of the Program on the media to be free from defects in materials and workmanship under normal use. If you notify NCR or an authorized NCR supplier of any material breach of this warranty, NCR will replace the defective media.

Limitation on damages
In no event will NCR or any other party or person be liable to you or anyone else for any damages, including lost profits, lost savings or other incidental or consequential damages arising out of this agreement or the use or inability to use the program even if NCR or the other party or person has been advised of the possibility of such damages. NCR’s aggregate liability, whether for negligence, breach of contract, misrepresentation or otherwise under or in connection with this Agreement is limited to $10 provided that no provision of this Agreement shall be taken as excluding or restricting or attempting to exclude or restrict any liability from death or personal injury arising from NCR’s negligence.

You may not export any Program without first complying with any Canadian or United States export laws and regulations. NCR shall not be required to perform this Agreement if and to the extent that such performance would be a breach of such laws and regulations.

This License Agreement will be governed by the laws of the province of Ontario.

To the extent the program includes intellectual property belonging to a party other than NCR (“third party software”) and the third-party software is provided with the third party’s license agreement, your use of such third-party software is subject to those terms and not the license and warranty terms set forth in this agreement. You are also directed to review the read-me files incorporated in the third-party software for such third-party license agreements.

Canadian Western Bank EFT Services

Schedule to the Cash Management Digital Services Agreement

This Canadian Western Bank Electronic Funds Transfer Schedule (the “Services Schedule [EFT]”) forms part of the Cash Management Digital Services Agreement (the “Agreement”) between us and you. Any terms contained herein which are capitalized but not defined shall be ascribed the meaning given to them in the Agreement or the Business Account Application and Agreement (the “Account Agreement”).

The Service   
We shall provide you with an electronic process through which we and or our service provider will transfer funds electronically in the form of direct deposits or pre-authorized debits (“PADs”) to or from your Account(s) through the electronic clearing system operated by Payments Canada.

The information required to complete each direct deposit or PAD shall be in the format specified by us.

You authorize us to debit or credit your account held with us and designated for purposes of this Services.

If a PAD is credited to us under the clearing System, we shall credit your Account in the amount credited to it. We shall be entitled to debit any such amount if such amount is debited to us under the clearing system.

If a direct deposit is charged to us through the clearing system, we shall debit your account in the amount of the direct deposit and we shall only be required to re-credit an amount if such amount is re-credited to us. If an amount re-credited is subsequently recharged to us, we shall have the right to again debit your account with the amount. 

Your Obligations in respect of direct deposits
You must:

a) provide all of the required information for each transmission;

b) provide funds in the aggregate amount of the transmission on the effective date of the transmission;

c) obtain any agreements or consents from the payee(s) to process credits to their accounts; and

d) pay us fees applicable to the service. We may revise the fees at any time upon 30 days written notice to you.

Your Obligations in respect of PADs
You warrant and guarantee to us that each of your clients (a “Payor”) on whose behalf a PAD purports to have been drawn or direction purports to have been given, will have signed and delivered to you a written authorization (the “Payor's PAD Agreement”) in a form complying with the Rules authorizing the PAD to be issued, or directed on behalf of the Payor as if it were signed by such Payor, and authorizing such direction to be acted on as though it were a written direction signed by such Payor.

You shall ensure that the Payor's PAD Agreement is signed or otherwise duly authorized by the Payor in a form that constitutes proper authority for the Processing Member to debit the Payor's designated account as may be set out in the Payor's account agreement with the Processing Member. You assume all liability for ensuring that the person(s) signing a Payor's PAD Agreement is a valid signing authority for the Payor's account.

You agree and undertake to:

a) abide by all relevant provisions of the Rules and the Canadian Payments Act as they apply to PADs, including, without limitation, the confirmation and pre-notification requirements or waiver of confirmation and pre-notification requirements, and cancellation requirements set out in the Rules; 

b) inform each Payor of the recourse, notification, and all other provisions of Rules relevant to Payors prior to issuing PADS against a Payor's account and, where possible, you will provide each Payor with a copy of the Payor's PAD Agreement signed by them;

c) obtain a Payor's PAD Agreement for each and every PAD with sporadic frequency and will either notify the Payor in advance of each and every sporadic PAD or will obtain a waiver of notification from the Payor;

d) obtain a Payor's PAD Agreement for each and every one-time PAD that you issue;

e) make available for inspection each Payor's PAD Agreement for every Payor for whom a PAD has been issued within a reasonable time, upon our or the Payor’s request;

f) accept liability for any interest claim associated with the return of each PAD for the reason that no Payor's PAD Agreement existed between you and the Payor with respect to the returned PAD;

g) accept and act on any notice of change of a Payor's payment routing information that it receives from us and that was provided to us by the Payor's Processing Member pursuant to the Rules that does not involve changing that Processing Member, and deem such notice of change to be the Payor's authorization to change its relevant payment routing information, provided that we shall be responsible to you only for the accuracy of information provided in any such notice of change that it provides to you;

h) provide a minimum of ten (10) days written notice to each Payor in advance of their next PAD, where your name has changed;

i) reimburse us or any other financial institution for payment of any claim made by a Payor, in accordance with the Rules;

j) reimburse us for any claim paid by us as a result of a “Reimbursement Claim”, as defined in the Rules, filed by a Payor or other person alleging that a PAD was not drawn in accordance with its Payor’s PAD Agreement, a Payor’s PAD Agreement was revoked, any required pre-notification was not given at least 10 calendar days before the date a related PAD was processed to the account of a Payor, a confirmation was not provided in accordance with the Rules or no Payor’s PAD Agreement existed between the person making the claim and you with respect to a particular PAD.

You must ensure that all information you provide us is true, accurate and complete.

No Agreement may be assigned by you whether directly or indirectly, by operation of law, change of control or otherwise except:

a) if you have prominently displayed an assignment clause in the Payor’s PAD Agreement or the Confirmation and you have provided to the Payor written notice of the full details of such assignment, including the identity and contact information of the assignee, or;

b) you have provided to the Payor prior written notice of the full details of such assignment, including the identity and contact information of the assignee, a minimum of ten (10) calendar days in advance of any PAD being issued in the assignee’s name.

Where a Payor instructs you to cease issuing PADs, or otherwise revokes the Payor’s PAD Agreement or an authorization to issue PADs, you shall:

i. use best efforts to cancel the PAD in the next business, billing or processing cycle;

ii. within not more than 30 calendar days from the notice, cease to issue any new PADs against that Payor, and;

iii. not issue any further PADs against the Payor without that Payor first providing you with a new Payor’s PAD Agreement, provided the Payor has made available their instructions or revocation in writing, or orally with proper authorization in accordance with the Rules.

Where the Payor and you have entered into an agreement (including a Payor’s PAD Agreement) that clearly sets out a cancelation period that does not exceed 30 calendar days, a cancelation or revocation may become effective at the end of that period.

Upon the return of a PAD for reason of “Non-Sufficient Funds” or “Funds Not Cleared”, you may re-present the PAD electronically on a one-time basis only for the same amount as the original debit and such item may only be re-presented within thirty (30) days. The re-presentment shall NOT contain interest, NSF charges or any other charges in addition to the original PAD amount.

You may terminate any Payor’s PAD Agreement in accordance with the terms of that agreement or, where the agreement does not address termination by you, by providing at least 30 calendar days written notice to the applicable Payor unless otherwise authorized by such Payor in writing or orally in accordance with the Rules. 

Where you terminate a Payor’s PAD Agreement pursuant to an authorization from the Payor in writing or orally in accordance with the Rules, you shall provide or make available a written statement specifying the date of the final PAD and the effective termination date of the Payor’s PAD Agreement within 10 calendar days of the final PAD.

You:

a) confirm that you have read and understand the definition of Commercially Reasonable Methods in Rule H1 of the Rules, and that you have such methods in place for use when entering into Payor’s PAD Agreements; and 

b) agree to use Commercially Reasonable Methods when verifying the Payor’s identity for a Payor’s PAD Agreement in accordance with the requirements of Rule H1 of the Rules.

You acknowledge receipt of the following from us: a copy of the EFT User Guide and a copy of the Rules. You also acknowledge that you fully understand your responsibilities when entering transactions into the clearing system.

Indemnity
You hereby indemnify and save us harmless and any applicable Processing Member from all costs, expenses, claims and actions directly or indirectly incurred or suffered by us or any Processing Member and from and against any claims or lawsuits brought against us or any Processing Member by reason of:

a) your failure to comply with your obligations under this Services Schedule; 

b) we or any Processing Member acting upon erroneous, inaccurate, incomplete, fraudulent or unauthorized instructions from you; 

c) damage or injury suffered or incurred by third parties, including, but not limited to, a processing financial institution, resulting from the provision by us or any applicable Processing Member of the service at your request; or 

d) the action in drawing and issuing any debit issued by us, except where the loss, costs, fees, damages, expenses, liabilities, claims, suits, or demands result from erroneous information provided or an error committed by us or any Processing Member.

Assignment
This Services Schedule may not be assigned by you, whether directly or indirectly, by operation of law, change of control or otherwise, without our prior written consent.

Limits of Liability
You acknowledge that the completion of transmissions is subject to availability of access to the electronic clearing system and is also subject to down time of the clearing system. 

We are not liable to you or any third party for any damages resulting from:

a) non-receipt of funds by payees on the dates requested, whether as a result of electronic clearing system failure, malfunction, delay, or other failure;

b) the loss of data reports, documents or other productions while not in our possession; 

c) any delay failure of performance, expense or inconvenience from causes beyond our control; or 

d) incorrect or improper payment to any person arising out of the processing of any transfer or entry under this Services Schedule,
except where loss or damage results from our gross negligence or willful misconduct. 

Our liability to you is, in any case, limited to the lesser of the actual damages incurred or the aggregate charges for the fund transmission service during the six months preceding the date of the incident causing damage. 

We are not responsible for errors resulting from incorrect data received from you.

Termination
This Services Schedule may be terminated by either party upon giving the other party 30 days written notice.

Notwithstanding the provisions of the foregoing paragraph, we may terminate this Services Schedule at any time without notice, if you breach your obligations under this Services Schedule.

Notwithstanding any such termination, the provisions of this Services Schedule and the provisions of the Rules shall continue to remain in full force and effect with respect to any PADs processed in accordance with the provisions of the Services Schedule prior to the day that the termination takes effect and until such time as all such outstanding transactions have been posted to your Account. 

Credit Risk
If deemed necessary by us in our sole discretion, a full credit analysis may be conducted on credit files and you must fall within our normal lending requirements.