Cash Management Online Agreement
This Cash Management Online Agreement (the "Agreement") is by and between Brookline Bank (the "Bank") and the corporation, partnership, sole proprietorship or other commercial entity having its principal place of business in the continental United States (the "Company") that has applied for, has been accepted to use and accesses or uses any of the electronic banking services that the Bank makes available online over the Internet (each, a "Service," and collectively, the "Services").
This Agreement describes the terms and conditions under which the Bank will provide the Company with access to and use of the Services, the features of which are described more fully in this Agreement. The Company agrees to access and use the Services only for business or commercial purposes, and that each access or use of the Services constitutes acceptance, and is subject to the terms and conditions, of this Agreement.
You should retain a copy of this Agreement for your records. We will also mail a paper copy of this Agreement to you at your business address on your request.
Definitions
For purposes of this Agreement, unless the context indicates to the contrary, the following words and phrases shall have the meanings indicated below.
Account Agreement means the deposit account agreement between the Company and the Bank which governs the Company's Accounts and which was provided to the Company when it opened its Accounts or any other documents governing the Company's Accounts, each as amended from time to time.
ACH means Automated Clearing House.
Agreement means this Cash Management Online Agreement, including all forms, applications, schedules, documents and agreements referenced herein, each as amended from time to time.
Authorized User means any person your Primary Administrator or any Secondary Administrator designates as being authorized to access or use any Service on the Company's behalf.
Bill Pay Service means the online bill payment feature of the Services.
Business Day means Monday through Friday; Saturdays, Sundays and legal holidays are excluded.
Commonly Controlled Entities means any company you commonly own and control.
Computer means a computer, all software and necessary telephone lines, Internet or other connections and equipment needed to access the Services.
EFTPS means Electronic Federal Tax Payment System.
E-mail means electronic mail.
OFAC means the Office of Foreign Asset Control.
Online Account means your Primary Online Account and any other eligible account you maintain with us for business or commercial purposes.
Password means the Bank system-generated code we send to you for your Primary Administrator to use for the initial sign-on, and the codes selected by your Primary Administrator, any Secondary Administrator and any Authorized User after the initial sign-on that establish a connection to the Services.
Payee means any of your creditors located in this United States to which you instruct the Bill Pay Service to issue a payment.
Payment Instructions means the name, address and telephone number of your Payee, your Payee account number, the amount of the payment of your Payee bill, the Scheduled Payment Date and any other information necessary for the Bill Pay Service to issue a bill payment on your behalf.
Primary Administrator means the Company officer, employee or other person that the Company designates as being its authorized representative, or as authorized to act on the Company's behalf, with respect to the Services.
Primary Online Account means a checking account you maintain with us for business or commercial purposes and which is in good standing, and for purposes of the Bill Pay Service, means the Bill Pay Account.
Primary User ID means the user identification number and Password used by the Primary Administrator to access and use the Services.
Prohibited Payment means (a) payments to settle securities purchases, (b) tax payments to the Internal Revenue Service or any state or other governmental authority, except as provided under EFTPS, (c) insurance payments, (d) payments for government fees, (e) court-ordered payments, or (f) payments to Payees outside the United States.
Scheduled Payment Date means the Business Day on which you authorize the Bill Pay Service to issue a bill payment on your behalf, or if the Scheduled Payment Date is not a Business Day, the next Business Day we are open after the day you originally specified.
Service or Services shall have the meanings first set forth in the preamble hereto.
Secondary Administrator means any person your Primary Administrator designates as being authorized to act as an administrator, having all the same powers and responsibilities of the Primary Administrator, on the Company's behalf with respect to the Services.
Secondary User ID means a user identification number and Password used by any Secondary Administrator or Authorized User to access and use the Services.
User IDs means your Primary User ID and each Secondary User ID.
You or your means the Company.
We, us, or our means the Bank and any third party service provider that it, in its sole discretion, involves in the provision of the Services.
Your Certification
By applying for or accessing or using the Services, you certify that this Agreement has been duly adopted by you in conformity with applicable law and your organizational and governing instruments and that no action contemplated by this Agreement will contravene any such law or instrument. You further certify that no further approval by you or any third party is required to authorize this Agreement or any action taken under this Agreement, and that this Agreement is your valid and legally binding obligation, enforceable against you in accordance with its terms.
Your Registration for the Services
To register for the Services, you must sign an application and any other related forms or schedules that we may require from time to time. You can request a copy of this Agreement, the application and other related forms and schedules from your business relationship manager. You may at any time change the Services for which you have registered by completing and returning to us the appropriate forms, schedules or any other documents that we may require from time to time. Your completed application, forms, schedules and other required documents must be reviewed and approved by us. We reserve the right to reject your application, forms, schedules and other required documents or to refuse your access to or use of the Services for any reason and in our sole discretion.
You Must Designate a Primary Online Account
As an initial matter, you must designate a Primary Online Account for use with the Services. You must maintain your Primary Online Account for as long as this Agreement is in effect. If your Primary Online Account is closed for any reason, or if it is no longer designated for use with the Services, your access to and use of the Services and this Agreement will be terminated.
Availability of Service
The Service will be accessible 24 hours a day, 7 days a week, except during any special or scheduled maintenance periods or interruption or delay due to causes beyond our control. We shall not be liable under this Agreement for failure to provide access.
Access to Services
To access or use the Services, you will need to satisfy the following requirements:
User IDs. You may access the Services from our web site located at BrooklineBank.com or any web site that we may designate from time to time using the User IDs. The Primary Administrator shall select a Primary User ID and each Secondary Administrator shall select a Secondary User ID to access and use the Services. The Primary Administrator may change the Primary User ID and each Secondary Administrator may change his or her Secondary User ID at their discretion. You acknowledge that your Primary Administrator and any Secondary Administrator may, and you authorize your Primary Administrator and any Secondary Administrator to, change or deactivate any User ID from time to time and in his or her sole discretion.
We own the User IDs, and you may not transfer them to any other person or entity. You must discontinue use of the User IDs on our demand and on termination of this Agreement. If this Agreement is terminated, the User IDs will be deactivated and may not be used to access the Services.
You acknowledge and agree that the User IDs are a commercially reasonable method for the purpose of verifying whether any bill payment, transfer or other Service was initiated by you. You further acknowledge and agree that the User IDs are not intended, and that it is commercially reasonable that User IDs are not intended, to detect any errors relating to or arising out of a bill payment, transfer or any other Service.
Computer Requirements. You will need to provide at your own expense the Computer and an E-mail address. Your Computer must, at a minimum, have a browser with capabilities to support a minimum of 128-bit encryption (Microsoft Explorer 6.0 and Netscape 6.1 are examples). You are responsible for the installation, maintenance and operation of the Computer and all related charges. We are not responsible for any losses, damages, injuries, errors or failures caused by any malfunction of the Computer or any Computer virus or other problems that may be associated with access to or use of the Services or the Computer. We also are not responsible for any losses or delays in transmission of information you provide to us or otherwise arising out of or incurred in connection with the use of any Internet or other service provider providing your connection to the Internet or any browser software.
Online Account Funds. You agree to maintain sufficient available funds in your Online Accounts in connection with your access to and use of the Services, unless you have a line of credit attached to any of your Online Accounts. If you have a line of credit attached to any of your Online Accounts, the amount of any bill payment, transfer or other Service will not exceed the sum of your available funds in your Online Accounts, plus your available credit. Regardless of whether you have a line of credit attached to any of your Online Accounts, you agree that we may issue a bill payment, transfer funds or perform another Service even if such action causes one or more of your Online Accounts to be overdrawn. You agree that we may debit any overdraft fees or other related fees from your Primary Online Account (or any other Online Account or commercial deposit account you maintain with us, if necessary). If we are unable to complete a bill payment or transfer or perform any other Service for any reason associated with your Online Accounts, the bill payment, transfer or other Service may not be completed and we will not notify you, unless we are required to do so by applicable law. We will not be liable to you or any third party, however, if we choose to issue a bill payment or transfer funds or to perform the Service.
When you ask us to issue a bill payment, to transfer funds or to perform another Service, you represent that you have sufficient available funds in your Online Account or available credit, as applicable, to cover the amount of the bill payment, transfer or other Service.
Primary Administrator, Secondary Administrators and Authorized Users
You may only designate one Primary Administrator at any one time. You are solely responsible for designating your Primary Administrator. You must provide us with certified copies of resolutions from your governing body, as applicable, and any other certificate or documentation specifying the name of the person who is authorized to designate your Primary Administrator from time to time that is acceptable to us.
Your Primary Administrator may designate one or more Secondary Administrators. Your Primary Administrator and any Secondary Administrator may designate one or more Authorized Users and establish the scope of their access to and use of any of the Services. You accept as your sole responsibility the designation of any Secondary Administrator by your Primary Administrator and any Authorized User by your Primary Administrator and any Secondary Administrator. You understand that your Primary Administrator and any Secondary Administrator will control, and you authorize your Primary Administrator and any Secondary Administrator to control, access and use by Authorized Users of the Services. Your Primary Administrator and any Secondary Administrator can add, change or terminate your Authorized Users from time to time and in their sole discretion. We cannot add, change or terminate any Secondary Administrator and Authorized User to any Service and we do not control access by any Secondary Administrator and Authorized User to any Service.
You will require your Primary Administrator and each Secondary Administrator and Authorized User to comply with all provisions of this Agreement and all other applicable agreements, and you guarantee that they will do so. You acknowledge and agree that you are fully responsible for the failure of your Primary Administrator, any Secondary Administrator or any Authorized User to comply. You are responsible for any bill payment, transfer and other Services and charges incurred by your Primary Administrator, any Secondary Administrator and any Authorized User, even if your authorization is exceeded.
Whenever any Authorized User leaves your employ or you otherwise revoke the authority of any Authorized User to access or use the Services, you must notify your Primary Administrator or any Secondary Administrator immediately and the Primary Administrator or Secondary Administrator, as applicable, is solely responsible for deactivating such Authorized User's Secondary User ID. You remain fully responsible for all use of the Secondary User ID and the Services by any such Authorized User.
Whenever any Secondary Administrator leaves your employ or you otherwise revoke the authority of any Secondary Administrator to access or use the Services, you must notify your Primary Administrator immediately and the Primary Administrator is solely responsible for deactivating such Secondary Administrator's Secondary User ID. You remain fully responsible for all use of the Secondary User ID and the Services by any such Secondary Administrator.
Whenever your Primary Administrator leaves your employ or you otherwise revoke your Primary Administrator's authority to access or use the Services, you must notify us in writing immediately. You remain fully responsible for all use of the Primary User ID and the Services by your Primary Administrator occurring before you notify us and we have had a reasonable opportunity to act upon your notice.
You May Designate Other Online Accounts for Use with the Services
In addition to the Primary Online Account, you may designate any Online Account for use with the Services, except for use with the Bill Pay Service. Except as specifically approved by the Bank any such Online Account must have the same account title and taxpayer identification number as the Primary Online Account and are subject to the other conditions and limitations set forth in this Agreement. We reserve the right to deny any Online Account designation in our sole discretion.
You may at any time change any Online Account you have designated for use with any Service for which you have registered by completing and returning to us the appropriate forms and schedules. You may obtain a copy of these forms and schedules by contacting Customer Service at 1-877-668-2265.
Ineligible Accounts
Any account maintained with us for (a) personal, household or family purposes or (b) business or commercial purposes that requires multiple signatures to transact business is ineligible for use with the Services.
Debiting Your Online Accounts
You authorize us to, and we may in our sole discretion, charge and automatically deduct from your (a) Online Accounts (or any other commercial deposit account you maintain with us, if necessary) the amount of a transfer or other Service on or after the date on which we execute the transfer or other Service, and (b) Primary Online Account (or any other Online Account or commercial deposit account you maintain with us, if necessary) the amount of a bill payment and fees and other amounts incurred with the Services on or after the date we issue the payment or the date on which such fees or other amounts are due. Service fees are disclosed in the Schedule of Charges and Fees for Business Accounts, a copy of which will be provided to you when you apply for the Services, and are in addition to other fees provided for in the Account Agreement.
You are responsible for all charges incurred in connecting to the Services, including any sales taxes, fees or similar charges imposed by federal, state or local governments where you are located and conduct your business and all charges incurred in connection with or related to the use of the Computer, such as all telephone charges and charges by an Internet or other service provider providing your Internet connection to the Services.
Cash Management Online Services
By accessing the Services with the User IDs, you can perform any or all of the following Services for which you have registered, subject to the limitations set forth in this Agreement and any Account Agreement:
Online Account Access - You may obtain information, such as balance and summary information, available funds information and information about prior business day cleared transactions and ATM and POS transactions, each for the current statement period. Except as noted above this information generally will be current as of the time you access your Online Accounts using this feature of the Services.
Transfer of Funds - You may transfer funds among your Online Accounts for any reason, including to make one-time transfers or to schedule future, recurring or automatic transfers between your Online Accounts, except if your Online Account is a Passbook Savings or Certificate of Deposit Account. You may also transfer funds from any Online Account that is a Commercial Checking Account, Savings or Money Market Deposit Account. You may not use this Service to obtain an advance or to transfer funds from any Online Account that is a Commercial Loan Account.
If you make a deposit to any of your Online Accounts by transferring funds using this Service before 6:00 p.m., Eastern Time, on any Business Day that we are open, we will consider that day to be the day we receive your deposit, unless we tell you otherwise. If you make a deposit to any of your Online Accounts by transferring funds using the Services after 6:00 p.m., Eastern Time, on any Business Day or any day that is not a Business Day, we will consider your deposit to be received by us on the next Business Day we are open. Funds will be made available to you in accordance with our funds availability policy, a copy of which is included in the Account Agreement. The maximum amount you can transfer using this Service is equal to the available balance in your Online Account.
We may from time to time and in our sole discretion refuse to issue, or limit the number or amount of funds transfers you may request using this Service.
You cannot cancel, change or stop any funds transfer you request using this Service.
Wire Transfers - You can use this Service to instruct us to wire transfer funds in a specified amount, from any Online Account (except if your Online Account is a Passbook Savings, Certificate of Deposit or Commercial Loan Account), to a specified third party on your behalf at another financial institution.
If you elect to use this Service, you must enter into a separate Wire Transfer Services Agreement with us. You acknowledge and agree that this Service is also governed by our Wire Transfer Services Agreement and that if any provision of the Wire Transfer Services Agreement is inconsistent or otherwise conflicts with this Agreement, the provisions of the Wire Transfer Services Agreement will apply to this Service. If your Wire Transfer Services Agreement is terminated for any reason, we may, in our sole discretion and without notice to you, terminate your use of this Service.
ACH Entries - Subject to application and approval by the Bank you can use this Service to authorize us to process, transmit, receive and settle for Entries through Automated Clearing House (ACH) and to credit or debit Entries to an Online Account, except if your Online Account is a Passbook Savings, Certificate of Deposit or Commercial Loan Account.
If you elect to use this Service, you must enter into a separate ACH Transfer Agreement with us. You acknowledge and agree that this Service is also governed by our ACH Transfer Agreement and that if any provision of the ACH Transfer Agreement is inconsistent with or otherwise conflicts with this Agreement, the provisions of the ACH Transfer Agreement will apply to this Service. If your ACH Transfer Agreement is terminated for any reason, we may, in our sole discretion and without notice to you, terminate your use of this Service.
Electronic Federal Tax Payment System (EFTPS) - You can use this Service to make Federal tax payments due to any Federal governmental authority, including the Internal Revenue Service, from any Online Account. You agree to comply with any set-up or other procedures required by the recipient of a transfer (such as the prearrangement required by the Internal Revenue Service for electronic tax payments). If you fail to comply with these procedures, we may, in our sole discretion and without notice to you, terminate your use of this Service. You must enroll for this Service with the Internal Revenue Service and you must provide us with a copy of your enrollment documents and any other information we require and we must have approved your use of this Service in advance.
Stop Payments - You can use this Service to initiate a stop payment request online for any check or other item drawn against any of your Online Accounts; however, you may not use this Service to request a stop payment on a bill payment you authorized using the Bill Pay Service. You warrant that the information describing the check, including the check date, the exact amount, the check number, and payee are correct. You agree that we will not be responsible for stopping payment unless we receive your stop payment request within a reasonable time for us to act on it. In addition, you may not request a stop payment online of any treasurer's check, cashier's check, certified check or other official institution check you have purchased from us or any check that we have guaranteed or otherwise accepted. You understand that your stop payment request is conditional and subject to verification by us that the check has not already been paid or that some other action to pay the check has not been taken by you.
A stop payment request against a check is effective only against the check that is identified as described above. A written request will be valid for 6 months, unless you renew your request in writing before the expiration of this time period. Otherwise, if you do not timely renew your request in writing and the check is presented to us for payment following the expiration of this time period, we may pay the check without any liability to you. We will charge you a separate fee for each stop payment request you make using this Service. The amount of this fee is disclosed in our Schedule of Charges and Fees for Business Accounts.
If you make a stop payment request using this Service after 4:00 p.m., Eastern Time, on any Business Day or any day that is not a Business Day, we will consider your request to be received by us on the next Business Day we are open.
New Services - We may introduce new Services from time to time. We will notify you of the availability of these Services. By using these Services when they become available, you agree to be bound by the terms and conditions that will be made available to you concerning these Services.
Bill Pay Service
1. The Bill Payment Service permits you to direct payments from your Bill Payment Account to third parties you wish to pay. Your designated Bill Payment Account must be a business checking account. Through the Bill Payment Service, you can pay bills from your Bill Payment Account to businesses or individuals.
2. All payments you make will be deducted from your Bill Payment Account, and you agree that we may debit your Bill Payment Account for such payments without requiring your signature on the item and without prior notice by you. All bill payments must be payable in U.S. dollars to a Payee located in the United States. We reserve the right to restrict types of Payees to whom payments may be made using the Service from time to time.
3. You should not use the Bill Payment Service to make payments to settle securities purchases, tax payments, insurance payments, payments for government fees, court ordered payments, payments to foreign vendors or persons. Payments for these Payees will be your sole responsibility if delayed or improperly processed or credited.
4. Funds must be available in your Bill Payment Account on the scheduled payment date. If the date you schedule a payment to be initiated falls on a non-Business Day (Saturday, Sunday or holiday), funds must be available in your Bill Payment Account the following Business Day. After funds are withdrawn from your Bill Payment Account to make a payment, we may make the payment either by transferring funds electronically to the Payee or by mailing the Payee a check. If a payment has been made to one of your designated Payees for which funds are not available in your Bill Payment Account, and we are unable to recover the amount of the payment by debit to the Payee or by charging your Bill Payment Account, you agree to repay the funds owed immediately upon demand.
5. The maximum amount of any bill payment transaction is $9,999.00, which is subject to change. You may choose to schedule payments to recur in the same amount at regular weekly, monthly or bi-monthly intervals. You should schedule a payment to a new Payee at least 10 Business Days before any payment due date, to allow us time to set up the Payee and verify information about your account with the Payee.
6. You authorize us and any third party acting on our behalf to choose the most effective method to process your payment, including without limitation, electronic, paper or some other means. If the payment is an electronic payment, you must schedule it to be made at least four Business Days prior to the payment due date (that is, the due date shown on your invoice or provided in your agreement with the Payee, not taking into account any applicable grace period). However, if the company or person that you are paying cannot accept an electronic payment, and a check payment is to be made, you must schedule that payment to be made at least ten Business Days prior to the payment due date described above. You may schedule payments during the "grace period", but any late charges associated with payments so scheduled will be your responsibility regardless of the cause of the late payment. If you do not follow these time frames, we shall not be liable for any failure to make payment. You will bear full responsibility for all penalties, late fees, finance charges, damages or other actions taken by the Payee proximately caused by your scheduling. If you schedule your payment and follow all instructions provided, but the payment is not received by the Payee in a timely manner, you may contact our Customer Service at 1-877-668-2265. They will work with the Payee on your behalf to attempt to have any late fees or charges reversed. The date the Payee credits the payment depends upon the Payee's payment processing procedures, and the Bank will not be responsible for any delay in crediting the payment which is a result of the Payee's payment processing procedures.
7. Brookline Bank is only responsible for exercising ordinary care in processing and sending payments upon your authorization in accordance with this Agreement. Even if we fail to exercise ordinary care, the Bank will not be liable in any way for damages incurred by you if you do not have sufficient funds in the Bill Payment Account to make the payment on the processing date, for delays in mail delivery, for changes to the Payee's address or account number (unless you have advised the Bank of the change sufficiently in advance), for failure of any Payee to correctly account for or credit the payment in a timely manner, or for any other circumstances beyond the control of the Bank.
8. If the session during which you schedule a payment ends by 3:00 p.m. Eastern time, the Bank will be considered to have received it on that day if it is a Business Day. Otherwise, it will be considered received on the following Business Day. For all entries made using Online Banking or Bill Payment Service, the time recorded by the Online Banking or Bill Payment Service will be considered the official time of the transaction.
9. If you have instructed us to make a payment for which there are insufficient funds available in your Bill Payment Account, on the date the payment is debited to your account, the payment will not be made and the Bill Payment Service will automatically block future bill payments until the account has sufficient funds. If a payment is made even though sufficient funds were not available in your Bill Payment Account, and we are unable to recover the amount of the payment by debit to the Payee or by charging your Bill Payment Account, you agree to repay the funds owed immediately. In all cases, you are responsible for either contacting us to make alternate arrangements for the payment or to reschedule the payment through the Service.
10. Except for those payments and transfers which are completed immediately (for example, some transfers between your deposit accounts), you may cancel or change a payment using the Cash Management Online Services. Payments must be changed or canceled prior to 3:00 p.m. Eastern time on the Business Day before the transaction is scheduled to be initiated. We may not have a reasonable opportunity to act on any stop payment after the Business Day the transaction is scheduled to be initiated. Although we will make a reasonable effort to accommodate your request, we will have no liability for failing to do so if we do not receive your request in a timely manner. Stop payment orders, whether oral, written, or electronic, will be in effect for a period of six months. If requested by the Bank, you will confirm any stop payment order in writing within 14 days after you call. After six months, any stop payment order will terminate and must be renewed in order to continue in effect. The Bank may pay any item that is presented following the lapse of any stop payment order.
Compliance
You and we agree that all bill payments, transfers and other Services will be subject to and will comply with the laws of the United States, including without limitation, any applicable federal and state laws and regulations, such as the Internal Revenue Code, the operating circulars of the Federal Reserve System, and the operating rules of networks, associations and systems, such as the rules of the National Automated Clearing House Association and any regional ACH that we may use from time to time to provide the Services, and any OFAC requirements, each as amended from time to time. You acknowledge that no bill payments, transfers or other Services will be initiated that violate the laws of the United States.
You understand that information regarding OFAC requirements can be obtained by calling the OFAC Compliance Hotline, toll free, at 1-800-540-OFAC. You also understand that failure to comply with applicable operating rules of networks, associations and systems could result in liability for fines and other penalties assessed against us pursuant to those rules, which you agree to pay directly or to reimburse us.
OFAC is a division of the United States Treasury Department and is mandated to implement and enforce economic sanctions imposed by the U.S. Government against hostile foreign countries, their nationals, or other "specially designated" individuals or entities. These sanctions restrict banks and other businesses from doing business with those designated countries and entities.
Services Limitations
Because federal regulations require us to limit the number of preauthorized, automatic or telephone transfers (including transfers made with this Service) on certain types of deposit accounts, you can make no more than 6 transfers per statement period from any Online Account that is a Savings or Money Market Deposit Account by preauthorized, automatic or telephone transfer to your other Online Accounts or third parties. In the case of an Online Account that is a Money Market Deposit Account, no more than 3 of these may be by check, draft, debit card or preauthorized ACH transfer. If you exceed more than 3 such transfers, we need not honor them. If you exceed the permitted number of withdrawals or transfers allowed by federal regulations we will notify you. If after we notify you, you continue to violate these limits then your account will be closed. A "preauthorized transfer" includes any arrangement by us to pay a third party from your Online Account upon your written or oral instruction including an order received through an automated clearing house (ACH) or any arrangement by us to pay a third party from your Online Account at a predetermined time or on a fixed schedule.
The activities you can perform with the Services are further limited by, and are subject to, the terms disclosed in this Agreement and the Account Agreement. You should refer to these agreements for applicable limitations.
If you send us an E-mail message, we will be deemed to have received it on the following Business Day we are open, and will not be effective against us until we have had a reasonable time to act on it. E-mail messages may not be secure; thus, you should not send us or ask for sensitive information, such as Online Account numbers or other Online Account information, via E-mail. You also should not rely on E-mail if you need to communicate with us immediately.
If we send you an E-mail notice, you will be deemed to have received it 2 days after it is sent, even if you do not access your E-mail during that time.
Our Liability
Unless expressly prohibited or otherwise restricted by applicable law or this Agreement, our liability is limited as follows: We shall not be liable to you or to any third party for performing or failing to perform the Services, except for our gross negligence or willful misconduct in connection with the performance of (or failure to perform) any of the Services.
Without limiting the generality of the foregoing, we shall not be liable for delays which happen because of reasons beyond our control, including without limitation, acts of civil, military or banking authorities, national emergencies, war, riots, unavoidable difficulties with our equipment, the unavailability of the Services, any errors in information provided through the Services, any difficulties caused by any Internet or other service provider or browser software or any Computer failure, whether caused by a virus or otherwise. If, for any reason, we are adjudged liable to you, your recovery will be limited to your actual damages, in an amount not to exceed six times the total fees and charges paid by you to us for the Services during the calendar month immediately preceding the month in which the event giving rise to our liability occurred.
IN NO EVENT WILL YOU BE ABLE TO RECOVER FROM US ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES OR LOST PROFITS, REGARDLESS OF WHETHER YOU ADVISED US OR WE OTHERWISE KNEW OF THE LIKELIHOOD OF SUCH LOSSES OR DAMAGES. You agree that the dollar limitation described in this Section is reasonable, even if your actual damages exceed this limitation.
Your Liability
You are solely responsible for the amount of each bill payment, funds transfer or other Service made using and fees or other amounts incurred with the Services, even if you did not authorize the bill payment, funds transfer or other Service. You agree to indemnify us and hold us harmless from and against any and all losses, liabilities, claims, damages or expenses (including attorneys' fees and court costs and expenses) arising from or related to the access or use of the Services.
Confidentiality and Security
The User IDs identify and authenticate you (including your Primary Administrator, Secondary Administrators and Authorized Users) to us when you access or use the Services. You authorize us to rely on the User IDs to identify you when you access or use any of the Services, and as signature authorization for any bill payment, funds transfer or other Service. You acknowledge and agree that we are authorized to act on any and all communications or instructions we receive using the User IDs and that we may attribute to you any and all transactions initiated using the User IDs, regardless of whether the communications, instructions or transactions are authorized.
You accept as your sole responsibility the selection, use, protection and maintenance of confidentiality of, and access to, the User IDs. You agree to take reasonable precautions to safeguard the User IDs and keep them confidential. You agree not to reveal the User IDs to any unauthorized person. You acknowledge that we will never ask you for the User IDs, and that our employees do not need the User IDs for any reason. You further agree to notify us immediately if you believe that the confidentiality of the Primary User ID has been compromised in any manner or your Primary Administrator or any Secondary Administrator immediately if you believe that the confidentiality of any Secondary User ID has been compromised in any manner.
Unauthorized Use
If you have reason to believe that your Primary User ID has been lost, stolen or otherwise compromised (or may be compromised) or that a bill payment, funds transfer or other Service has been or may be made with your Primary User ID without your permission, you must call our Customer Service Department on any Business Day at any time during our normal business hours, or write to our Customer Service Department. The telephone number and address of our Customer Service Department is listed at the end of this Agreement. You should also immediately change your Primary User ID. You will not be liable for any unauthorized transaction that occurs after we receive your notice and have had a reasonable opportunity to act on it, unless we can prove that your failure to comply with this Agreement or to otherwise exercise ordinary care contributed to the unauthorized bill payment, funds transfer or other Service.
If you have reason to believe that any Secondary User ID has been lost, stolen or otherwise compromised (or may be compromised) or that a bill payment, funds transfer or other Service has been or may be made with any Secondary User ID without your permission, you must contact your Primary Administrator or any Secondary Administrator. Your Primary Administrator or Secondary Administrator, as applicable, must deactivate, and has the sole responsibility for deactivating, any such Secondary User ID. In no event will we be liable for any unauthorized transaction that occurs with any Secondary User ID.
Commonly Controlled Entities
You represent and warrant that each of the entities listed on Exhibit A is under common ownership and/or control with you (each, a "Commonly Controlled Entity"), and each Commonly Controlled Entity has signed a Cash Management Online Agreement. You consent to being listed as a commonly owned/controlled entity on Exhibit A to the Cash Management Online Agreements signed by each Commonly Controlled Entity. You acknowledge and agree that, by including an entity on Exhibit A as a Commonly Controlled Entity, and by agreeing to be included on Exhibit A to the Cash Management Online Agreements of the Commonly Controlled Entities, (i) your Accounts will be accessible to the Commonly Controlled Entities and you will have access to the Accounts of the Commonly Controlled Entities, and (ii) your (and your Commonly Controlled Entities') Primary Administrator and Authorized Users will be able to transfer funds among the Accounts of the Commonly Controlled Entities. You agree to designate as your Primary Administrator the same individual designated as such by each Commonly Controlled Entity (which individual shall be an officer of you and of each Commonly Controlled Entity), and you agree that such Primary Administrator will only designate Authorized Users who are officers or employees of you and of each Commonly Controlled Entity. You agree to indemnify us and hold us harmless from and against any and all losses, liabilities, claims, damages or expenses (including attorneys' fees, court costs and expenses) arising from or related to (i) your designation of an entity as a Commonly Controlled Entity, (ii) any Commonly Controlled Entity's designation of you as commonly owned/controlled with it, or (iii) the transfer of funds from an Account maintained by you to an Account maintained by a Commonly Controlled Entity, or vice versa. The entities comprising the Commonly Controlled Entities Company shall be jointly and severally liable for this indemnity obligation.
Disclaimer of Warranty
UNLESS THE DISCLAIMER OF SUCH WARRANTIES IS PROHIBITED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT USE OF THE SERVICES BY ANY MEANS AND THE COMPUTER IS AT YOUR SOLE RISK, THAT THE SERVICES ARE PROVIDED "AS IS," AND THAT WE DO NOT MAKE ANY WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES, EITHER EXPRESS OR IMPLIED, SUCH AS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
Virus Protection
We are not responsible for any virus or viruses, electronic or otherwise, that you may encounter. We suggest that you routinely scan your Computer using a virus protection product. An undetected virus may corrupt and destroy your programs, files and hardware.
Suspension
We reserve the right to suspend your access to and use of the Services for any reason. If we do this, we may notify you in a manner provided for in this Agreement; however, we are not under any obligation to do so. If your access to and use of the Services is suspended, transactions which were previously scheduled will be canceled; however, we will not be liable to you if we allow a transaction to be completed. All inquiries or correspondence relating thereto, including requests for reinstatement, should be directed to us at the address listed below.
Amendments to Terms and Conditions
We may change the Services, the Services fees and related charges and the other terms and conditions in this Agreement from time to time by sending you an E-mail in a manner provided for in this Agreement. The change generally will be effective immediately upon your receipt of our E-mail. However, if the change is made for security purposes, we will implement it without giving you prior notice.
You will be deemed to accept any changes to the Services and this Agreement if you access or use any of the Services after the date on which the change becomes effective. You will remain obligated under this Agreement, including without limitation, being obligated to pay all amounts owing under this Agreement, even if we amend this Agreement.
Notices/Address Changes
Any notice or communication that you are required or permitted to give to must be given to us by first-class, U.S. mail, postage prepaid, to:
Brookline Bank, P.O. Box 470469, Brookline, Massachusetts 02447, Attn: Cash Management Services
To the extent permitted by applicable law, any such notice or communication will not be effective until we receive and have had a reasonable opportunity to act on such notice or communication.
You authorize us to, and you agree that we may, send any notice or communication that we are required or permitted to give you under this Agreement to your business mailing address or your business E-mail address as it appears on our records, and that any such communication or notice will be effective and deemed delivered when provided to you in such a manner. You agree to notify us promptly about any change in your business mailing or business E-mail address, and you acknowledge and agree that no such change will be effective until we have had a reasonable opportunity to act on your notice. If your Online Account is owned by more than one person or entity, you agree that we may consider any such notice or communication as being given to all Online Account owners when such notice or communication is given to any one Online Account owner.
You agree that we may send confidential information including your User IDs to your current business address shown in our records for your Primary Online Account, whether or not our records include delivery instructions to a particular individual. You also agree that we will not be responsible or liable in any way in the event that such properly addressed information is intercepted by an unauthorized person either in transit, at your place of business or otherwise.
Termination
Unless otherwise required by applicable law, we may terminate this Agreement, in whole or in part, for any reason and at any time without prior notice to you. You also may terminate this Agreement and the use of the User IDs and one or more of the Services by calling us or writing to us at the telephone number or address set forth below. If you call, you must put your request in writing and send it to us within 10 Business Days after you call. Any request to terminate your access to and use of the Services will be effective only after we have had a reasonable opportunity to act on your request.
If this Agreement is terminated for any reason, you must cancel all outstanding bill payments, funds transfers and other Services, including any automatic or recurring bill payments or funds transfers. We may continue to issue bill payments, to transfer funds and to perform other Services you have previously authorized or may subsequently authorize; however, we are not under any obligation to do so. We will not be liable if we choose to issue any bill payment, to transfer funds or to perform any other Service you previously authorized or subsequently authorize after this Agreement terminates.
Any termination of this Agreement, whether initiated by you or by us, will not affect any of your or our rights and obligations under this Agreement which have arisen before the effective date of termination of this Agreement, even if we allow any transaction to be completed with the User IDs after this Agreement has been terminated. In addition, the provisions of this Agreement relating to your and our liability and the disclaimer of warranties shall survive the termination of this Agreement.
Governing Law
This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its applicable conflict of law principles, and the applicable laws of the United States. You and we agree to be bound by, and hereby consent and agree to, such laws with respect to any claim relating to this Agreement. In the event of a conflict between the provisions of this Agreement and any applicable law or regulation, this Agreement shall be deemed modified to the extent necessary to comply with such law or regulation. In the event of a dispute regarding the Services, you and we agree to resolve the dispute by looking to the terms and conditions contained herein.
Assignment; Binding Effect
We may, at any time, assign this Agreement, including our rights, interests and obligations thereunder, in whole or in part, or delegate any of our responsibilities under this Agreement to any other person or entity without notice to or consent from you. You may not assign this Agreement, including any of your rights, interests and obligations thereunder, in whole or in part, or delegate any of your responsibilities under this Agreement without our prior written consent. We are not under any obligation to give our consent, and any attempt to assign this Agreement without our written consent shall be null and void. This Agreement shall be binding upon and for the benefit of you and us, and your and our permitted assigns and successors. However, this Agreement will not benefit or be binding on any other third party, your Primary Administrator, a Secondary Administrator or any Authorized User or any of their respective executors, administrators, personal representatives, guardians or conservators.
No Waiver
No waiver of any right or obligation under this Agreement by us on any occasion will constitute a waiver of that right on any subsequent occasion. In any event, no waiver by us of any right of ours is effective against us unless it is in a writing signed by us.
Severability
If any provision of this Agreement is determined to be invalid or unenforceable by a court or any governmental agency having competent jurisdiction, that provision will continue to be enforceable to the fullest extent permitted by that court or agency, and the remainder of that provision will no longer be considered part of this Agreement. All other provisions of this Agreement will, however, remain in full force and effect.
Entire Agreement
You acknowledge and agree that any access to or use of the Services constitutes acceptance of the terms of this Agreement, and that this Agreement contains the entire and final agreement and expressly supersedes all prior agreements and understandings, both written and oral, between you and us concerning the Services.
The Account Agreement will also govern your Online Accounts. If any provision of the Account Agreement is inconsistent with a provision of this Agreement, the provisions of this Agreement will apply to the Services.
The Website Terms and Conditions, which generally governs any access to or visit to our web site, will also govern you access to and use of the Services. You can access this Website Terms and Conditions by clicking on the word "Disclosures" appearing at the bottom of the home page of our web site located at www.brooklinebank.com.
Monitoring and Recording
You acknowledge and agree that your telephone calls and other notices and communications you provide to us may be monitored and recorded for training and quality control purposes. We may, and you agree and authorize us to, monitor, record, retain and reproduce your telephone calls and any other notices and communications you provide to us, regardless of how transmitted to us, as evidence of your authorization to act in connection with any bill payment, transfer or other Service. We will not be liable to you or any third party for any losses or damages that are incurred as a result of these actions. We are not, however, under any obligation to monitor, record, retain or reproduce such items, unless required to do so by applicable law.
Relationship
You and we are not partners or agents of each other as a result of this Agreement.
Section Headings
The section headings used in this Agreement are only meant to organize this Agreement, and do not in any way limit or define your or our rights or obligations.
Exhibit A - Listing of Commonly Controlled Entities (if any)
