CWB Commercial
Cash Management Online Services Agreement
This Cash Management Online Services Agreement (the “Agreement”) sets forth the terms and conditions that are applicable to the cash management products and online banking services described in this Agreement and made available to you by Canadian Western Bank (“CWB”). By applying for and/or using any of the products and services described herein, you agree to be bound by these terms and conditions.
1. DEFINITIONS
In this Agreement, the words:
"Access Terminal" means any device used to access any of Your Accounts, including without limitation an ATM, a computer, a portable hand-held device, or a telephone including any form of mobile telephone or Mobile Device.
"Account Agreement" means your Business Account Application and Agreement, which is the underlying account agreement between you and CWB. Your Account Agreement applies to the operation of all your bank accounts, including all the products and services made available to you which are not described in this Agreement. For clarity, this Cash Management Online Services Agreement is supplemental to and incorporates all the terms of your Account Agreement;
"Account Change" means any of the following: the appointment of a new User, the removal of a User, the establishment or modification of a User's rights, the appointment of a new Administrator or Signing Officer, the removal of an Administrator or Signing Officer, a change in the descriptive name of an Account that can be accessed through CWBdirect Business or CWBdirect Enhanced, a change in the Account to be debited with service charges, the addition or deletion of an Account that can be accessed through CWBdirect Business or CWBdirect Enhanced, or the addition or deletion of a Payment Service that may be accessed through CWBdirect Business or CWBdirect Enhanced.
"Account or Accounts” means all of your bank accounts at CWB;
"Administrator” means any person who has been authorized by you to access CWBdirect Business for the purpose of entering User or account data (also identified as the “Representative” in the CWBdirect Business Online Banking Application and as the “Administrative with Approvals” in the Business User Administration Tool);
"Authorized Contacts" is, (i) with respect to CWBdirect Business, any Administrator, User or other individuals designated by you to access CWBdirect Business and/or the Services, and (ii) with respect to CWBdirect Enhanced, any Signing Officer, Delegate or other individuals designated by you to access CWBdirect Enhanced and/or the Services;
"Authorized Signing Officer" means, with respect to each of your Accounts, any person authorized by you (or in the case of an unincorporated association, by the association) to sign Instruments or provide other orders for payments of money (either alone or with another person) on the Account, or to provide Instructions or authorize other Transactions on the Account and for whom notice of such authorization has been given to us. The term Authorized Signing Officer includes: (i) with respect to CWBdirect Business, any person appointed as Administrator pursuant to this Agreement, and (ii) with respect to CWBdirect Enhanced, any person appointed as Signing Officer pursuant to this Agreement;
"Business Day" means any day that is not a Saturday, Sunday or a day in which CWB is required or permitted to be closed in the province of Alberta;
"CWBdirect Business" is the remote online banking technology offered by CWB under the trademark "CWBdirect Business Online Banking" that permits you to access your Accounts, the Services, carry out Transactions and to initiate Account Changes;
"CWBdirect Enhanced" is the remote online banking technology offered by CWB under the trademark "CWBdirect Enhanced Online Banking" that permits you to access your Accounts, the Services, carry out Transactions and to initiate Account Changes;
"Delegate" means an Initiator Delegate or a Read Only Delegate, as applicable. "Device" means a computer, laptop, mobile device, wearable device, tablet, watch or any other electronic device that supports your access and use of CWBdirect Business, CWBdirect Enhanced and the Services;
"Eligible Bill" means a bill that is of a class specified by a by-law, a Rule, or a standard made under the Canadian Payments Act, and defined therein as an “eligible bill”. For greater certainty, under this Agreement, an Eligible Bill supporting an Official Image, must be a paper-based Instrument, complete and regular on its face, immediately payable to you as payee, and be either a cheque, bank draft, or credit union official cheque, denominated in Canadian Dollars or US Dollars and drawn on a financial institution domiciled in Canada, as and if applicable. For the purposes of this Agreement, third party Instruments that were either delivered to you with the payee in blank or endorsed over to you and post-dated Instruments shall not qualify as Eligible Bills. Further, any Instrument that has been in any way transferred to you from anyone other than the drawer, endorsed over to you, or altered after being drawn shall not qualify as an Eligible Bill;
"EMT Answer" means the word or phrase created by the sender of a money transfer and used by the recipient to claim or decline the money transfer using EMT Services;
"EMT Contact Information" means the electronic contact information, including without limitation an email address or telephone number, used in sending and receiving of a money transfer using EMT Services;
"EMT Notice" means the electronic notice sent to the recipient of a money transfer, when such money transfer is sent using EMT Services. The EMT Notice may be read by using an Access Terminal;
"EMT Services" means the money transfer service provided by Acxsys Corporation that facilitates the sending and receiving of money transfers (using including, without limitation, email or telephone) to and from Participating Financial Institutions and the Acxsys Corporation payment service;
"External Account" means an account held at another Canadian financial institution; an Investment Industry Regulatory Organization of Canada registrant; a card issuer; or an entity eligible for membership with Payments Canada, being an account in your name or on which you have the authority to independently authorize Transactions;
"Instructions" includes, and is not limited to, any instruction, order, authorization or approval;
"Initiator Delegate" means any person authorized by a Signing Officer through CWBdirect Enhanced to start Transactions on the Account and to view the Account using an Access Terminal. An Initiator Delegate does not include a Read Only Delegate or a Signing Officer;
"Instrument" means a cheque, promissory note, bill of exchange, order for payment, securities, cash, coupon, note, clearing item, credit card slip for processing, other negotiable instrument, or item of deposit or withdrawal of a similar nature and its electronic equivalent, including electronic debit instructions;
"Invoicing Services" means the invoicing services feature of CWBdirect Enhanced that enables you, through any Signing Officer or Delegate, to generate invoices for your customers, send invoices to your customers, update and track the status of invoices and otherwise manage invoices;
"Merchant" means a person that sells goods or services to you and who receives payment through CWBdirect Enhanced;
"Mobile Device" means a mobile device such as and including a computer, a portable hand-held device, or a telephone, including any form of mobile telephone that is capable of being used in connection with the Services;
"Notification" means a written notice generated by or on behalf of CWB that provides, to you, notice of a pending or completed Transaction or a summary of the balance of the Account, including notices issued by email or SMS text messages;
"Official Image" means an electronic image of an Eligible Bill, either created in accordance with the provisions of this Agreement or that otherwise complies with the requirements to permit negotiation and clearing of that Eligible Bill in accordance with the by-laws, standards, and Rules of Payments Canada;
"Online Payment Service" means the online payment service provided by Acxsys Corporation (doing business as INTERAC Online) that facilitates the sending and receiving of money through Acxsys Corporation to Participating Financial Institutions for the purchase of goods and services from Participating Merchants;
"Our" or "we" or "us" means Canadian Western Bank, the financial institution holding your Account set out in the Account Agreement;
"Participating Financial Institution" means a financial institution participating in EMT Services or Online Payment Services, as the case may be;
"Participating Merchant" means a Merchant that offers the Online Payment Service as an online payment option on the Merchant’s website;
"PFM Service" means the financial management service provided by a Third Party PFM Service provider, which may be accessed through CWBdirect Enhanced, that allows you to consolidate management of the Account with management of External Accounts or other financial information, assets, and liabilities outside CWB, linked to CWBdirect Enhanced through the PFM Service provider or input by you, and such other financial management services as may be offered from time to time by the PFM Service provider or CWB;
"Read Only Delegate" means a person authorized by a Signing Officer through Direct Services for Small Business to view the Account using an Access Terminal. A Read Only Delegate does not include an Initiator Delegate or a Signing Officer;
"Remote Deposit Service" means the remote deposit capture service provided by us and Central 1 Credit Union, and accessed through CWBdirect Enhanced, that allows you, using an Access Terminal and any other means authorized by us in our sole discretion from time to time, to create, transmit, and receive to the benefit of CWB an Official Image for deposit to the Account. For clarity, the Remote Deposit Service is only available to our customers who access their Accounts through CWBdirect Enhanced. Account holders using CWBdirect Business to access their Accounts do not have access to the Remote Deposit Service; instead, CWBdirect Business customers are able to access a different remote deposit capture service called Corporate Remote Deposit Capture Services, which is 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 made available to you pursuant to this Cash Management Online Services Agreement and any accompanying Service Schedule(s);
"Service Provider" means any of CWB's suppliers, licensors, service providers, 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;
"Signing Officer" means any person who has been authorized by you to access CWBdirect Enhanced for the purpose of entering Delegate or account data;
"Third Party" means any person, firm, corporation, association, organization, or entity other than CWB;
"Transaction" means any transaction processed to or from the Account;
"User" means an individual that has been appointed by an Administrator to conduct Transactions, provide Instructions or set up and access Account information on your behalf; and
"You" or "your" means the customer who holds the Account with Canadian Western Bank;
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.
2. SCOPE OF SERVICES
1. This Cash Management Online Services Agreement outlines the terms and conditions pursuant to which CWB provides you with online access to your Accounts through CWBdirect Business, CWBdirect Enhanced and the Services described in each applicable Service Schedule available to you.
2. 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.
3. You may select Services by delivering to CWB applicable forms and other documentation that CWB may require in respect of that product (collectively, the "Services Requesting Documentation"). You agree that the Service Schedule for each product you request will become effective immediately upon CWB's 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"): (i) this Cash Management Online Services Agreement; (ii) each applicable Service Schedule; (iii) the applicable Pricing Arrangements; (iv) Services Requesting Documentation; (v) account opening agreements governing the your Accounts, including your Account Agreement; and (vi) such other documents and agreements CWB may require from time to time.
4. This Agreement shall be read together with any other existing or future agreements you may have with CWB.
5. By accessing and using CWBdirect Business, CWBdirect Enhanced or any of the Services described in this agreement, 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.
3. ONLINE BANKING
The terms and conditions below shall apply to CWBdirect Business online banking platforms:
CWBdirect Business
1. Access. You hereby authorize CWB to provide the Administrator (and any Users appointed by the Administrator) access to all of your Accounts through CWBdirect Business, including all existing Accounts and all future Accounts opened after the date of this Agreement, as well as access to the Services.
2. Initial login. If a single Administrator is identified, that Administrator shall be responsible for completing the initial login process. After the initial login process has been completed, if necessary, any Administrator shall have the option to create additional Users, to restrict the access of such Users to the Services or to establish transaction limits for such Users. An Administrator shall create Administrators and Users online by following the instructions contained in the appropriate screen pages, which include the Administrator's assignment of a valid User ID and password for use by such User.
3. Users. The Administrator may appoint individual Users to conduct transactions, carry out Instructions, set up and access Account information. A User shall only be authorized to conduct those transactions or Instructions or parts thereof which have been designated to them by an Administrator, and a User's access may be revoked by an Administrator at any time. At the request of an Administrator, different Users may have different levels of access to CWBdirect Business and the Services, including differing transaction limits. You are solely responsible for ensuring that the level of access or any transaction limits provided to any individual User are appropriate for that person and are in accordance with your internal protocols and policies.
CWBdirect Enhanced
The terms and conditions below shall apply to CWBdirect Enhanced online banking platforms:
4. Access. You hereby authorize CWB to provide the Signing Officers (and any Delegates) access to all of your Accounts through CWBdirect Enhanced, including all existing Accounts and all future Accounts opened after the date of this Agreement, as well as access to the Services.
5. Initial login. If a single Signing Officer is identified, that Signing Officer shall be responsible for completing the initial login process. After the initial login process has been completed, if necessary, any Signing Officer shall have the option to create additional Delegates, to restrict the access of such Delegates to the Services or to establish transaction limits for such Delegates. A Signing Officers shall create other Signing Officers and Delegates online by following the instructions contained in the appropriate screen pages, which include the Signing Officer's assignment of a valid ID and password for use by such Delegate.
6. Delegates. The Signing Officers may appoint individual Delegates to conduct transactions, carry out Instructions, set up and access Account information. A Delegate shall only be authorized to conduct those transactions or Instructions or parts thereof which have been designated to them by Signing Officers, and a Delegate's access may be revoked by an Signing Officer at any time. At the request of any Signing Officer, different Delegates may have different levels of access to CWBdirect Enahnced and the Services, including differing transaction limits. You are solely responsible for ensuring that the level of access or any transaction limits provided to any individual Delegate are appropriate for that person and are in accordance with your internal protocols and policies.
The terms and conditions below shall apply to both CWBdirect Business and CWBdirect Enhanced online banking platforms:
7. Authority. You represent and warrant that (i) your Authorized Contacts and Authorized Signing Officers 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 CWBdirect Business, CWBdirect Enhanced or the Services; and (ii) you have granted authority to such Authorized Contacts and Authorized Signing Officers to legally bind you with respect to their use of the Services. Any access to or use of CWBdirect Business, CWBdirect Enhanced or the Services purporting to be authorized by you or on your behalf by its Authorized Contacts or Authorized Signing Officers will be considered by CWB, 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 Authorized Contacts or Authorized Signing Officers through the Services and you will be liable for all transactions conducted through the Services and any loss that may arise from these transactions. You acknowledge that each transaction made through CWBdirect Business, CWBdirect Enhanced 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 CWB.
8. Related Entities. You represent and warrant that if any Related Entities (as defined in the CWB Agreements) participate in CWBdirect Business under this Agreement as part of a Related Group, the Related Entities have taken all corporate or other steps required by them to approve this Agreement and have delegated authority to the Authorized Signing Officers to sign the Agreement and to deal with CWB on their behalf as if they had individually signed the Agreement.
9. Linking of Accounts. You represent and warrant to CWB that all Related Entities have authorized the linking of all their accounts identified in this Agreement or any other CWB Agreement in accordance with its terms and authorized any Authorized Contact named herein to access all accounts of the Related Entities when such access is accomplished electronically via CWBdirect Business or CWBdirect Enhanced in accordance with this Agreement. Each Authorized Contact shall be entitled to such access, whether or not such person is named in any particular account documentation of a Related Entity as an "authorized agent" or "authorized signer" or whether such person is otherwise authorized to sign on a particular account. Each Authorized Contact shall further be entitled to access and control all such accounts singly via CWBdirect Business or CWBdirect Enhanced, 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 electronically control such accounts, to view, and initiate transactions and withdrawals, transfer money, change addresses and other account information and generally perform all types of electronic transactions to and from each account, and to further authorize other Authorized Contacts to access the accounts to perform similar functions.
10. Multiple Signatures. As a result of the powers granted to Administrators and Signing Officers in this Agreement, CWB may receive and carry out transactions, authorizations and other Instructions through CWBdirect Business or CWBdirect Enhanced in respect of the Services despite the fact that such Account requires two or more signatures to conduct transactions (for example, writing cheques or making withdrawals at a branch). This means that Instructions, approvals or other authorizations in respect of the Services may be received and acted upon by CWB on the Instruction of one individual (an Authorized Contact) 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. As long as 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.
11. Loss or Damage. You accept sole responsibility for any loss or damage that may result from any Authorized Contact misusing their authority in any way, including, without limitation, in respect of any funds which are trust funds. An Authorized Contact’s access rights as determined by the Administrator or Signing Officer shall continue until such time as the Administrator or Signing Officer removes such individual or otherwise changes his/ her delegated authority and CWB has had sufficient time to process the request. For greater certainty, once CWB has processed such request, any changes or deletions of delegated authority take effect upon the following attempt to log in to CWBdirect Business or CWBdirect Enhanced by such Authorized Contact.
12. Information. CWB may be required to obtain confirmation of identity or other information in relation to any Authorized Contact in order to comply with applicable laws. This information may be obtained before or after access is granted to any such Authorized Contact, and access to CWBdirect Business or CWBdirect Enhanced, as the case may be, whether partial or complete, may be blocked or limited until this information has been fully obtained (in CWB's sole discretion). When any such identity is information provided by you to CWB, you certify that such information is true and correct.
4. SECURITY
1. Security Procedures. You agree to ensure that each Authorized Contact maintains the security of each login ID and password. In that respect, you agree to implement the following security procedures: (i) you shall follow such procedures and controls as CWB may reasonably require in connection with CWBdirect Business, CWBdirect Enhanced or any Service; (ii) you shall ensure that all login IDs, passwords and other authentication methods (such as authentication questions) be treated in the strictest confidence and that no Authorized Contact disclose such information to any other person; (iii) 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 you and its Authorized Contacts in an appropriate and proper fashion; (iv) you shall ensure that authorized persons never leave their computers unattended while logged into CWBdirect Business or CWBdirect Enhanced and must always exit by clicking on the appropriate 'logout' command; (v) you shall ensure that any login ID, password and other authentication methods (such as authentication questions) be immediately terminated if you learn or suspect that such information has been disclosed to or obtained by any unauthorized third party; (vi) you shall ensure that CWBdirect Business or CWBdirect Enhanced is only accessed from computers or mobile devices (to the extent reasonably available) on which virus protection software and firewalls have been installed. You agree to immediately update all virus protection and firewall software as such updates become available from the manufacturer; (vii) you shall follow any login ID, password and other authentication method (such as authentication question) requirements established by CWB 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. This includes having login IDs, passwords and other authentication methods (such as authentication questions) that are not sequential numbers such as '1234', social insurance numbers or telephone numbers or selecting a login ID, password or other authentication method (such as authentication question) that is the same as a personal identification number (PIN) used for any debit or credit cards held with CWB; and (viii) you shall follow procedures dealing with intelligent authentication. For greater certainty, intelligent authentication consists of security questions along with answers unique to each Authorized Contact. You agree that its Authorized Contacts shall set up (if required) unique questions and answers which are not easily identifiable or guessed.
2. Passcode. When a User or Delegate conducts certain transactions through, or changes certain information on, CWBdirect Business or CWBdirect Enhanced, the User or Delegate may be prompted to enter a passcode in order to authenticate that transaction or change. That passcode will be sent by automated phone call or SMS text message to the telephone number or device selected by the User or Delegate. Text messages may be sent to a mobile device and may be subject to charges in accordance with the terms of the mobile device plan. You acknowledge that levels of access or transaction limits that may be established by you or CWB from time to time, the User will not be able to complete the transaction or effect the change unless the applicable passcode is entered correctly.
3. Monitoring. You are responsible for instructing all Authorized Contacts to comply with the security procedures set out in Sections 4.1 and 4.2 above. If at any time you believes that the security of communications between you and CWB has been compromised or is in any way insecure, you must immediately notify CWB and assist as required by CWB to investigate and correct communication security.
4. No Liability. You shall notify CWB immediately if you suspects that any login ID, password, telephone number or device to which a confirmation code may be sent or other authentication methods (including authentication questions) has become known to or accessible to any unauthorized person. You agree that CWB may block access to Services without notice in the event that CWB believes that there has been a breach in security. CWB will not be liable for any losses or damages that you may suffer or incur in relation to the Services or from acting on Instructions received through CWBdirect Business. CWB shall have no liability for any unauthorized use of login IDs, passwords, or any other authentication methods (including authentication questions) before you has notified CWB of possible unauthorized use and CWB has had a reasonable opportunity to act upon such notice. In no circumstances shall CWB have any liability for any unauthorized use of your or any Authorized Contact's identifying information or passwords. In no circumstances is CWB required to verify the identity of or to confirm if any authority has been granted to the provider of Instructions.
5. Computer Capability. To have CWBdirect Business access, you must have Internet access using Internet browser programs that are compatible with CWB's computer systems and which have at least 128 bit encryption. CWB has 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 CWB in order to continue accessing or using CWBdirect Business.
6. Applications. If Authorized Contact downloads a software application (an "Application") to access any services, functionality, features, content or information offered by CWB (including CWBdirect Business), then: (i) CWB grants you a non-exclusive and non-transferable license to the Application in object code only and solely for the purpose of accessing any services (including the Services), functionality, features, content and information that CWB offers from time to time; (ii) CWB reserves all of the rights in and to each Application and you obtain no ownership rights whatsoever other than this license to use the Application; (iii) CWB accepts no responsibility or liability whatsoever for your use of the Application and will not be responsible for any damage that you may suffer from using or downloading the Application whether under this Agreement or otherwise; and (iv) CWB may cancel the terms and the license to the Application at any time on notice. If CWB does that, then you will immediately destroy or return all copies of the Application and any documentation in relation to it that is in its possession including the possession of its Users and Delegates.
5. BILL PAYMENTS
1. If CWB permits, you may be entitled to utilize CWBdirect Business or CWBdirect Enhanced to make online bill payments to payees designated by you ("Payees"). You authorize CWB to follow any payment Instructions for bill payments ("Bill Payment Instruction") received by you through CWBdirect Business or CWBdirect Enhanced. CWB will, after receipt of a Bill Payment Instruction, debit your Account designated in the Bill Payment Instruction on the date scheduled by you in the Bill Payment Instruction ("Date") and remit funds on your behalf to the Payee as close as reasonably possible to the Date designated.
2. You authorize CWB to make bill payments to the Payee by any means CWB determines appropriate.
3. 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.
4. CWB shall have no responsibility for: (i) delays in crediting payments which are as a result of the Payee's procedures; (ii) your failure to follow a Payee's payment requirements; or (iii) your failure to schedule a Date to remit funds sufficiently in advance of the date a bill payment is due. Without limiting any other provisions in this Agreement, CWB will incur no liability if the Service is unable to complete any bill payments initiated by way of CWBdirect Business or CWBdirect Enhanced 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.
5. CWB will not be responsible under any circumstances for any late payment penalties, fees or interest imposed by your bill payment company.
6. STOP PAYMENTS
1. If CWB permits, you may be entitled to use this Service to stop payments on any preauthorized debits or cheques (hereinafter collectively, an "Item") issued by you. CWB will use all reasonable efforts to stop payment on an Item provided that stop payment Instructions are received in sufficient time to permit CWB a reasonable opportunity to return the Item in compliance with any applicable laws or clearing rules.
2. Verification. You acknowledge that any stop payment order is also conditional and subject to CWB's verification that the Item has not already been paid or that some other action to pay the Item has not been undertaken by CWB.
3. Sufficient Information. CWB shall only be required to stop payment on an Item if you provide CWB sufficient information in respect of the Item that it requests for payment to be stopped. If you provide CWB with an incorrect amount or any other incorrect information in respect of the Item, CWB will not be responsible for failing to stop payment on the Item.
4. Indemnity. By directing CWB to stop payment on any Item, without limiting any other provision of this Agreement, you agree to indemnify and hold CWB harmless against any and all losses, claims, damages and costs CWB may suffer or incur relating to CWB's 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.
7. TRANSFERS WITH EXTERNAL ACCOUNTS
If CWB permits, you may be entitled to use the Services to authorize the transfer of funds between the Account and an External Account where you are also the account holder, provided that:
1. you agree to inform us in writing of the External Accounts you wish to link to the Account in a form acceptable to us;
2. We reserve the right to refuse to accept the External Account;
3. You agree to provide us with the financial institution number, branch address or number, and the account number of the External Account you wish to link to the Account. We reserve the right to verify the External Account. You acknowledge that such verification may require the exchange of personal information of you and any Authorized Contact, and you consent, and shall ensure that each Authorized Contact consents, to such use and disclosure of personal information;
4. You and the External Account holder must provide authorization to establish the link between the Account and the External Account;
5. You agree to not link the Account to an account that is not owned by you;
6. You acknowledge and agree, and shall ensure that each Authorized Contact agrees that we, at our discretion, may limit the type of transfers that can be conducted between the Account and the External Account; specifically, whether Transactions will be in the form of credits to the External Account, debits from the External Account, or both credits to and debits from the External Account;
7. You may only link an Account denominated in Canadian dollars to an External Account denominated in Canadian dollars, or an Account denominated in U.S. dollars to an External Account denominated in U.S. dollars, and only if the External Account is with a financial institution domiciled in Canada;
8. We reserve the right to limit: the number of External Accounts that can be linked to the Account; the dollar amount of Transactions to or from the External Account; and the number of Transactions to or from the External Account;
9. We reserve the right to hold funds on the Transaction amount;
10. You consent, and shall ensure that each Authorized Contact consents to the disclosure to the financial institution that holds the External Account of any personal information provided to us with respect to Transactions to or from the External Account. You also consent, and shall ensure that each Authorized Contact consents to the disclosure to us by the financial institution holding the External Account of any personal information provided to such financial institution with respect to Transactions to or from the External Account;
11. Funds usually arrive in your External Account or Account within three to five business days from the day the Transaction is authorized. We cannot guarantee the date of deposit to the Account or External Account. CWB 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 the processing of Transactions;
12. All deposits or withdrawals will be reversed if the Transaction cannot be delivered or if it is returned for any reason; and
13. You agree that for security or risk management purposes and at our discretion, a nominal sum may be credited to the External Account once per year.
8. TRANSFERS WITH LINKED ACCOUNTS
If CWB permits, you may be entitled to use the Services to link multiple Accounts to a single user name to allow you to access the Accounts from a single user name. If the Accounts are linked, then you understand and agree that:
1. We reserve the right to refuse to accept any Account;
2. We, at our discretion, may limit the type of Transactions that can be authorized between the Accounts, specifically whether Transactions will be in the form of credits to an Account, debits from an Account, or both credits to and debits from an Account;
3. We reserve the right to limit: the number of Accounts that can be linked; the dollar amount of Transactions made to or from a linked Account; and the number of Transactions made to or from a linked Account;
4. We reserve the right to apply a hold on the Transaction amount to a linked Account for a period of time to be determined by us, during which time the Transaction or portion thereof will not be accessible to you;
5. We cannot guarantee the date of a Transaction to and from a linked Account and that CWB will not be held liable for any cost, expense, loss, damage, or inconvenience of any nature arising as a result of a delay in the processing of Transactions; and
6. A Transaction will be reversed if the Transaction cannot be delivered or if it is returned for any reason.
9. EMT SERVICES
If CWB makes EMT Services available and you authorize the use of EMT Services, you acknowledge and agree, and shall ensure that each Authorized Contact agrees, that:
1. the EMT Services are only available in Canadian dollars;
2. the Account will be debited as soon as you authorize a Transaction, and we may hold the Transaction amount until the recipient successfully claims the Transaction or the Transaction is cancelled. We have no obligation to and will not pay interest on the Transaction amount. To the extent permitted at law, we are deemed to have a security interest in the Transaction amount from the time the Account is debited until the recipient successfully claims the Transaction or the Transaction is cancelled;
3. Transactions sent and received through the EMT Services are subject to number and dollar limits that may change from time to time without prior notice to You;
4. We will not be responsible or liable for any losses or damages incurred as a result of funds held and limits set by us, Acxsys Corporation, or a Participating Financial Institution;
5. An EMT Notice advising the recipient of the Transaction will be generated approximately 30 minutes after you originate or authorize the Transaction;
6. As the sender or authorizer, you will keep the EMT Answer confidential and will not disclose it or share it with anyone but the intended recipient;
7. The recipient must correctly provide the EMT Answer to claim or decline the Transaction;
8. We, the other Participating Financial Institution, and Acxsys Corporation or Acxsys Corporation's agents are entitled to pay the Transaction amount to anyone who, using the EMT Services, claims to be the recipient and successfully provides the EMT Answer;
9. We will not be liable for losses or damages incurred as a result of a person other than the intended recipient guessing or obtaining the EMT Answer;
10. As the sender or authorizer, you will not include the EMT Answer in the Transaction details;
11. As the recipient or receiver, you will not disclose the EMT Answer except as required to claim or decline the Transaction;
12. The recipient may claim a Transaction using our online banking services or another Participating Financial Institution or through the Acxsys Corporation payment service;
13. If the recipient declines a Transaction that you initiated, the Transaction will be returned to you;
14. Funds usually arrive in the recipient's account within three to five business days from the day the recipient successfully claims the Transaction. We cannot guarantee the date of deposit;
15. If you are the sender, the Transaction will be returned to you if the recipient does not claim the Transaction within 30 days of the date the Transaction is initiated, if the Transaction cannot be successfully sent to the recipient's EMT Contact Information as provided by You, or if the recipient declines the Transaction. You are responsible for providing the recipient's correct EMT Contact Information and further agree that the recipient has consented to your use of the EMT Contact Information for EMT Services purposes, including its provision to us, the other Participating Financial Institution, and Acxsys Corporation;
16. If the recipient successfully claims the Transaction using the Acxsys Corporation payment service but provides incorrect account information, Acxsys Corporation or its agent may request correct account information from the recipient or may mail an Instrument to the recipient. We will not pay interest on the Transaction amount;
17. We may cancel a Transaction if we have reason to believe that a mistake has occurred or if we believe that the Transaction is a product of unlawful or fraudulent activity;
18. You are responsible for providing valid EMT Contact Information and will immediately update it if there are any changes to the EMT Contact Information;
19. As the sender or authorizer, you may cancel a Transaction up to the time the recipient successfully claims the Transaction. As the recipient or receiver, you acknowledge that a Transaction may be cancelled up to the time you successfully claim the Transaction;
20. All disputes will be handled directly between the sender and the recipient without the participation of the Financial Institution or any other party;
21. We may refuse to provide EMT Services for you; and
22. 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 a Transaction or for Transactions claimed by someone other than the intended recipient.
10. REMOTE DEPOSITS [CWBdirect Enhanced Only]
If CWB, through CWBdirect Enhanced, makes the Remote Deposit Service available and you or a Signing Officer or Delegate use the Remote Deposit Service, you acknowledge and agree, and shall ensure that each Signing Officer and Delegate agrees, that:
1. Solely for the Remote Deposit Service, CWB appoints you as its agent, to act on our behalf in the creation and transmission of an Official Image to us, and any other related duties that may be required by us, all in accordance with the Rules and applicable legislation governing Instruments. In this context, transmission to and receipt by us of the Official Image will have the same effect as if the Instrument was delivered to a branch of CWB for negotiation and clearing. You acknowledge and agree, and shall ensure that each Signing Officer and Delegate acknowledges and agrees, that you cannot further delegate this role as agent. Further, you acknowledge and agree, and shall ensure that each Signing Officer and Delegate acknowledges and agrees, that you and each Signing Officer and Delegate will be personally responsible and liable for:
10.1.1. Compliance with this Agreement;
10.1.2. Maintaining adequate security over any Access Terminal used, the location of use of the Access Terminal, and any passwords so as to prevent use by others or interception of data transmitted;
10.1.3. Ensuring that all Official Images created and transmitted are of good quality and fully and accurately capture all material details of the Eligible Bill;
10.1.4. Maintaining adequate safeguards and procedures for the preservation of originals of all Eligible Bills transmitted as Official Images, and
10.1.5. Verifying that deposits expected to be made to the Account reconcile with dates and amounts applicable to transmissions made using the Remote Deposit Service and for providing immediate notice to us of any errors, omissions, irregularities, or concerns about suspicions of fraudulent Instruments or compromise of the security applicable to the use of the Remote Deposit Service;
2. We may, upon receipt of what reasonably appears to qualify as an Official Image, treat such as an Official Image and, as if it were an original of an Instrument received at a branch of CWB, subject to the Account Agreement and any of our policies governing Instruments;
3. 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;
4. Nothing in this Agreement obliges us to accept for deposit any item whether it is or purports to be an Official Image. You shall not purport to create or transmit an Official Image of any item that does not qualify as an Eligible Bill or any item that is post-dated, stale-dated, received by you from anyone other than the drawer of that item, or that is in any way altered. If you, a Signing Officer or a Delegate has any suspicions or concerns about the authenticity, validity, negotiability, or chain of title to any item purporting to be an Eligible Bill, then you, the Signing Officer or the Delegate, as the case may be, shall not seek to use the Remote Deposit Service for negotiation or collection of that item, but you or a Signing Officer, as the case may be, will instead bring the original of that item to the counter of the branch of Account, identify the specific concerns to us, and fully disclose all material facts known by you, the Signing Officer or the Delegate, as the case may be, relating to that item and fully cooperate with any inquiry or investigation of the concerns;
5. Under the Remote Deposit Service, Eligible Bills are restricted to those Instruments in Canadian dollars or United States dollars, drawn on a financial institution domiciled in Canada or the United States, as and if applicable, in our sole discretion, from time to time. You shall not seek to use the Remote Deposit Service to deposit any Instrument into an Account different than the currency denominated on the Instrument. Canadian dollar Instruments shall only be deposited to a Canadian dollar Account. United States dollar Instruments shall only be deposited to a United States dollar Account and must be drawn on a financial institution domiciled in Canada. If you use the Remote Deposit Service with an Instrument that does not qualify for this Service, we, at our discretion, may refuse to negotiate that Instrument or seek to collect on the Instrument on your behalf, as though it was a qualifying Instrument 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 Instrument;
6. Official Images received through the Remote Deposit Service are subject to number and dollar limits that may change from time to time without prior notice to you;
7. 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 our next business day;
8. Once an Official Image of an Eligible Bill has been transmitted to us through the Remote Deposit Service, no further Official Images of that Eligible Bill will be created or transmitted through the Remote Deposit Service (or any other similar service) unless you are requested to do so by us in writing. Further, you agree to make no further use of the original of an imaged Eligible Bill, and shall safely retain possession of the original of the Eligible Bill without further negotiation, transfer, or delivery to any other person or holder. In addition to all obligations and responsibilities either set forth in this Agreement or elsewhere, you agree to indemnify and hold us and our service providers and Central 1 Credit Union and all of their connected parties, including, without limitation, their respective agents, directors, officers, employees, affiliates, and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities and costs, including, without limitation, reasonable legal fees and expenses incurred by the Indemnified Parties in connection with any claim or demand arising out of or connected to your use of the Remote Deposit Service or duplicate negotiation of items that were at any time presented as Official Images of Eligible Bills. You must assist and cooperate as fully as reasonably required by the Indemnified Parties in the defence of any such claim or demand. The disclaimers, liability exclusions, liability limitations, and indemnity provisions in this Agreement survive indefinitely after the termination of this Agreement and apply to the extent permitted by law. Without limiting the foregoing, you will indemnify and save the Indemnified Parties harmless from and against all liability, costs, loss, expenses, and damages, including direct, indirect, and consequential incurred by the Indemnified Parties as a result of any breach of this Agreement, or any claims arising from or relating to misuse of Official Images or items purporting to be Official Images, or negotiation of Eligible Bills where an Official Image has also been transmitted for collection;
9. On transmission of an Official Image of an Eligible Bill to us, you are responsible for immediately marking the face of the Eligible Bill with a blatant notation or mark that prevents renegotiation of the Eligible Bill and indicates that the Eligible Bill has been imaged and transmitted, taking care not to obliterate any material particulars of that Eligible Bill. (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 colored highlighter.) For a period of 90 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 immediately on written request the original of all imaged Eligible Bills. If you receive a written request to retain or produce, you shall comply with the written request, and shall, if requested, produce, by delivering to us, the original of all specified Eligible Bills within five 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 Bills, even if such creates an overdraft on the Account. If no written request is received within that time, then 90 calendar days after an Official Image has been transmitted to us through the Remote Deposit 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 and shall ensure that each Signing Officer and Delegate agrees, to immediately proceed with destruction of the original of the Eligible Bill. Destruction methods include shredding, pulping, burning, or any other means that ensures that the original Instrument cannot be reused;
10. You are responsible for any and all costs associated with obtaining a replacement Instrument in the event that we request that you re-transmit an Official Image and the original Instrument was destroyed in accordance with this Agreement or otherwise lost;
11. In our sole discretion, electronic notices for purposes related to the Remote Deposit Service may be generated and sent to you after you use the Remote Deposit Service to transmit an Official Image, including to advise you of the receipt by us of an Official Image;
12. An electronic notice, if any, sent in connection with the Remote Deposit 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; and
13. We will not be liable for any cost, expense, loss, damage, or inconvenience of any nature or kind whatsoever arising as a result of use of the Remote Deposit Service, including, but not limited to, a delay in processing a Transaction or if we require you to obtain another Instrument.
11. ONLINE PAYMENT [CWBdirect Enhanced Only]
If CWB, through CWBdirect Enhanced, makes the Online Payment Service available and you authorize or a Signing Officer authorizes the use of the Online Payment Service, you acknowledge and agree, and shall ensure that each Signing Officer agrees, that:
1. You or any Signing Officer, acting alone, can authorize a Transaction through the Online Payment Service;
2. The Online Payment Service is only available in Canadian dollars from Participating Merchants;
3. Transactions for the Online Payment Service must be initiated by you or a Signing Officer through the appropriate online payment option available on the website of a Participating Merchant. For further certainty, a Delegate cannot use the Online Payment Service;
4. As soon as you or a Signing Officer authorizes a Transaction through the Online Payment Service, and provided that there are available funds or credit, the amount of the Transaction will be withdrawn from the Account or a hold will be placed in the amount of the Transaction. We will hold the Transaction amount until the Participating Merchant successfully claims the Transaction or 30 minutes have elapsed, whichever comes first. We have no obligation to and will not pay interest on the Transaction amount. To the extent permitted at law, we are deemed to have a security interest in the Transaction amount from the time the Account is held until the Participating Merchant successfully claims the Transaction or the hold is removed;
5. Transactions sent and received through the Online Payment Service are subject to number and dollar limits that may change from time to time without prior notice to you;
6. We will not be responsible or liable for any losses or damages incurred as a result of funds held and limits set by us, Acxsys Corporation, a Participating Merchant, or a Participating Financial Institution;
7. CWB, the Participating Financial Institution, and Central 1 Credit Union are entitled to pay the Transaction amount to anyone who claims to be the Participating Merchant and provides the payment authorization details within 30 minutes of the Transaction being authorized by you or a Signing Officer;
8. We will not be liable for losses or damages incurred as a result of a person other than the intended Participating Merchant receiving the Transaction amount;
9. If the Participating Merchant cancels, declines, or fails to claim a Transaction that you or a Signing Officer authorized, the Transaction amount will be reinstated after 30 minutes have elapsed since the Transaction was authorized. However, we cannot guarantee the date or time that the hold on the Transaction amount will be removed;
10. We, Central 1 Credit Union, or Acxsys Corporation may cancel a Transaction once it is authorized but before payment authorization details are sent to the Participating Merchant, if there is reason to believe that a mistake has occurred or that the Transaction is a product of unlawful or fraudulent activity;
11. Once payment authorization details have been sent to the Participating Merchant, a Transaction cannot be cancelled. Payment authorization details are sent immediately after a Transaction is authorized by you or a Signing Officer;
12. All disputes, including requests for refunds, will be handled directly between you or a Signing Officer and the Participating Merchant without our participation or the participation of any other party. A refund, if any, may be received through CWBdirect Enhanced and Central 1 Credit Union for credit to the Account, or through such other method the Participating Merchant deems appropriate;
13. We may refuse, in our sole discretion, to provide the Online Payment Service for you;
14. In our sole discretion, electronic Notifications for purposes related to the Online Payment Service may be generated and sent to you after you or a Signing Officer authorizes a Transaction, including to advise you that the Account has been debited;
15. An electronic Notification, if any, sent in connection with the Online Payment Service is for information purposes only and is no guarantee that the Participating Merchant will successfully claim the Transaction or that you have successfully purchased the product or service from the Participating Merchant; and
16. We will not be liable for any cost, expense, loss, damage, or inconvenience of any nature or kind whatsoever arising as a result of using the Online Payment Services, including, but not limited to, a delay in processing a Transaction or a Participating Merchant failing to claim a Transaction.
12. INVOICING SERVICES [CWBdirect Enhanced Only]
If CWB, through CWBdirect Enhanced, makes Invoicing Services available and you use the Invoicing Services:
1. You consent to CWB disclosing to Central 1 Credit Union specific data relating to your use of the Invoicing Services, including data about your customers and the timeliness of their payments;
2. You acknowledge that the consents contained in a) above are requirements of the Invoicing Services and that if such consents are withdrawn, your participation in the Invoicing Services may be suspended or terminated;
3. Your are solely responsible for all data and all documents created using the Invoicing Services, including the accuracy of data relating to each of your customers, and the accuracy of invoices you send to your customers;
4. You agree that CWB, although it has no obligation to do so, has the absolute discretion to remove, screen or edit without notice any invoice posted or stored using the Invoicing Services, and CWB may do this at any time if it deems an invoice or your business related to the invoice, to be unlawful or inappropriate;
5. You are solely responsible for maintaining copies of invoices;
6. You may only use the Invoicing Services for the intended purpose of facilitating the generation, delivery and tracking of invoices; and
7. You agree that the Invoicing Services are provided on an "as is" basis without warranties of any kind, either express or implied, and CWB expressly disclaims all other warranties, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. CWB does not represent or warrant that:
12.7.1. The Invoicing Services will be reliable, uninterrupted, timely, secure or error-free;
12.7.2. The Invoicing Services will meet your requirements; or
12.7.3. Any errors in the Invoicing Services technology will be corrected.
13. PERSONAL FINANCIAL MANAGEMENT - If CWB, through CWBdirect Enhanced, makes the PFM Service available, you agree, and shall ensure that before permitting each Signing Officer to access and use PFM Services, each Signing Officer agrees, that the terms and conditions in this article, Personal Financial Management, govern your use and each Signing Officer's use of the PFM Service, and are binding upon you and each Signing Officer. If there is any conflict between this article and the terms and conditions in the rest of this Agreement, then this article, Personal Financial Management, will apply in respect of the PFM Service. In addition, if you subscribe for PFM Services, special terms and conditions will also apply, as more particularly set forth in the PFM Special Terms attached to and forming part of this Agreement. If there is any conflict between the PFM Special Terms and the terms and conditions in the rest of this Agreement or in respect of this article, then the PFM Special Terms will apply for the PFM Service. Further:
1. In connection with the PFM Service, you agree, and shall ensure that each Signing Officer agrees, to provide true, accurate, current, and complete information about you, an External Account, an asset and a liability when required by Us. Further, you agree, and shall ensure that each Signing Officer agrees, to notify Us of any changes to such information within a reasonable period of time;
2. You agree, and shall ensure that each Signing Officer agrees, to inform Us, through CWBdirect Enhanced, of the External Account, asset, or liability you wish to link or add to the PFM Service, including the modification or removal of any linked or added External Account, asset, or liability;
3. We and the PFM Service provider each, individually, have the right, in Our and the PFM Service provider's sole discretion, to refuse to link or add an External Account, asset, or liability to the PFM Service for any reason, including, but not limited to, inability, cost, or inconvenience of linking or adding the External Account to the PFM Service;
4. You agree, and shall ensure that each Signing Officer agrees, to provide Us with the online access credentials (e.g., user name, password, security questions, security question answers) of the External Account that you wish or the Signing Officer wishes to link to the PFM Service, and that the PFM Service provider will store such online access credentials on your behalf. We reserve the right to verify the External Account;
5. You or a Signing Officer must provide authorization to establish the link between the PFM Service and the External Account, or to add the asset or liability to the PFM Service;
6. You agree, and shall ensure that each Signing Officer agrees, to not link, or add, to the PFM Service an External Account, asset, or liability that is not owned by you or a Signing Officer, as the case may be;
7. We reserve the right to limit the number of External Accounts, assets, and liabilities that can be linked or added to the PFM Service;
8. You agree, and shall ensure that each Signing Officer agrees, that the PFM Service may, from time to time, access the External Account to ensure that the personal financial information on file is current, and to update the personal financial information on file if it is not, using information retrieved from the External Account. Such access will be at the discretion of the PFM Service provider and will typically occur when you or a Signing Officer accesses The Services, but may be more or less frequent;
9. You acknowledge and agree, and shall ensure that each Signing Officer acknowledges and agrees, that any information provided by you or a Signing Officer about an asset or liability that is not under an External Account or the Account, is provided at your sole discretion or the sole discretion of a Signing Officer, as the case may be. Further, you agree, and shall ensure that each Signing Officer agrees, that it is your or the Signing Officer's responsibility, as the case may be, to keep such information current;
10. You agree, and shall ensure that each Signing Officer agrees, to only use content delivered through the PFM Service on the PFM Service.
You and each Signing Officer must not copy, reproduce, distribute, or create derivative works from this content. Further, you agree, and shall ensure that each Signing Officer agrees, not to reverse engineer or reverse compile any of the PFM Service technology, including, but not limited to, any Java applets associated with the PFM Service;
11. You agree, and shall ensure that each Signing Officer agrees, to license to Central 1, its service providers, and the PFM Service provider, any information, data, passwords, materials, or other content (collectively, "Content") that you or a Signing Officer provides through or to the PFM Service. Central 1 and the PFM Service provider may use, modify, display, distribute, and create new material using such Content to provide the PFM Service to you or a Signing Officer. By submitting Content, you automatically agree, or promise that the owner of such Content has expressly agreed that, without any particular time limit, and without the payment of any fees, Central 1 and the PFM Service provider may use the Content for the purposes set out above. By a Signing Officer submitting Content, you will ensure that Signing Officer agrees, or promises that the owner of such Content has expressly agreed that, without any particular time limit and without the payment of any fees, Central 1 and the PFM Service provider may use the Content for the purposes set out above. As between Central 1 and the PFM Service provider, Central 1 owns your and each Signing Officer's confidential account information;
12. For the purposes of the PFM Service, you hereby grant, and shall ensure that each Signing Officer grants, Central 1 and the PFM Service provider a limited power of attorney, and appoint Central 1 and the PFM Service provider as your and each Signing Officer's true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and each Signing Officer, in your and each Signing Officer's name, place, and stead, in any and all capacities, to access Third Party Internet sites, servers, or documents, retrieve information, and use your and each Signing Officer's information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you or a Signing Officer might or could do in person. You further acknowledge and agree, and shall ensure that each Signing Officer further acknowledges and agrees, that when Central 1 or the PFM Service provider accesses and retrieves information from Third Party websites, Central 1 and the PFM Service provider are acting as your or the Signing Officer's agent, and not the agent of or on behalf of the Third Party. You further agree, and shall ensure that each Signing Officer further agrees, that such Third Parties will be entitled to rely on the foregoing authorization, agency, and limited power of attorney granted by you or a Signing Officer, as the case may be. You further acknowledge and agree, and shall ensure that each Signing Officer further acknowledges and agrees, that the PFM Service is not endorsed or sponsored by any Third Party accessible through the PFM Service. Notwithstanding the foregoing, this provision will not be deemed to in any way diminish your duties and responsibilities to personally access and review the External Accounts and to otherwise comply with the agreements in place with Third Parties holding those External Accounts, nor will any right of access to information you granted pursuant to this Agreement create any obligation on the part of the Financial Institution, Central 1, or the PFM Service provider to monitor or warn you of any unusual or unauthorized account activity on any Account or any External Accounts;
13. You acknowledge and agree, and shall ensure that each Signing Officer acknowledges and agrees, that use of the PFM Service and all information, products, and other content (including that of Third Parties) included in or accessible from the PFM Service is at your or the Signing Officer's sole risk, as the case may be. The PFM Service is provided on an "as is" and "as available" basis. The Financial Institution, Central 1, and the PFM Service provider expressly disclaim all warranties of any kind as to the PFM Service and all information, products, and other content (including that of Third Parties) included in or accessible from the PFM Service, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement;
14. You acknowledge and agree, and shall ensure that each Signing Officer acknowledges and agrees, that the Financial Institution, Central 1, and the PFM Service provider make no warranty that:
1.14.1. the PFM Service will meet your or the Signing Officer's requirements;
1.14.2. the PFM Service will be uninterrupted, timely, secure, or error-free;
1.14.3. the results that may be obtained from the use of the PFM Service will be accurate or reliable;
1.14.4. the quality of any products, services, information, or other material purchased or obtained by you or a Signing Officer through the PFM Service will meet your or the Signing Officer's expectations; or 1.14.5. any errors in the technology will be corrected;
15. You acknowledge and agree, and shall ensure that each Signing Officer acknowledges and agrees, that any material downloaded or otherwise obtained through the use of the PFM Service is done at your or the Signing Officer's own discretion and risk and that you or a Signing Officer, as the case may be, is solely responsible for any damage to your or the Signing Officer's computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you or a Signing Officer from the Financial Institution, Central 1, or the PFM Service provider through or from the PFM Service will create any warranty not expressly stated in this Agreement;
16. You agree, and shall ensure that each Signing Officer agrees, that none of the Financial Institution, Central 1, or the PFM Service provider, nor any of their affiliates, account providers, or any of their affiliates will be liable for any harms, whether direct, indirect, incidental, special, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses, even if the Financial Institution, Central 1, or the PFM Service provider has been advised of the possibility of such damages, resulting from:
1.16.1. the use or the inability to use the PFM Service;
1.16.2. the cost of getting substitute goods and services;
1.16.3. any products, data, information, or services purchased or obtained, or messages received or transactions entered into, through or from the PFM Service;
1.16.4. unauthorized access to or alteration of your or the Signing Officer's transmissions of data;
1.16.5. statements or conduct of anyone on the PFM Service;
1.16.6. the use, inability to use, unauthorized use, performance or non-performance of any Third Party site, even if the Third Party has been advised previously of the possibility of such damages; or
1.16.7. any other matter relating to the PFM Service;
17. You agree to protect and fully compensate the Financial Institution, Central 1, and the PFM Service provider and their affiliates from any and all Third Party claims, liability, damages, expenses, and costs (including, but not limited to, reasonable attorney fees) caused by or arising from your or the Signing Officer's use of the PFM Service, violation of this article, Personal Financial Management, or infringement, or infringement by any other user of the Account, of any intellectual property or other right of anyone; and
18. You agree, and shall ensure that each Signing Officer agrees, that the PFM Service provider is a Third Party beneficiary of the terms and conditions in this article, Personal Financial Management, with all rights to enforce such provisions as if the PFM Service provider were a party to the agreements that you have provided in this article, Personal Financial Management.
14. FOREIGN CURRENCY TRANSACTION - If You provide Instructions to conduct a Transaction that is denominated in a currency other than the currency of Your Account, and We accept the Instructions or Transaction, a conversion of currency is required. When a conversion of currency is made We may act as principal with You in converting the currency at rates established or determined by Us, affiliated parties, or through parties with whom We contract for foreign exchange services. In addition to applicable service charges, We and Our affiliates and contractors may earn revenue, commissions, or fees on currency conversions. You agree that such revenue, commissions or fees may be included in and charged as part of the exchange rate charged to You. The cost of currency conversion may not be known to You or precisely determinable in advance or until the amount of the Transaction is charged to Your Account. If currency conversions on this basis are not acceptable to You, You agree that You will not transact in foreign currency on Your Account, including withdrawing foreign currency or delivering any Instrument or processing any Transaction to Us for deposit in a currency other than the currency of Your Account. We agree to convert currency at commercially reasonable rates, including revenue, commissions, and fees charged in respect of the conversion.
When You purchase foreign currency from Us, in branch, the rate of exchange We charge You and any service charges You must pay will be disclosed or, alternatively, made available to You on request, at the time of the Transaction.
If You deposit Instruments or process a Transaction denominated in a currency other than the currency of Your Account, and We accept the Instrument or Transaction for deposit, You agree that We may convert the amount of the Instrument or Transaction to the currency of the Account using Our sell rate for the currency of the Instrument or Transaction in effect at the time the conversion is processed. If We have not established a sell rate for the currency of the Instrument or Transaction in the currency of Your Account, You agree that We may:
1. convert the funds for provisional credit to the currency of the Account using a commercially reasonable rate of exchange available from Third Parties to purchase the currency of the Account using the currency of the Instrument accepted for deposit, or to purchase a currency for which We have a sell rate and then to convert that amount to the currency of the Account at Our sell rate for that currency; and
2. for such Transactions, charge You a conversion fee, up to a maximum of 5% of the value of the Transaction, in addition to any other service charges You must pay. You also agree that if any Instrument or Transaction in a currency other than the currency of Your Account is accepted for deposit, such deposit is provisional and subject to reversal. If any such Transaction must be reversed, the process outlined above for conversion of Your deposits, will apply to conversions undertaken for return of funds, and that You may be charged additional fees, commissions and service charges, as part of that conversion. The amount charged to Your Account for return of funds may be different than the amount of the deposit. The risk of loss on such Transactions shall be borne by You without any right of recourse against Us, and without any right to recover any fees charged to You in respect of the original deposit.
When You conduct Transactions with a Mobile Device or at an ATM, or through a POS, in a foreign currency We receive a debit instruction initiated by You and which may be received by Us after processing through one or more international electronic networks that participate in the international payments system (the "Instruction"). The Instruction We receive may ask Us to pay a stipulated amount that may either be denominated in Canadian Dollars or in U.S. Dollars, regardless of the currency of Your Transaction with the Mobile Device, ATM or POS. The Transaction amount between You and Us will be the amount of Your Transaction, plus any fees by the owner of the ATM or POS, plus any revenue, commissions or fees of Third Parties that processed the Transaction or converted the foreign currency before it is received as a debit Instruction by Us. Foreign currency conversion completed by Third Parties occurs at rates that We do not set, and which may include revenue, commissions or fees of those Third Parties. More than one currency conversion may be completed by Third Parties before Your Instruction is received by Us. The amount ultimately charged to Your Account will at a minimum be the amount of the Instruction either in the currency of Your Account or U.S. Dollar value of the Instruction received by Us through the electronic network. If the Transaction is conducted on an Account denominated in Canadian Dollars and the Instruction is received in U.S. Dollars, the amount charged to Your Account will be the amount of the U.S. Dollar Instruction received by Us, converted to Canadian Dollars at Our sell rate for purchase of U.S. Dollars in effect at the time of the conversion. Our services charges and fees for Transactions on Your Account may be added to the Transaction in accordance with Our published service and fee brochure.
Currency conversions will be completed when and at rates in effect when the Transaction is processed by Us which may not be the same rate in effect when We complete Your Transaction.
15. STORAGE OF INFORMATION
1. CWB will collect, use and disclose personal information (as defined in the applicable personal protection legislation) in accordance with CWB's Privacy Policy, a copy of which can be obtained at www.cwb.com or at any CWB branch. CWB may contract with third parties or agents and Service Providers to collect, use, store, transfer or process personal information on CWB's behalf in connection with any services described in any of the agreements between CWB and you in relation to the Accounts. 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 policy of such websites. CWB makes 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 Services from such websites. CWB may, in its sole and unfettered discretion, delegate any duties or rights under this Agreement to agents (including, without limitation, third party sub-contractors), and CWB may change such agents and the manner in which their duties are assigned.
2. You understand that some of these third parties or agents may be located outside of Canada, and Business 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.
16. ADMINISTRATOR AND SIGNING OFFICER
1. CWBdirect Business: The Administrator. The individual(s) designated in this Agreement shall serve as your Administrator. Multiple Administrators may be appointed at any given time. You may add additional or change the current Administrator by completing the appropriate change request as required by CWB. By designating an individual as an Administrator, you understand that it is authorizing that individual to use the CWBdirect Business platform and all available Services including, without limitation, in respect of any funds of you which are trust funds. This means that the Administrator will have full access to all Account information available through CWBdirect Business and all available Services and will be entitled to carry out and approve Instructions through CWBdirect Business in respect of the Services on behalf of you. Without limiting the generality of the foregoing, the Administrator is authorized by you to: (i) have full use of and access to CWBdirect Business and all subscribed Services; (ii) have full access to review transactions and statements issued in your name; (iii) access to balances, interest rates, fees, payments, and all other information relating to loans by CWB to you; (iv) access all of your Accounts and obtain and review all relevant Account information; and (v) have full power and ability to delegate, appoint and remove Users (as outlined in Section 3 above).
2. CWBdirect Enhanced: The Signing Officers. The individual(s) designated in this Agreement shall serve as your Signing Officer(s). Multiple Signing Officers may be appointed at any given time. You may add additional or change the current Signing Officer(s) by completing the appropriate change request as required by CWB. By designating an individual as an Signing Officer, you understand that it is authorizing that individual to use the CWBdirect Enhanced platform and all available Services including, without limitation, in respect of any funds of you which are trust funds. This means that the Signing Officer will have full access to all Account information available through CWBdirect Enhanced and all available Services and will be entitled to carry out and approve Instructions through CWBdirect Enhanced in respect of the Services on behalf of you. Without limiting the generality of the foregoing, the Signing Officer is authorized by you to: (i) have full use of and access to CWBdirect Enhanced and all subscribed Services; (ii) have full access to review transactions and statements issued in your name; (iii) access to balances, interest rates, fees, payments, and all other information relating to loans by CWB to you; (iv) access all of your Accounts and obtain and review all relevant Account information; and (v) have full power and ability to delegate, appoint and remove Users (as outlined in Section 3 above).
3. You will provide CWB with: (i) prior notice of any person that you have appointed as an Administrator or Signing Officer in connection with a Service; (ii) confirmation that you have shared the terms of this Agreement and any applicable Services with such appointing person; and (iii) prior notice of any changes to such appointment. Each notice must include the name and contact information for the appointed person, and be in form and substance satisfactory to CWB. CWB has the discretion to accept, reject or terminate any person's appointment as Administrator or Signing Officer at any time. The appointment of a person or any change to an appointment will only become effective for the Services when implemented by CWB.
17. STATEMENTS
1. In addition to your regular Account statements, CWB 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. CWB's records will, in the absence of obvious error or as otherwise agreed by CWB in writing, be conclusive evidence of the information received by CWB and the transactions between CWB and you. The computer-generated or electronic records received or created by CWB will be admissible in a court of law and you consents to such admissibility and waives any defense you may have as to their admissibility.
18. INSTRUCTIONS
1. CWBdirect Business. To the extent permitted by CWB, Authorized Contacts (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 CWBdirect Business. All transactions or Instructions provided by any Authorized Contacts must, at all times, be in accordance with the terms set out in Agreement or in any applicable Service Schedule.
2. Telephone Assistance. In addition to the foregoing, Service Schedules may allow for CWB to accept Instructions in respect of some of the Services from Authorized Contacts by telephone. For greater certainty, CWB is not required to verify the identity of any Authorized Contact or the bona fides, correctness or validity of transactions. CWB may rely on any such telephone Instructions of the Authorized Contact or purporting to be given by or on behalf of you and CWB may treat such Instructions as fully authorized by you in writing and such Instructions shall be binding upon you. CWB may in its 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. CWB will not be liable for any delay, failure or refusal to act in any circumstance.
3. Electronic Communications. You agree that any electronic communications between you and CWB 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 CWB in relation to the Services. CWB shall be entitled to retain and store records, documentation and information respecting the Services in any manner that it determines in its sole discretion.
4. Sufficient Time for Instructions. You will ensure that all Instructions electronically given through the Services to CWB by you are received in sufficient time to permit CWB a reasonable opportunity to deal with them or as otherwise specified by CWB. Without limiting the generality of the foregoing, CWB is required to comply with payment system rules and regulations on clearing (including Payments Canada Rules), third party agreements and other matters that may prevent CWB from complying with your Instructions for payments or fund transfers if Instructions are not received within time frames required by such rules, regulations and agreements.
5. Reliance on Instructions. CWB may rely on any Instructions regarding the Services or other Instruction input from or which purport to be given by: (i) Authorized Contacts received through CWBdirect Business or CWBdirect Enhanced; or, (ii) Authorized Contacts or Authorized Signing Officers received in compliance with the applicable Service Schedule or with this Agreement. In all circumstances, CWB may treat any such 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. It is your responsibility to ensure that all information and Instructions provided to CWB are accurate and complete. Unless otherwise agreed to in writing, CWB has no obligation to verify any information provided by you and CWB shall be under no duty or obligation to inquire into or otherwise consider the correctness or validity of any Instruction. CWB will not be liable for any losses or damages that you may suffer or incur in relation to the Services from acting on Instructions sent through CWBdirect Business or CWBdirect Enhanced when CWB acted in good faith believing such person to be you, an Authorized Contact. CWB will act on all acceptable Instructions sent through CWBdirect Business and CWBdirect Enhanced or telephone as soon as it is reasonably practical to do so. You must confirm that CWB has received the Instructions as CWB is under no obligation to confirm receipt.
6. Refusal to Act on Instructions. CWB may, in its sole discretion, decline to act on any Instructions, either in whole or in part, when: (i) such Instruction is unclear or suspicious; (ii) such Instruction is provided with unsatisfactory verification of identity; (iii) such Instruction is not in accordance with the terms of this Agreement or any other agreements dealing with the operation of the Accounts or the Services; (iv) CWB has reason to believe that such Instruction may not be authorized by you; (v) such Instruction would violate any applicable law, rule or CWB's internal policies and procedures; (vi) monies in any Account are subject to a hold; or (vii) you do not have enough available funds in any Account (or available overdraft protection) or credit to cover the Instruction, in which case, CWB will not be liable for any delay, failure or refusal to act in any of the above-noted circumstances.
19. CHANGES TO AGREEMENT OR SERVICES AND NOTICES
1. Changes to Agreement. Other than as required by law, CWB 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 CWBdirect Business or CWBdirect Enhanced 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
2. Modification of Services. CWB may add, discontinue or modify any part or feature of the Services or CWBdirect Business or CWBdirect Enhanced at any time in its sole discretion. CWB may, but is not obligated unless required by applicable law, notify you of such change.
3. 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 their Account Agreement (and close accounts) as outlined in the Account Agreement, in which case, the termination provisions outlined therein shall prevail. CWB will not be liable for any Damages (as defined herein) or inconvenience that results from the withdrawal of your access to CWBdirect Business or CWBdirect Enhanced
4. Termination Without Notice. Notwithstanding Section 11.3, CWB may, immediately, terminate this Agreement without notice if you: (i) 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; (ii) become subject to proceedings for the dissolution, liquidation or winding up of its affairs; (iii) give notice of its intention to cease to carry on business; (iv) conduct or participate in a fraudulent, inappropriate or suspicious transaction using the Services; (v) fail to make any payment when due under this Agreement or under any other CWB agreement; (vi) have, in CWB's sole opinion, a material adverse change in its financial condition; (vii) 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 the opinion of CWB, have a material adverse effect; (viii) is in default or breach of any of the provisions of this Agreement, any Service Schedule or any other agreement between CWB and you; (ix) if any representation, warranty or agreement made by you in any agreement with CWB is breached by you or any certificate or statement of fact made by you to CWB or any other communication by you to CWB is found to have been incorrect or misleading on or as of the date made; or (x) if any provision of any agreement with CWB in relation to the Accounts or Service considered material by CWB is held by a court of competent jurisdiction to be unenforceable or if you allege that any such provision is unenforceable (i to x above are hereinafter collectively, a "Termination Event").
5. Upon or during a Termination Event, CWB may, in its sole option, immediately terminate any or all of this Agreement without notice of further action. CWB may, if it so chooses, continue to provide you with any one or more Services or with access to CWBdirect Business or CWBdirect Enhanced but, subject to applicable law, CWB 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 CWB's rights under the CWB agreements or otherwise.
6. Upon a termination hereunder (whether pursuant to a Termination Event or otherwise), you will immediately return to CWB (or destroy at CWB's request) all security devices, software, manuals, confidential information of CWB and other documentation, goods and materials provided to you in connection with its use of CWBdirect Business or CWBdirect Enhanced or the Services.
7. Acceleration. Upon any termination hereunder (whether pursuant to a Termination Event or otherwise), all debt of you to CWB 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 CWB.
8. Any notice that is required to be given by CWB under this Agreement may be given to you by: (i) a secure message posted on CWBdirect Business or CWBdirect Enhanced; (ii) a message posted on any CWB website; (iii) sent to your mailing address or facsimile last shown on CWB's records; or (iv) delivered in person to your place of business last shown on CWB's records.
9. Any notice required to be given by you under this Agreement may be given to CWB 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) or transmitted by facsimile to the CWB branch where your Accounts are held.
10. 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.
20. FEES AND CHARGES
1. 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 CWBdirect Business, CWBdirect Enhanced 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. CWB may amend the Pricing Arrangement or other fees and charges payable for the Services at any time in its sole discretion. CWB will provide notice of such pricing or fee change(s) to you by posting such change(s) or amendment(s) on CWB's website, by secure message on CWBdirect Business or CWBdirect Enhanced, 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.
2. Fees. You agree to pay to CWB when due and as may be set out in any Pricing Arrangement, fee Schedule, Service Schedule, CWB Agreements or other documents all amounts payable to CWB in connection with CWBdirect Business, CWBdirect Enhanced and the Services including all fees, charges, interest and applicable tax.
3. Out of Pocket Expenses. You further agree to pay any out-ofpocket or other expenses CWB incurs as a result of your request or in the course of providing any Service to you. These expenses include communication charges, transmission charges and transportation, training costs or delivery charges incurred by CWB.
4. Authority to Withdraw Fees. You will pay the specified fees to CWB for the Services. You authorize CWB but CWB is not obligated to debit any Account of you for any amounts due and owing by you to CWB 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.
5. Interest on Overdue Amounts. You will be liable to CWB for all amounts due and owing and/ or debited under this Agreement or in connection with any of the Services and agree that it will pay on demand any overdraft created from time to time in any Account of you resulting therefrom. You will also pay interest on the amount of any and all such overdrafts and on charges, fees and other amounts owing by you to CWB and not paid when due at the rate then applicable to overdrafts as established by separate agreement with CWB. If no such rate has been established, the highest rate then applicable to overdrafts from CWB to its customers will apply. If no rate or rates with respect to overdrafts have been established, you will pay interest on overdrafts at a rate of twenty-one percent (21%) per annum. All interest will be calculated and payable monthly, not in advance, both before and after demand, default and judgment.
6. Taxes. You agree to pay to CWB, upon demand, all sales and other taxes however designated or levied that are paid or payable by CWB based upon the Services provided under this Agreement or any Service Schedule.
7. Insufficient Funds. Notwithstanding anything contained in this Agreement or in any Service Schedule, in no circumstances shall CWB 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.
21. LIMITATION OF LIABILITY & INDEMNITY
1. Limitation of Liability. Notwithstanding any other provision hereof or any other document or agreement between CWB and you, neither CWB nor any of its 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 CWB's gross negligence or willful misconduct arising directly from the performance by CWB of its obligations under this Agreement and CWB 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 CWB or a Service Provider acting or refusing to act on any Instruction, communication, order, entry or email received by CWB 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 CWBdirect Business, CWBdirect Enhanced. Without in any way limiting the generality of the foregoing, neither CWB nor any officer or employee of CWB 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.
2. Under no circumstances will CWB 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 CWB is 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: (i) any operation or operational failure, delay, CWBdirect Business or CWBdirect Enhanced or Services unavailability including any hardware or software system failure or transmission and/ or communication system failure (regardless of cause); (ii) 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 CWB; (iii) any non-receipt or delayed receipt or receipt with errors or corrupted data or receipt in a format not acceptable to CWB or the Service Providers of information or data required to perform any obligation of CWB or any Service to be provided by CWB; (iv) CWB, in its discretion, declining to act upon any Instructions or information provided to it in accordance with this Agreement; (v) the failure or error of any other financial institutions, third party networks, communications providers, utility and their agents or any other similar third parties; (vi) mistakes, errors or omissions made by you or its Authorized Contacts in relation to their use of CWBdirect Business, CWBdirect Enhanced or any of the Services or for the fraudulent or unauthorized use of CWBdirect Business, CWBdirect Enhanced or the Services; and (vii) the circumstances outlined in this Agreement which CWB has indicated it will not be liable or responsible for or that you are responsible for including, without limitation, those set out in this Agreement in Sections 3, 4, 5, 6, 7 and 10.
3. Indemnity. You will indemnify CWB and its 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: (i) your use of CWBdirect Business, CWBdirect Enhanced and the Services; (ii) your (or any Authorized Contact's) breach of the terms and conditions of this Agreement; (iii) CWB acting or decided to act upon any Instruction or information given to CWB in accordance with this Agreement; (iv) any Termination Event (as defined in Section 11 above); (v) any willful misconduct or wrongful, fraudulent or negligent act or omission by you, your Authorized Signing Officers, Authorized Contacts or other representatives, or any breach by you, your Authorized Signing Officers, Authorized Contacts or other representatives of any agreement or other legal obligation to which you, your Authorized Signing Officers, Authorized Contacts or its other representatives are subject; (vi) any willful misconduct or wrongful, fraudulent or negligent act or omission of any third party where you voluntarily waive the use of or improperly uses the fraud protection and/ or security mechanism offered by CWB; (vii) any misrepresentation or inaccurate statement by or breach of any warranty by you, its Authorized Contacts, Authorized Signing Officers or its other representatives in any CWB agreements or in any other communication or agreement (written or oral) between you, Authorized Contacts, Authorized Signing Officers or other representatives and CWB; (viii) the enforcement by CWB 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 CWB; and (ix) providing any Services to you in accordance with CWB's 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.
4. Instructions and Information. You are solely responsible for the accuracy and completeness of all instructions and information furnished by you to CWB. CWB 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 CWB by you, its officers, employees or agents.
22. REPRESENTATIONS
1. No Representations or Warranties. Except as expressly provided in this Agreement or in the Service Schedule, CWB makes no representations or warranties, either express or implied, of any kind with respect to any CWB Online Business or Services or CWB's performance 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 CWB (nor any director, officer or employee of CWB) is bound to see the execution of any trust, whether express, implied or constructive, to which you or the funds may be subject.
2. Representations and Warranties by Business. You hereby represent and warrant that: (i) 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; (ii) the person(s) signing this Agreement for you are authorized to do so. At CWB's request, you will furnish manually certified resolutions (or similar proof) of authority to execute this Agreement; (iii) all information provided by you to CWB 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 CWB may require to provide any of the Services and you shall notify CWB promptly in the event any relevant information changes; (iv) if you are a corporate entity, it is duly formed, organized and existing in its jurisdiction of incorporation, duly registered in any of the jurisdictions in which it operates and is in conformity and compliance with the laws that govern you and its business activities; (v) if you are a partnership, it has been formed, existing and is registered as required under the laws of its jurisdiction of formation; (vi) if you are or represents a trust, the trust has been constituted under the laws of the Province of Alberta and has not been terminated; (vii) you are fully and properly authorized to execute this Agreement and is further authorized and able to perform the obligations and transactions described in this Agreement, any Service Schedule and in any other CWB Agreement; and (viii) 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.
3. Binding Obligation. This Agreement including applicable Service Schedules and all other documents and agreements entered into by you in favour of CWB 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.
4. Compliance. With Laws and Regulations. You and CWB will conduct their activities under this Agreement and under the Service Schedules and under all other CWB agreements in compliance with all applicable laws, statutes, rules, regulations, orders, treaties and guidelines including the rules of Payments Canada, anti-money laundering legislation and privacy legislation (both provincial and federal).
23. OTHER
1. Records. The records of CWB as to each use of Services and the transactions made on the Accounts of the undersigned shall be considered correct unless established to the contrary in accordance with the time limits for such corrections as outlined in other agreements between CWB and you in respect of your Accounts. All documentation, records and information relating to the Services will be maintained and stored by CWB in such form and manner as it determines in its sole discretion, and CWB is not responsible for retaining originals of any documents or instruments.
2. Prohibited Use and Compliance with Laws. You agree that it will, at all times, comply with any applicable laws or clearing rules in respect of CWBdirect Business, CWBdirect Enhanced or any Services. You further agree that it will not, at any time, use CWBdirect Business, CWBdirect Enhanced or any of the Services for any illegal, fraudulent, or defamatory activity or purpose and that it will not take any actions or fail to take appropriate actions that could reasonably or will undermine the security or integrity of the CWBdirect Business or CWBdirect Enhanced platforms or any Service.
3. Trust Accounts. The undersigned will advise CWB in writing of each Account that is a trust account. Unless CWB has been advised of any Account that is a trust account, you acknowledge that it will not, directly or indirectly, use CWBdirect Business or CWBdirect Enhanced to transfer funds between a trust account and non trust account.
4. Limits. CWB may set one or more limits in its sole discretion and such limits are subject to change without notice. Such limits may include: i) the amount that may be transferred between accounts; ii) the number of bill payments that can be made in one day; or iii) the maximum amount for each bill payment.
5. Not a Substitute for Other Agreements. This Agreement is in addition to and not in substitution for any other agreement between CWB and you with respect to the operation of any Account(s) and with respect to the Services.
6. Third Party Services. The provision of certain Services is dependent on CWB's ability to provide access to third party networks, systems or services. CWB may, in its own and absolute discretion, engage or change such Service Providers used to facilitate any part of a Service including, but not limited to, payment or clearing services, correspondents and electronic data processing service bureaus. When such Service Providers are engaged by CWB, CWB may disclose to such provider, subject to appropriate confidentiality arrangements as determined by CWB, any information it holds about you as is necessary to provide the Services.
7. Varying Availability. Not all services and features may be accessible or available for all Accounts, Services or CWBdirect Business or CWBdirect Enhanced at any given time.
8. Intellectual Property. This Agreement does not confer upon you or any of your Authorized Contacts or Authorized Signing Officers the right to use works, logos and trademarks contained on CWBdirect Business or CWBdirect Enhanced or any Service. Unless otherwise indicated, all trademarks, logos, texts or images are the property of CWB or their respective licensor.
9. 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.
10. Force Majeure. CWB 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 CWB 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.
11. 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.
12. Headings. Any heading contained in this Agreement is added for convenience only and does not change the meaning of any provision in this Agreement.
13. Assignment. CWB may assign its rights and obligations under this Agreement or under any Service Schedule at any time to a third party. If CWB chooses to do so, it may disclose information about you and the Services to anyone to whom CWB assigns its rights to provided they agree to maintain confidentiality in a manner similar to CWB. You may not assign any rights and obligations under this Agreement or under any Service Schedule without prior written consent of CWB.
14. Binding. This Agreement and any Service Schedule will benefit and bind the respective successors and permitted assigns of CWB and you.
15. 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.
16. Further Assurances. You shall forthwith, from time to time upon the request of CWB, make and execute all such additional documents, acts, matters and things as may be required by CWB in its 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 CWB or third party licenses or sublicenses that may be required in connection with certain Services.
17. Payment System Rules. You understand that in carrying out any of the Services, CWB will be subject to the requirements of the rules, guidelines, requirements and standards of various payment systems ("Standards") (including Payments Canada) and accordingly CWB may be unable to accept or process instruments or Instructions that do not comply with the Standards.
18. Entire Agreement. The CWB agreements form the entire agreement between you and CWB pertaining to the Services. This Agreement does not affect any rights that CWB may have in respect of any of the Accounts. There are no conditions, warranties, representations or other agreements between CWB 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 Online Services Agreement
1. Schedule to Cash Management Online Services Agreement.
This Canadian Western Bank Business Wire Services Schedule (the “Services Schedule [Wires]”) forms part of the Cash Management Online Services Agreement (the “Agreement”) between Canadian Western Bank (“CWB”) 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”).
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 personal computer or mobile 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 at CWB 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;
"Third Party" means any person, firm, corporation, association, organization or entity other than CWB.
“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 CWB, 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.
CWB makes 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 CWB’s 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. CWB will not verify the authority of any person sending Wire Instructions or Approvals, nor will be CWB 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 CWB is 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 anticipates 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 has created to properly route a Wire into a Beneficiary Account.
CWB and/or any Service Providers will, subject to this Service Schedule [Wires], act on and Release Wire Instructions once Approved. You acknowledge that CWB, 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, CWB, 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 CWB or any other financial institution to route the Wire to the Beneficiary Account.
7. Foreign Exchange Transactions
Wires may be denominated in: (i) Canadian dollars; (ii) U.S. dollars; or iii) 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) CWB 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 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 CWB or any Third Party), CWB 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, CWB 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) CWB 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 CWB 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 harmless CWB, its 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 CWB 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 CWB making available to you the Wire Services or the CWB Online Wires Platform, which includes CWB 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 granted by you to CWB.
10. Agency
You appoints CWB as agent for the purposes of sending Wires. Accordingly, any steps CWB takes on behalf of you 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 CWB may use the systems, networks, associations, financial institutions and other third parties for sending Wires that it determines in its sole discretion.
11. Correspondent Institutions
You acknowledge that in connection with any Approved Wire sent by CWB in accordance with this Service Schedule [Wires], CWB may utilize the services of other financial institutions (“Correspondent Institutions”) to act as agent on behalf of you. CWB 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
CWB has the right to refrain from Releasing or otherwise sending a Wire that may contravene (i) any law or regulation applicable to CWB, including but not limited to anti-money laundering or terrorist financing laws or regulations; or (ii) any of our internal risk management or other policies. CWB 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 Online Services Agreement
1 Application/Interpretation
1.1 Application: This Canadian Western Bank Corporate Remote Deposit Capture Services Schedule (the “Services Schedule [RDC]”) governs your use of the remote deposit capture service operated by Central 1 Credit Union (“Central 1”) and made available by Canadian Western Bank (“CWB”) to you (the “cRDC Service”).
1.2 Other Agreements: This Services Schedule [RDC] forms part of the Cash Management Online Services Agreement (the “Agreement”) between Canadian Western Bank (“CWB”) 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 parties agree that the terms and conditions of this Services Schedule [RDC] are in addition to, and supplement, all other agreements between CWB and you regarding CWB’s 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 CWB. The terms and conditions contained in this Services Schedule [RDC] are for the benefit of CWB, 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:
(a) “Authorized User” means an individual who is authorized by you to use the cRDC Service on behalf of you.
(b) “Captured Images/Data” means collectively: (i) images of the front and back of a Payment Item; and (ii) information regarding a Payment Item required by the cRDC Service.
(c) “CPA Rules” means the by-laws, rules, regulations and standards made under the Canadian Payments Act, RSC 1985, c C-21, as amended from time to time.
(d) “cRDC Device” means a device (comprised of hardware and operating system) used by an Authorized User to create Captured Images/Data and transmit the Captured Images/Data to the cRDC System.
(e) “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 established and revised by CWB from time to time, as set forth in the Documentation.
(f) “cRDC Software” means proprietary computer software required to access and use the cRDC Service.
(g) “cRDC System” means the infrastructure, technologies and services used by CWB and Service Providers to provide the cRDC Service.
(h) “the Business System” means the technology infrastructure and services (including cRDC Devices, peripherals, Internet connectivity and data storage devices) used by or on behalf of you to access and use the cRDC Service.
(i) “Documentation” means the electronic and paper-based documentation regarding the cRDC Service published and revised by CWB from time to time.
(j) “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.
(k) “Service Provider” means Central 1 and any other third party service provider engaged by CWB 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 CWB 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 CWB or a Service Provider will have the same effect as a physical delivery of the original paper Payment Item to CWB 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 cRDC 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 CWB (or a Service Provider) actually receives and processes the Captured Images/Data. You are solely responsible and liable for reviewing the data provided or made available by or on behalf of CWB regarding the receipt and processing of Captured Images/Data for Payment Items to verify that CWB (or a Service Provider) has 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 CWB in its discretion may refuse to process Captured Images/Data for a Payment Item and may require that you deliver the original paper Payment Item to CWB.
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 behalf of you 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 CWB or any other financial institution) and the original paper Payment Item is available if required by CWB. Unless CWB has expressly requested otherwise, you will securely destroy each original paper Payment Item immediately after the applicable retention period expires.
(c) Re-Delivery: Upon request by CWB, you will: (i) promptly physically deliver an original paper Payment Item to CWB; or (ii) use the cRDC Service to promptly create and transmit to CWB another set of Captured Images/Data for a Payment Item. You will not be in breach of this section 2.7(c) 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 CPA Rules) and in accordance with section 2.7(b).
2.8 Licenses and Consents:
(a) Captured Images/Data: You hereby grants and agree to grant to CWB 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 CWB 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 CWB and each Service Provider may disclose Captured Images/Data and related personal information to the extent required by applicable law (including CPA 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 CWB in accordance with CWB’s 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: CWB in its 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 CWB if you discovers 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) CPA 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 CPA 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, CPA 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 harmless CWB and each Service Provider 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 cRDC Devices), software (including cRDC Software) and services (including Internet connectivity) necessary for your use of the cRDC Service.
(b) cRDC Software License Agreements: You’ 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 CWB facilitates or assists 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 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 (h) 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 CWB 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 CWB and Service Providers.
4.5 Notifications: You will give prompt notice to CWB 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 becomes aware; (b) notices received by you that might adversely affect CWB or 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 becomes 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 ACKNOWLEDGES 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 CWB 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 THE CONTROL OF CWB AND 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 CWB AND SERVICE PROVIDERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM THOSE PROBLEMS.
(c) cRDC SOFTWARE: CWB 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) CWB AND SERVICE PROVIDERS MAY PERMANENTLY DELETE AND DESTROY ALL COPIES OF CAPTURED IMAGES/DATA PROMPTLY AFTER CWB 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 CWB 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 CWB OR 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 CWB 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 HARMLESS CWB AND EACH SERVICE PROVIDER AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS AND REPRESENTATIVES 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 CWB, A CONTROLLING FACTOR IN SETTING THE FEES (IF ANY) PAYABLE FOR THE cRDC SERVICE, AN INDUCEMENT TO CWB 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: Each of you and CWB may terminate your permission to use the cRDC Service for convenience effective immediately upon notice to the other party.
6.2 Suspension/Termination: CWB may immediately suspend your permission to use the cRDC Service without any notice or liability to you if CWB reasonably believes that you has 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 has 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: 1) use, copy, modify, or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 3) 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.
This Canadian Western Bank Customer Automated Funds Transfer Schedule (the “Services Schedule [CAFT]”) forms part of the Cash Management Online Services Agreement (the “Agreement”) between Canadian Western Bank (“CWB”) 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”).
Credit Files
1. The Service
CWB will cause your instructions to transmit funds to be effected through an electronic clearing system. The information required to complete each transmission shall be in the format specified by CWB.
2. Your Obligations
You must provide all of the required information for each transmission in advance of the effective date of transmission. You are responsible for all of the following:
2.1 Providing funds in the aggregate amount of the transmission on the effective date of the transmission;
2.2 Obtaining any agreements or consents from the payee(s) to process credits to their accounts; and
2.3 Paying to CWB fees applicable to the service. The fees may be revised by CWB at any time upon 30 days written notice to you. You hereby indemnify and save harmless CWB from all costs, expenses, claims and actions directly or indirectly incurred or suffered by CWB as a result of the use by you of the services herein, except for damages suffered by reason of the CWB's gross negligence or willful misconduct.
3. CWB Obligations
3.1 CWB shall provide you with an electronic process that allows Direct Deposits to flow through the clearing system.
3.2 As soon as any Direct Deposit is charged to the CWB through the Clearing Arrangement, the CWB shall debit the account of the Client in the amount of the Direct Deposit and shall only be required to re-credit an amount if such amount is re-credited to CWB. If an amount re-credited is subsequently recharged to CWB, CWB shall have the right to again debit the account of you with the amount.
4. 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. CWB is not liable to you or any third party for any damages resulting from non-receipt of funds by payees on the dates requested, whether as a result of electronic clearing system failure, malfunction, delay, or other failure; or the loss of data reports, documents or other productions while not in CWB's possession; or any delay failure of performance, expense or inconvenience from causes beyond control of CWB; or incorrect or improper payment to any person arising out of the processing of any transfer or entry under this Services Schedule [CAFT] except where loss or damage results from CWB's gross negligence or willful misconduct. CWB's liability to you are 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. CWB is not responsible for errors resulting from incorrect data received from you.
5. Termination
5.1 This Services Schedule [CAFT] may be terminated by either party upon giving the other party 30 days written notice.
5.2 Notwithstanding the provisions of Section 5.1, this Services Schedule [CAFT] may be terminated by CWB at any time without notice, if the Client fails to have funds available for settlement of Direct Deposits Debits, or is in breach of its obligations under this Services Schedule [CAFT].
6. Credit Risk
If deemed necessary by CWB in its sole discretion, a full credit analysis may be conducted on credit files and the client must fall within CWB's normal lending requirements.
7. You authorize CWB to debit an account designed by you for all sums to be paid to CWB pursuant to this Services Schedule [CAFT] or for multiple accounts, authorize CWB to debit the accounts listed in the Schedule of Accounts in Form 4164. Where you are acting for third parties and has listed their accounts in the Schedule of Accounts in Form 4164, you represent and warrant to CWB that such third parties have taken all corporate or other steps required by them to approve this Services Schedule [CAFT] and have delegated signing authority to you to sign this Services Schedule [CAFT] and to deal with CWB on their behalf in accordance with this Services Schedule [CAFT], as if they had individually signed it themselves.
Debit Files
1. The Service
CWB or CWB's Service Provider agree to process direct deposits and PADs through the Clearing System, operated by the Canadian Payments Association (“CPA”).
2. Your Obligations
2.1 You hereby warrant and guarantee to CWB that each of its clients (the “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 by a written authorization in a form complying with CPA Rules authorizing a 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 assume all liability for ensuring that the person(s) signing a Payor's authorization (the “Payor's PAD Agreement”) is a valid signing authority for the Payor's account.
2.2 You will, prior to issuing PADS against a Payor's account, inform that Payor of the recourse, notification, and all other provisions of CPA Rules relevant to Payors. Where possible you will provide each Payor with a copy of the Payor's PAD Agreement signed by them.
2.3 You will obtain the 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.
2.4 You agree to make available for inspection, within a reasonable time, upon the request of the Payor or CWB the Payor's PAD Agreement of the Payor for whom a PAD has been issued.
2.5 You agree to hold CWB harmless and to indemnify CWB against any and all loss, costs, fees, damages, expenses, liabilities, claims, suits and demands whatsoever that CWB or any other financial institution many suffer, incur or be under that many be made or brought against CWB or any other financial institution by reason of or in any way arising out of the action in drawing and issuing any debit issued by you, except where such loss, costs, fees, damages, expenses, liabilities, claims, suits or demands result from erroneous information provided or an error committed by CWB or any processing financial institution.
2.6 You agree to hold CWB harmless and to indemnify CWB against any liability for any delay, damage, penalty, cost, expense or inconvenience to CWB or any other person resulting from failure on the part of CWB to perform any of the services herein contemplated by reason of any cause beyond CWB's control.
2.7 You agree to be solely responsible for the accuracy and completeness of all information provided to CWB and CWB will not be responsible in any way for errors resulting from the inaccuracy or incompleteness of any information provided to CWB.
2.8 You agree to indemnify CWB for all amounts paid in error by CWB or any other financial institution in respect of PADs being credited or debited by CWB or any financial institution in error, pursuant to any direction from you whatsoever.
2.9 You agree to reimburse CWB or any other financial institution for payment of any claim made by a Payor, in accordance with CPA Rules. 2.10 You agree to abide by all relevant provisions of the Canadian Payments Act and all related by-laws, rules and standards in force from time to time as they apply to PADs.
2.11 You shall provide all of the required information for each transmission three (3) clear business days in advance of the effective date of transmission.
2.12 You shall not be liable to CWB and/or any other person who may claim through CWB for any delay, damage, penalty, cost, expenses or inconvenience to CWB to any other such person resulting from failure on your part to perform any of the services herein contemplated by reason of any cause beyond your control.
2.13 You undertake and agree to reimburse CWB and/or any Processing Member, as defined in the CPA Rules for payment of claim made by a Payor in accordance with CPA Rules. This Services Schedule [CAFT] may be terminated by CWB or you provided that written notice of such termination is given by the terminating party to the other party not less then ten (10) days prior to the date upon which such termination is to take effect. Notwithstanding any such termination, the provisions of CPA Rules and the indemnification provisions of this Services Schedule [CAFT] shall continue to remain in full force and effect with respect to any PAD drawn and issued or any other obligation of CWB in accordance with the provisions of the Services Schedule [CAFT] prior to the day upon which such termination takes effect.
2.14 You shall accept liability for any interest claim associated with the return of a PAD for the reason that no Payor's PAD Agreement existed between you and the Payor with respect to the returned PAD.
2.15 This Services Schedule [CAFT] may not be assigned by you, whether directly or indirectly, by operation of law, change of control or otherwise, without prior written consent of CWB.
2.16 You undertake and agree to: a) accept and act on any notice of change of a Payor's payment routing information that it receives from CWB and that was provided to CWB by the Payor's Processing Member pursuant to the CPA Rules that does not involve changing that Processing Member; and b) deem such notice of change to be the Payor's authorization to change its relevant payment routing information, provided that CWB shall be responsible to the Payee only for the accuracy of information provided in any such notice of change that it provides to the Payee.
2.17 You will provide a minimum of ten (10) days written notice to each payor in advance of the next PAD, where your name has changed.
2.18 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.
2.19 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.
3. Bank Obligations
3.1 CWB shall provide you with an electronic process that allows PADS to flow through the Clearing System.
3.2 As soon as any PAD is credited to CWB under the Clearing Systems, CWB shall credit the Account of the Client in the amount credited to it. CWB shall be entitled to debit any such amount if such amount is debited to CWB under the Clearing System.
4. You acknowledge receipt of the following from CWB: a copy of the CAFT User Guide, a copy of the CPA Rules, and copy of a sample PAD Agreement. You also acknowledge that they fully understand its/his/her responsibilities when entering transactions into the Clearing System.
5. Limits of Liability
You acknowledge that the completion of transmissions subject to availability of access to the electronic clearing system and is also subject to down time of the clearing system. CWB is not liable to you or any third party for any damages resulting from failed transactions on the dates requested, whether as a result of electronic clearing system failure, malfunction, delay, or other failure; or the loss of data reports, documents, or other productions while not in CWB's possession; or any delay failure of performance, expense, or inconvenience from causes beyond control of CWB; or incorrect or improper payment to any person arising out of the processing of any transfer or entry under this Services Schedule [CAFT] except where loss or damage results from CWB's gross negligence or willful misconduct. CWB's liability to you are 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. CWB is not responsible for errors resulting from incorrect data received from you.
6. Termination
6.1 Either party may terminate this Services Schedule [CAFT] on not less than thirty (30) days written notice to the other party prior to the date the termination is to take effect. Notwithstanding any such termination, the provisions of this Services Schedule [CAFT] and the provisions of the CPA 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 [CAFT] prior to the day that the termination takes effect and until such time as all such outstanding transactions have been posted to your Account. You also agree that subject to the expiry of the termination notice period, upon receipt by you of any communications from a Payor instructing the Payor to cease issuing PADs or otherwise revoking a Payor's PAD Agreement, you shall use best efforts to cancel the PAD for the next business, billing or processing cycle but shall within not more than thirty (30) days from the notice cease to issue any new PADs against that Payor and not issue any further PADs against that Payor unless and until the Payor provides you with a new Payor's PAD Agreement.
6.2 Notwithstanding the provisions of Section 5.1, this Services Schedule [CAFT] may be terminated by CWB at any time without notice, if you are in breach of its obligations under this Services Schedule [CAFT].
7. You authorize CWB to credit a certain (to be provided by you) for all sums pursuant to this Services Schedule [CAFT] or for multiple accounts, authorize CWB to credit the accounts listed in the Schedule of Accounts in Form 4164. Where you are acting for third parties and has listed their accounts in the Schedule of Accounts in Form 4164, you represent and warrant to CWB that such third parties have taken all corporate or other steps required by them to approve this Services Schedule [CAFT] and have delegated signing authority to you to sign this Services Schedule [CAFT] and to deal with CWB on their behalf in accordance with this Services Schedule [CAFT], as if they had individually signed it themselves.
PFM SCHEDULE FOR CONSENT AND DISCLOSURE FOR PFM SERVICE ("PFM SPECIAL TERMS")
1. ACCEPTANCE OF PFM SERVICE SPECIAL TERMS - You acknowledge Your acceptance of these PFM Special Terms such that they form and are part of this Agreement — Small Business Accounts (the "Agreement"). The Financial Institution does not offer Direct Services for Small Business Accounts other than in accordance with these terms and conditions.
2. PERSONAL FINANCIAL MANAGEMENT ACCOUNT LINKING CONSENT - You understand that the Personal Financial Management tool and account linking service, defined in the Agreement as the "PFM Service", is being offered through Your Financial Institution in coordination with Central 1 Credit Union ("Central 1") and by Yodlee Inc. ("Yodlee") and that it is an express requirement of Yodlee that if You wish to subscribe, access, or use the PFM Service that You must consent to amendments and incorporation of certain terms to the Agreement with the Financial Institution as more particularly set forth in the Mandatory Provisions for Customer Agreement as set forth in the Schedule I below, (the "Mandatory Provisions"). You understand that subscription to the PFM Service, whether by linking Accounts at the Financial Institution alone or with External Accounts at Third Party institutions will require that You share certain otherwise confidential and personal information to engage the PFM Service.
3. PFM DISCLOSURE OF ACCESS CODE AND CONFIDENTIAL INFORMATION TO LINKED ACCOUNTS - You authorize the Financial Institution, Central 1, and their respective agents, representatives, and service providers, (collectively referred to solely for purposes of this PFM Special Terms as the "F.I. Affiliates") as well as Yodlee, to collect, use, and disclose Your personal information, including Your personal access codes, in order to link the External Accounts to Your Account with the Financial Institution, and periodically access the External Accounts to update Your personal information and to perform data analytics on all linked accounts to present information and reports to You and make available to You and Your Financial Institution a personal financial management summary of all of Your linked accounts and transactions thereon. Notwithstanding the foregoing, this provision shall not be deemed to in any way diminish Your duties and responsibilities to personally access and review the External Accounts and to otherwise comply with the agreements in place with Third Parties holding those External Accounts, nor shall any right of access to information granted by You pursuant to this Agreement create any obligation on the part of the Financial Institution, Central 1, or the PFM Service provider to monitor or warn You of any unusual or unauthorized account activity on any Account or any External Accounts. You understand that the institutions holding Your External Accounts may prohibit disclosure of Your personal access codes, and that it is Your responsibility to confirm that Your personal access codes can be disclosed to Yodlee for the purpose of linking the External Accounts. This will not be confirmed by Us, the F.I. Affiliates, or Yodlee.
4. PFM SERVICE DISCLAIMER - You confirm that You are permitted to link Your External Accounts, and You accept all risk associated with the linking of Your Financial Institution Account to Your External Accounts, including all risk associated with disclosure of Your personal access codes. You agree and acknowledge that the Financial Institution or any F.I. Affiliate is not responsible or liable for any loss, harm, or damage, of any kind, related to or arising from linking Your Financial Institution Account with Your External Accounts, or arising from disclosure of Your personal access codes for purposes of linking Your External Accounts, to the extent permitted by law, subject to the Financial Institution or F.I. Affiliate being liable for the consequences of their own act and that of their representatives.
5. MARKETING CONSENT FOR PFM SERVICE - You understand that if You have previously provided to the Financial Institution a marketing consent to receive promotional offers, then the Financial Institution, and its agents, representatives, and service providers will use the information from Your linked accounts to provide promotional and marketing information to You.
6. UNSUBSCRIBE FROM PFM SERVICE - You can withdraw Your consent for the collection, use, and disclosure of Your personal information at any time by contacting the Financial Institution, at [mailing address] or [telephone number, email address and website address]. If You withdraw Your consent, the Financial Institution may no longer be able to provide certain services, including, but not necessarily limited to PFM Services. You understand that certain additional integrated services offered by the Financial Institution may no longer be available.
7.ASSET/LIABILITY CONSENT - YOU UNDERSTAND THAT THE PFM SERVICE CAN KEEP TRACK AND PROVIDE YOU WITH COMPREHENSIVE SPECIFIC ANALYSIS OF YOUR FINANCIAL SITUATION ONLY IF YOU KEEP SUCH INFORMATION COMPLETE AND CURRENT AND THAT IF YOU DO NOT DO SO, THAT THE REPORTS AND ANALYTICS PERFORMED AS PART OF THE PFM SERVICE WILL BE INCOMPLETE AND MAY CONTAIN ERRONEOUS INFORMATION. YOU AUTHORIZE THE FINANCIAL INSTITUTION AND THE F.I. AFFILIATES TO COLLECT, USE, AND DISCLOSE YOUR PERSONAL INFORMATION IN ORDER TO ADD, MODIFY, OR DELETE REFERENCE TO THE ASSET(S) OR LIABILITY(IES) TO YOUR ACCOUNT WITH THE FINANCIAL INSTITUTION, WHETHER IN THE FUTURE OR THE PAST. YOU UNDERSTAND AND AGREE THAT YOU ARE RESPONSIBLE FOR KEEPING YOUR ASSET AND LIABILITY INFORMATION CURRENT.
SCHEDULE I - MANDATORY PROVISIONS FOR CUSTOMER AGREEMENT
1. PROVIDE ACCURATE INFORMATION - You, the end user, agree to provide true, accurate, current and complete information about yourself and your accounts maintained at other web sites and you agree to not misrepresent your identity or your account information. You agree to keep your account information up to date and accurate.
2. PROPRIETARY RIGHTS - You are permitted to use content delivered to you through the PFM Service only on the PFM Service. You may not copy, reproduce, distribute, or create derivative works from this content. Further, you agree not to reverse engineer or reverse compile any of the PFM Service technology, including, any Java applets associated with the PFM Service.
3. CONTENT YOU PROVIDE - You hereby grant to the Financial Institution and its service providers, including Central 1 and Yodlee Inc. (collectively, "Service Providers") a license to use any information, data, passwords, materials or other content (collectively, "Your Content") that you provide through or to the PFM Service for the following purposes:
a) to provide the PFM Service to you;
b) to provide you with access to Your Content through other similar services provided by Yodlee Inc. to other financial institutions; and
c) to provide those other financial institutions with information regarding all of the accounts that you have registered with the PFM Service so that they may use the information to provide or offer additional or complementary services to you (collectively, the "Permitted Purposes").
The Financial Institution and Service Providers may use, modify, display, distribute and create new material using Your Content for the Permitted Purposes. By submitting Your Content, you automatically agree, or promise that the owner of Your Content has expressly agreed, that, without any particular time limit and without the payment of any fees, the Financial Institution and Service Providers may use Your Content for the Permitted Purposes. As between the Financial Institution and Service Providers, the Financial Institution owns your confidential account information.
4. THIRD PARTY ACCOUNTS - By linking an External Account to the PFM Service, you authorize the Financial Institution and Service Providers, on your behalf, to access the applicable Third Party site to register the account for use by you in connection with the PFM Service and to retrieve data regarding the account for use by you as part of the PFM Service.
For the foregoing purposes, you hereby grant to the Financial Institution and Service Providers a limited power of attorney, and you hereby appoint each of the Financial Institution and Service Providers as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name, place and stead, in any and all capacities, to access Third Party sites, servers or documents, retrieve information, and use your information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN THE FINANCIAL INSTITUTION OR SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM A THIRD PARTY SITE, THE FINANCIAL INSTITUTION AND SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY THAT OWNS OR OPERATES THE THIRD PARTY SITE. You agree that Third Party account providers and site operators will be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. You understand and agree that the PFM Service is not endorsed or sponsored by any Third Party account providers accessible through the PFM Service.
5. DISCLAIMER OF WARRANTIES - YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE PFM SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE PFM SERVICE IS AT YOUR SOLE RISK. THE PFM SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE FINANCIAL INSTITUTION AND SERVICE PROVIDERS EACH EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE PFM SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE PFM SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. THE FINANCIAL INSTITUTION AND SERVICE PROVIDERS MAKE NO WARRANTY THAT:
i. THE PFM SERVICE WILL MEET YOUR REQUIREMENTS;
ii. THE PFM SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
iii. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PFM SERVICE WILL BE ACCURATE OR RELIABLE;
iv. THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PFM SERVICE WILL MEET YOUR EXPECTATIONS; OR
v. ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PFM SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE FINANCIAL INSTITUTION OR A SERVICE PROVIDER THROUGH OR FROM THE PFM SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
6. LIMITATION OF LIABILITY - YOU AGREE THAT NEITHER THE FINANCIAL INSTITUTION NOR ANY SERVICE PROVIDER NOR ANY OF THEIR AFFILIATES, ACCOUNT PROVIDERS OR ANY OF THEIR AFFILIATES WILL BE LIABLE FOR ANY LOSS, DAMAGE OR OTHER HARMS, WHICH LAWYERS AND COURTS OFTEN CALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF THE FINANCIAL INSTITUTION OR THE SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM:
a) THE USE OR THE INABILITY TO USE THE PFM SERVICE;
b) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES;
c) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE PFM SERVICE;
d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
e) STATEMENTS OR CONDUCT OF ANYONE ON THE PFM SERVICE;
f) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY ACCOUNT PROVIDER SITE, EVEN IF THE FINANCIAL INSTITUTION OR THE SERVICE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES; OR
g) ANY OTHER MATTER RELATING TO THE PFM SERVICE.
7. INDEMNIFICATION - You agree to protect and fully compensate the Financial Institution and each Service Provider and their affiliates from any and all Third Party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorney's fees) caused by or arising from your use of the PFM Service, your violation of these terms or any infringement, by you or any other user of your Account, of any intellectual property or other right of anyone.
8. YODLEE - You agree that each Service Provider is a Third Party beneficiary of the above provisions, with all rights to enforce such provisions as if the Service Provider were a party to this Agreement.
I have read, understood and agree to be bound by this Agreement.