Service Terms and Conditions - Wire Portal

1.Introduction

These FX Live Foreign Currency/Wires Service Terms & Conditions (“Agreement”) govern Client’s use of Bank’s FX Service for foreign wire transfer requests. This Agreement, together with the Treasury Management Services Master Agreement between Client and Bank (the “Master Agreement”), and any additional manuals, schedules, instructions and authorization forms provided in connection therewith, sets forth the terms and conditions for the FX Service.  FX is a “Service” within the meaning of the Master Agreement, and this Agreement is a “Service Terms & Conditions” within the meaning of the Master Agreement.   
 
Mandatory arbitration, indemnification, limitations of liability, and additional terms, including Bank’s right to audit Client, contained in the Master Agreement, apply to the Service provided herein.

2.Definitions

Unless otherwise defined herein, capitalized terms have the meanings provided in the Master Agreement.
“FX Request”: Instructions from Client for a transfer of funds to a specific account or beneficiary or to amend or cancel prior instructions.
 “FX Site”: The designated web site operated by a Service Provider and made available to Client under the terms of this Agreement.
 “FX” or the “Service”: The Treasury Management Service provided hereunder.

3.Process

Client may authorize FX Requests from Accounts to be executed in foreign currencies through the FX Site. Client shall deliver each FX Request in accordance with the requirements of this Agreement and applicable Schedules. Client will enter the transaction details and commit to the rate and execute the transaction. Once Client commits to the rate, Client is responsible to Bank for the amount of the transaction, even if Bank is unable to complete it as a result of failure of the confirmation procedure.  Bank must approve the FX Request as provided in Section 7(a) before the wire transfer will be completed.  Bank will post the transaction the same Business Day at 3:30 p.m., as long as the FX Request is funded and confirmed. An FX Request may only be initiated from a location physically within the United States.  Client may not re-sell, access, or subcontract the Service to or for any other person. 

4.Client’s Responsibilities

Client shall not initiate any FX Request that would violate the economic sanctions administered by the U.S. Treasury’s Office of Foreign Assets Control (OFAC).
Client must have Available Funds on deposit in the Account(s) sufficient to cover Client’s payment obligations for the Service.  Client shall pay Bank on the date on which Client commits to the transfer of funds pursuant to an FX Request.  For purposes of satisfying Client’s obligation to pay such amount and any other payment obligation, Bank may, but is not required to, consider any overdraft line of credit or other arrangement Client may have with Bank. If a conflict occurs regarding the applicable Account balance, Bank’s records will be controlling for the processing of any FX Request. 

5.Currency Conversion

The Service permits Client to initiate wire transfers in currencies other than U.S. dollars (a “Foreign Currency”), by either specifying a transfer amount in a Foreign Currency or by specifying an amount in U.S. dollars to be converted into a Foreign Currency.  The conversion rate used to convert U.S. dollars into the Foreign Currency will be the spot rate offered by Bank at the time the FX Request is committed to by Client.  Client fully assumes the risk that rates may change after a wire transfer is requested by Client.  The rate offered by Bank to Client may not be the same rate that is available to Bank in the interbank or other market, and Bank or its Service Providers may retain any spread between the rates obtained by them and the rates offered to Client.

6.Security and Access

a)Security Procedures.  The Security Procedures consist of the use of access credentials and the specific designation of authorities for Authorized Agents in order to make an FX Request.  In addition, Client will designate one or more Confirming Agents who will be called back by Bank for confirming authorization before the FX Request is executed. No FX Request will be approved by Bank until a call-back confirmation has occurred. Client stipulates that the Security Procedures are a commercially reasonable method of providing security against unauthorized payment orders.  Use of the Security Procedures and Client’s agreement to the Security Procedures is a material part of the inducement for Bank to provide the Service on the terms set forth herein.
b)FX Request Authorization. Client will execute a Foreign Exchange Authorization with Bank’s Service Provider for the purposes of naming Authorized Agents and Confirming Agents.  Client shall promptly update such designations, and Client is responsible for all such designations until they are updated by Client with sufficient time for Bank to act pursuant to such updates. Client represents and warrants that each Authorized Agent is authorized to act on behalf of Client to the extent selected on the FX Site, and that Bank may rely on the acts of any such Authorized Agent as the binding acts of Client, provided that such acts are within the authority of such Authorized Agents as selected on the Foreign Exchange Authorization.
c)Compliance with Security Procedures.  If an FX Request (or an FX Request for cancellation or amendment of a Wire Transfer) received by Bank purports to have been transmitted or authorized by Client, it will be deemed effective as Client’s FX Request and Client shall be obligated to pay Bank the amount of such Wire Transfer even though the FX Request was not authorized by Client, provided Bank accepted the FX Request in good faith and acted in compliance with the Security Procedures with respect to such FX Request.  

7.Bank’s Responsibilities

a)Approval of FX Requests.  Bank will approve an FX Request and so notify its Service Provider to execute the FX Request after (i) receipt of notice of the FX Request, (ii) completion of the call-back confirmation procedure and (iii) confirmation of availability of funds in the Account.   In order to be processed on a same-day basis, Bank must receive FX Requests on a Business Day no later than the deadline times posted by Bank from time-to-time.  Any FX Request received after that time will be processed on the next Business Day. In cases where one or multiple FX Requests result in an order against uncollected funds, Bank may, in its sole discretion, process FX Requests in any order subject to the availability of funds within an Account.  Bank will contact Client when transfer requests exceed an Account’s collected funds balance.
b)Rejection of FX Request; Notices and Instructions. Bank may reject any FX Request which exceeds the collected and available funds on deposit in the Account or may make an offsetting reversal if a debit is made before Bank ascertains there are not sufficient Available Funds on deposit in such Account.  Additional terms and conditions contained in the Account Agreement may apply.  Bank may reject an FX Request which does not conform in form and substance with the requirements of the Master Agreement, this Agreement, or any applicable Schedule. Bank may reject an FX Request, the authenticity of which Bank has been unable to verify through the use of the Security Procedures. 
c)Exposure Limits.  Bank may establish exposure limits for Client as provided on Schedule A and may change such limits from time-to-time in its sole discretion.

8.Inconsistent Name and Account Number

When Client provides Bank with a name and account number in connection with a FX Request, unless otherwise required by law, payment may be made solely on the basis of the account number even if the account number identifies a beneficiary different from the beneficiary named by Client.  Client furthermore agrees that Client’s obligation to pay the amount of the Wire Transfer is not excused in such circumstances.  Bank shall not be responsible for any delay arising out of Bank’s attempt to reconcile inconsistencies between name and account number, or otherwise investigate suspected irregularities.

9.Risk of International Wire Transfers

 From time-to-time, Bank experiences various difficulties in transferring funds to certain countries.  Those difficulties include (but not by way of limitation): (a) excessive delay in applying funds; (b) incorrect application of funds; (c) disappearance of  funds; (d) excessively slow response to inquiries; or (e) government restriction on the transfer of such funds. In addition, countries and their subdivisions where the recipient is wired funds charge transfer taxes and other transfer fees that reduce the amount received. Client hereby acknowledges and assumes any expense in connection with such transfers which may be incurred by Bank in addition to normal and customary charges.  Client is obligated to comply with all laws relating to the transfer of funds for foreign countries, individuals, or agencies. Noncompliance may result in the delay of Fx Requests, fines equivalent to a percentage of the principal or confiscation of the entire principal amount of the transfer if an attempt is made to transfer funds to a sanctioned individual, agency and/or country.

10.Limit of Liability

Without limiting the generality of the Limit of Liability provisions contained in the Master Agreement, Bank is not liable for: (a) any ambiguity or inaccuracy in a Client FX Request; or (b) Client’s inability to contact or access the FX Site or to remain connected to the FX Site via the Internet.

11.Software Sublicense

a)This section applies to all FX Trading Services Software that Bank provides to Client after Client execution of this Agreement, unless Bank provides Client a separate license agreement for specific Software (including a “click‑wrap” Software license Client may obtain by downloading from the FX Site).  Notwithstanding anything to the contrary in this Agreement, the software licenses granted to Client under this Software License section are governed by and shall be interpreted according to the laws of the State of Nebraska without reference to its principles of conflicts of law.
b)For the FX Trading Services Software Bank provides to Client, Bank grants Client a non‑exclusive, non‑transferable sublicense for the use of that Software and its related Materials while this Agreement is in effect.  Each license is granted solely for use in object code form only in connection with the Service.  Client and its respective employees, agents and contractors may use the Software only for purposes of using or accessing the Service.
c)The Software, its source code, the operating procedures and all copyright, patent, trademark, trade secret and other rights in them are and will remain the exclusive property of Bank’s licensors.  Client will secure and protect the Software (including all copies) in a manner consistent with the maintenance of the licensor’s rights.  In order to protect those rights, Client will reproduce and incorporate copyright notices and all other proprietary legends prescribed by Bank in any permitted copies.  Client may not remove, obscure or otherwise tamper with or alter any such notices or legends affixed to or otherwise contained in the Software or related Materials or copies.  Client will also take appropriate action to instruct and obligate its representatives who are permitted access to the Software (including copies) to comply with its obligations to protect the Software.
d)Client may not (i) sell, assign, transfer, license, sublicense or publish the Software or copies of the Software or (ii) disclose, display or otherwise make available the Software or copies thereof to third parties without Bank’s express written approval.
e)Client may not copy or allow anyone else to copy the Software or operating procedures, except that Client may make a reasonable number of copies for backup, testing, maintenance, training and archival purposes.  Client may not electronically distribute, or allow anyone else to electronically distribute, Software except from the network server on which it is installed to workstations on that network. 
f)Client may not alter, repair, modify or adapt any Software, including, but not limited to, translating, reverse engineering, decompiling, disassembling or creating derivative works from them.  Client acknowledges that the Software may contain open source software. 
g)The license to Software will terminate automatically if Client breaches a material term of the license, or if Bank ceases to provide the Service to Client.  In addition, in the event of a breach of the confidentiality obligations in the Master Agreement with respect to the Software, Bank or its licensor may seek any remedy provided by law or equity.

12.Limited Warranty/Disclaimers

a)Client acknowledges that the Software has not been produced to meet its specific requirements and has not been tested in every possible combination and operating environment.  Client is responsible for satisfying itself that the Software is satisfactory for its purposes.
b)Client further understands and agrees that Bank makes no representation concerning the completeness, accuracy, operation or performance of the Software or its compatibility with any hardware.  Client acknowledges that the operation of the Software may not be uninterrupted or error‑free.
c)The Service Provider has warranted to Bank and Bank warrants to Client that the Service will substantially conform to the documentation provided for it for a period of sixty (60) days after delivery to Client provided that: (i) the Services are used by Client in strict compliance with the terms of this Agreement and the related Materials, (ii) the Software is not modified in any way by Client and (iii) Client promptly notifies Bank and reproduces for Bank any defects, errors or bugs in the Service.  Bank will use reasonable efforts to correct or work around any Software errors reported by Client or, at its discretion, but in any event if its efforts are unavailing, Bank will accept return of the Software and refund any license fees paid by Client.
d)Client agrees that the foregoing is its sole and exclusive remedy for breach of warranty and Bank’s sole obligation in connection with the performance or operation of FXLite.
e)Except as specifically stated herein, Bank makes no representation or warranty, express or implied, written or oral, and, to the full extent permitted by law, disclaims all other warranties including, but not limited to, the implied warranties of merchantability, noninfringement and fitness for a particular purpose, regarding the Service, the Software, and the operating procedures.   To the extent permitted by applicable law, and except as otherwise provided in this section, Bank will not be liable for damages of any kind arising out of the use of, or inability to use FXLite.
f)Client agrees that the United Nations Convention on the International Sales of Goods and, to the maximum extent possible, the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as enacted by any State, will not apply to the provision to Client or its use of any Software or of the Service.

13.Fees

Fees and charges for Client’s use of the Service are disclosed on Bank’s Treasury Management Fee Schedule. Bank may change such fees and charges at any time.

14.Amendments/Termination

From time to time, Bank may amend any of these terms and conditions contained in the Agreement, including without limitation any part of the Schedules.  Amendments will become effective thirty (30) days after written notice to Client or on the effective date stated in Bank’s notice to Client.
The Service may be canceled at any time by Bank in whole or part without prior notice due to insufficient funds in one or more of the Accounts or other circumstances that may create an unanticipated liability to Bank. Client will remain responsible for all transactions approved by the system prior to the cancellation, and for any other fees associated with the Service. After cancellation, the Service may be reinstated once sufficient funds are available in the Accounts to cover any fees and other pending transfers or debits.
Client may terminate the use of the Service in accordance with the Master Agreement by contacting Bank by mail email, telephone, or personal delivery.     
 
 

FX Service

Schedule A

Exposure Limits

 
An Exposure Limit has been established for FX Requests the Client executes on the FX Site.  Establishing this limit is to reduce credit risk and is approved by a Bank Authorized Representative having the authority to make credit decisions. If an FX Request is received for processing exceeding the established Exposure Limit, the FX Service Provider will contact a Bank Authorized Representative for permission to process the Request. The FX Request exceeding the limit will be executed at Bank’s discretion, pursuant to Bank’s loan policy, but will not be processed until this permission has been obtained.