A. Service Contracting
FFCUT is a Delaware Statutory Trust, and we may oﬀer you, various investment, and commercial services from time to time that are tied to the Account (the “Services”). You must maintain your Account with FFCUT to receive these Services. The Services are subject to the terms of this Agreement and the applicable Service Addendums for each Service. If you wish to contract a Service, contact your Account Representative.
B. Interpretation of this Agreement
1. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, such provision will be fully severable, and this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision were never a part hereof, and the remaining provisions of this Agreement will remain in full force and eﬀect.
2. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions in a Service Addendum or the Account Addendum, the Addenda will prevail.
3. In the event of conflict between the Spanish and English versions of this Agreement, the Spanish version will prevail.
C. Information about You
1. FFCUT may request your credit report in relation to the establishment of your Account at any time and afterwards as permitted by the applicable regulation.
2. In order to comply with applicable laws and regulations, FFCUT may require from time to time that You provide FFCUT with documents and information concerning your business, including periodic financial information, whether You are a corporation, partnership, association, non-profit entity, or any other entity or individual doing business under a commercial name or trade name.
D. Business Days, Business Hours, and Eﬀective, Date of Transactions
FFCUT ’s business days are Monday through Friday, except federal holidays (“Business Day”). “Cut-oﬀ Time” refers to the time limit established by FFCUT for receipt, processing, transmission, cancellation, and amendment of transactions orders.
E. Applicable Law
This Agreement will be governed by and interpreted in accordance with the laws of the Delaware and any pertinent federal laws and regulations.
F. Final Agreement
This Agreement, the Agreement Addendum and the Services Addenda constitute the final agreement between the parties. Any written or verbal agreement made prior to this Agreement is hereby expressly cancelled and revoked. Any addendum, exhibit or attachment to this Agreement will be considered included herein and will become part of this Agreement. You acknowledge and agree that your contractual relationship with FFCUT is subject to the provisions of this Agreement.
Except as otherwise provided in this Agreement, FFCUT reserves the right to amend the terms and conditions established in this Agreement and the Addendums. Such amendments will be eﬀective upon notice, or as established in the written notification.
H. Transfer of Agreement
You may not transfer or assign this Agreement or your participation in any of FFCUT ’s Services to any other person or entity. You may not transfer or assign to any person or entity the authority to issue instructions to FFCUT regarding any Services except when expressly authorized by FFCUT . FFCUT may transfer its rights, in which case You will be notified.
1. The provisions of this Agreement shall remain in full force and eﬀect until any of the parties terminates this Agreement by written notice sent via email. FFCUT reserves the right to cancel this Agreement or a Service Addendum at any time, without prior notice to any of the parties, if any of the following events or circumstances occur: a) You violate or fail to comply with any applicable laws or regulations or any of the terms, covenants, representations or warranties included in this Agreement or a Service Addendum; b) You do not fulfill payment or any other reimbursement agreed upon; c) a court or competent government authority issues a writ of attachment, pledge order, or lien for any share of your Account, assets, or properties; d) your business closes, becomes insolvent, or bankrupt; and (e) You fail to comply with other agreements made with FFCUT or any other document that evidences your debt to FFCUT .
2. FFCUT shall not be liable for fulfilling payment orders after said notice of termination is mailed. You will be responsible for all transactions in progress, obligations under this Agreement, and all fees for Services rendered until the date of termination of this Agreement. Any service charges owed by You on the date of termination, must be paid immediately. However, FFCUT may exercise its right to set oﬀ any such owed amounts against the Account.
3. The terms for each Service will be established in the corresponding Service Addendum. FFCUT reserves the right to cancel any Service at any time. Any such cancellations will be notified by email. Unless otherwise indicated in the notification, all other Services will continue in full force and eﬀect. You may cancel any Service through email notification to FFCUT with 30-day prior notification at email@example.com. The cancellation of a Service does not entail the cancellation of other Services.
4. Upon termination of this Agreement or any Service Addendum, you will delete or destroy any corresponding intellectual property of FFCUT that may be stored in your computer memory or any other data in your possession. If FFCUT terminated this Agreement because you incurred in a violation, it has the option to declare due and payable immediately any fees or service charges pending payment under this Agreement. The parties understand and agree that termination of this Agreement does not give You the right to claim any compensation from FFCUT, under any pretext, including, but not limited to, loss of income, loss of good- faith, or any direct, indirect, consequential, punitive, or exemplary damages.
5. All warranties, representations, and covenants will remain valid and binding, after the termination of this Agreement.
J. Announcements and Notifications
1. You must notify FFCUT, by email, of any changes in your mailing address (the address at which You receive Account Statements, reports, notices, and any other FFCUT mail). The eﬀective date of any changes will depend on the date when FFCUT receives your notification and, as such, any such changes may be eﬀective during the current cycle or the next. FFCUT shall not be liable for delays in the receipt of Account Statements, reports, or any other notice or mail, if You do not notify your change of address as established herein.
2. You shall notify FFCUT 30 days prior to any changes in the format of the account number, profile of your customers, bills or any other element used in the payment process of Your bills and that aﬀects the provision of any of the contracted Services. FFCUT will require a file with the new data so that the conversion of the data is made to ensure the correction and updating of the reports and files provided to You under this Agreement. FFCUT may bill you for these changes at the applicable rate and may impose a penalty if You make changes that aﬀect the provision of any of the Services without prior notification to FFCUT .
3. Except in instances where local or federal regulations require the use of a particular delivery method, FFCUT may send correspondence, announcements, communications, or notifications relating to the Account or the Services in writing via email, fax, mail or personal delivery at the address specified in the corresponding Account Addendum or in the Service Addendum and will be eﬀective from the date of shipment or as established in the correspondence.
K. Account Statement: Reports and Forms
1. FFCUT will send You a periodic Account Statement, reporting all transactions made in the Account during the Account Statement period. You may receive your periodic Account Statement: (a) in print at the last address on record at FFCUT , or (b) electronically thru the e-Commercial Statement Services.
2. FFCUT shall retain a copy of both sides (front and back) of all items stored by electronic media for the retention period required by law. You may request certified copies of account statements, or other items at FFCUT by mail, or by calling to Customer Service. FFCUT will send You the copies within a reasonable period after receipt of your request. You will be responsible for payment of any fees for reproduction and delivery of documents.
3. You are responsible for notifying FFCUT immediately, in writing or by phone, if You have not received your Account Statement within thirty (30) calendar days of the closing date of the cycle.
4. FFCUT will produce and send You the reports listed in this Agreement and the applicable Service Addendums. The frequency and method of delivery will be set forth in the corresponding Service Addendum.
5. You agree that You are responsible for verifying all information provided by FFCUT to identify any unauthorized charges, including, but not limited to any omission or discrepancy. To this eﬀect, you will promptly revise and reconcile all reports that are described in the Agreement and Service Addendums, Account Statements and any attached documents, files, announcements, correspondence, or notification (in general, the “Report”) received from FFCUT.
6. If You find any omissions or discrepancies between your records and the information provided by FFCUT, or if You have any objections, you must notify FFCUT, in writing, within ten (10) days of the date of the Report, so that FFCUT may investigate
the claim and take any necessary action. Should You fail to notify FFCUT within this period, the reports will be deemed correct and accepted by You, and FFCUT will have no liability with respect to such omissions, discrepancies, or objections.
7. FFCUT will process the investigation according to ordinary procedures for management of claims. FFCUT reserves the right to request any documents or sworn statements needed for processing a claim under this section; and You agree to provide any such documents. FFCUT will inform You of the results of the investigation within a reasonable period of time.
8. You agree that if you do not notify the omission, discrepancy or objection within the time limit established in this Agreement, you release FFCUT of any responsibility within reference to such omission, discrepancy or objection.
9. You acknowledge that the Account may be subject to Automated Clearing House (ACH) debits originated by third parties. NACHA regulations, which govern ACH transactions, establish the terms that will apply to claims between banks related to these transactions. In the case of commercial accounts debits, claims due to non- authorized ACH debits could be required to be made as early as within 24 hours after the debit. You must therefore review the transactions in your Account on a daily basis to make sure to detect and notify to FFCUT any non-authorized ACH charge, thereby increasing the available mechanisms and possibilities of collection from the originator of any non-authorized transfer.
You may choose in the Account Addendum to receive your Periodic Statement electronically. If you need to receive your Account Statement both electronically and on paper, you will be charged for the services the amount set in the Addendum.
FFCUT will send You an e-mail, informing that your Periodic Statement is available the fourth day after the end of the billing cycle. You do not need to receive a notice to access your Periodic Statement which will be available online for eighteen (18) months. You will be responsible for establishing a password to access the Periodic Statements and for saving the Periodic Statements
FFCUT is not liable to verify if You or the Authorized Person received the Period Statement.
L. Resolution of Claims made by Your Clients
1. You will be responsible for handling and solving claims made by your own clients, providers, or creditors, even if they are consequence of a Service provided by FFCUT.
Any claims to FFCUT must be submitted, in writing, to the Customer Service Department. FFCUT will inform You of the results of this investigation within a reasonable period of time.
2. Any complaints received directly by FFCUT will be referred to You. You must notify FFCUT the result of your investigation within five (5) days following the date the claim was referred to You.
3. Should FFCUT need information from You to resolve a claim by a mutual client, regarding payment of a check issued against an account in FFCUT, you will provide the requested information within ten (10) Business Days of the date the information was requested.
4. FFCUT will not adjust accounts with your clients or accept service requests or deposits from them.
1. You shall pay FFCUT the corresponding monthly service charges stipulated in the Account Opening Addendum to this Agreement and any other charges for Services requested by You, as stipulated in the corresponding Service Addendums (collectively referred to as “Service Charges”).
2. You understand that Service Charges do not include any additional or special services that You may request, not established in this Agreement or a Service Addendum, such as check printing charges, or copies and delivery of documents and information.
3. FFCUT may change Service Charges from time to time. Any change and its eﬀective date will be notified to You, in writing, by FFCUT.
4. Any changes or requirements requested by You for this Agreement, or a Service Addendum may result in changes to Service Charges. You must maintain suﬃcient funds in the Account to cover payment of charges imposed by FFCUT under any clause in this Agreement and the Service Addendums. FFCUT will not be responsible for any check or withdrawal order that is rejected due to insuﬃcient funds in the Account as result of Service Charges debited to the Account.
1. You and FFCUT agree that any controversy or claim between yourselves or against any agent, employee, successor, or designated agent, whether or not related or not to this Agreement and/or Service, and any claim or dispute related with this Agreement, Service, or to the relation or duties established in this Agreement, including the validity of this arbitration clause (the “Claim”), shall be resolved by mandatory arbitration, administered by the American Arbitration Association, in accordance to the Commercial Arbitration Rules in force, and must be held in the Delaware. The arbitration will be governed by the Federal Arbitration Act of FAA, Title 9 of the United States Code, Sections 1 through 16 (9 U.S.C. §§ 1-16) excluding any local rights provision that is inconsistent with or will produce a diﬀerent result. Only one neutral arbitrator will determine the Claim and make a final decision, according to applicable law. Strict confidentiality will rule arbitration procedures, including the information submitted by the arbitrator and the decision or indemnification granted by the arbitrator. Any court with jurisdiction may dictate sentence once the arbitrator decides. The terms will not limit the obligation of a party to defend, indemnify, or release the other party of any judicial procedure or other claims, losses, damages, or expenses.
2. The procedures specified in this article will be unique and exclusive for the resolution of disputes between You and FFCUT that arise or are related to this Agreement; disposing, however, that a party can request temporary injunctive relief in a court of competent jurisdiction in order to maintain status quo, or for the protection of goods or property until the arbitration process is initiated and the selected arbitrators have had the opportunity to resolve the request for temporary relief.
3. Each party is responsible of fulfilling their obligations under this Agreement while final resolution of a Claim is pending, unless doing so is impossible or impractical under the circumstances.
You agree to use the Account and its Services only for lawful purposes and in accordance with applicable laws and regulations, including anti-money laundering laws. You acknowledge and agree that to comply with FFCUT ’s internal policies and/or applicable law [including the executive orders and regulations of the U. S. Department of Treasury’s Oﬃce of Foreign Assets Control (OFAC)], FFCUT may be required to block funds, freeze funds, and/or forfeit funds to appropriate authorities, and to obtain information about the provenance of funds and transactions.
P. Representations and Warranties
1. FFCUT does not represent or warrant, explicitly or implicitly, that the Services will be suitable for You for a particular interest or use. You agree that FFCUT provided You with adequate information regarding each Service and that You have decided, freely and voluntarily, to subscribe to this Agreement.
2. You represent and warrant FFCUT that You do not intend to use, and will not use, any of the Services for the purpose of providing, directly or indirectly, any service, including, but not limited to, financial accounting services, data processing, management, or other related services, to any other individual or entity.
Q. Computer Software
1. FFCUT uses his own Core IT system.
2. By agreeing to use said software, you are accepting the non- exclusive, non- transferable licenses of the aforementioned third parties. No employee of FFCUT is authorized or has the power to make any amendments, changes, or deletions to any of the terms or conditions of said licenses.
3. You agree to use the software as is.
4. If the software is defective, or damaged, FFCUT will provide repair, correction, or replacement services, provided that you have used it properly.
R. Limitation of Liability and Indemnity
1. FFCUT shall exercise due care and diligence in the performance of its obligations under this Agreement and the Services Agreement. However, FFCUT shall not be responsible for compensating You for any damage, expense, cost, or loss of any kind that may occur as a direct or indirect result of rendering the Services, except when FFCUT ’s intentional acts or gross negligence cause you direct financial damage. In such case, FFCUT ’s responsibility shall be limited to the amount of the transactions in controversy and to the extent that the resulting damages could have been avoided or mitigated if You reasonably verified the information provided by FFCUT, pursuant to the provisions of this Agreement. Under no circumstances shall FFCUT be responsible to You for indirect, emotional, special, or punitive damages, even though FFCUT may have been advised of the possibility of such damages.
2. In addition to your responsibilities pursuant to the Service Agreement, you assume responsibility, and commit to indemnify and hold FFCUT harmless from any claims, suits, costs, fees, loss, or expenses of whatever nature to which FFCUT may be subject, whether directly or indirectly, on account of: mistakes, or negligent, or
intentional acts carried out by You, your employees, agents, representatives, or contractors arising from the use of the Service provided by FFCUT, (b) your failure to comply with its guarantees or any provision of this Agreement; and (c) FFCUT ’s compliance with any instructions given by You and related to the Services.
3. FFCUT reserves the right to require You to have, during the life of the present Agreement, a compliance bond and/or insurance coverage for public liability and/or fidelity bond for the amounts FFCUT, at its sole discretion, sets. Such insurance policies or bonds must be issued by insurance companies and must contain terms and conditions acceptable to FFCUT
4. FFCUT shall not be responsible, nor shall it be under any obligation, to third parties (including, but not limited to, any of your partners, stockholders, directors, oﬃcers, agents, employees, clients, or providers) for rendering the Services to You in compliance with the terms and conditions of this Agreement or the Service Agreement. Except in the event of gross negligence or willful misconduct by FFCUT, FFCUT will not be responsible to You or third parties for damages arising from, or allegedly caused by, any act or omission by FFCUT under this Agreement or the Service Agreement. You agree to indemnify and hold FFCUT harmless from any claim or threat against FFCUT that may seek to impose liability against FFCUT in these cases.
5. FFCUT shall not be responsible for non-compliance with any provision of this Agreement if said noncompliance is caused, in whole or in part, by circumstances beyond the control and responsibility of FFCUT , including, but not limited to: communication failures, telephone or electric power services interruptions, mechanical defects in the equipment used in rendering the Services, explosions, accidents, fires, floods, war, criminal, or terrorist acts of government agencies, third persons, or any other acts of God or force majeure. In any of these events, FFCUT ’s responsibility shall be limited to restoring service or any other Services as soon as possible and to provide reasonable means of communication to guide and instruct You the procedures to be followed while FFCUT service or any other Services remain interrupted due to the emergency, all this if possible, under the circumstances.
6. In addition to the limitations on responsibility provided in the terms and conditions of this Agreement, and except as provided by law, FFCUT shall not be bound nor responsible for (a) any interruption in the Services that may result from government restrictions, market, or exchange regulations, (b) any act, failure to act, insolvency, or notification of insolvency to FFCUT from the National Automated Clearing House Association (NACHA) and any of its members, or from any other financial or third party institution; or (c) any error, omission, lack of accurate information in any notice or communication that FFCUT receives from another financial institution, automated clearing house operator, or the Federal Reserve Bank.
7. FFCUT shall not be responsible or liable if your instructions for transfer of funds (a) mistakenly direct payment to a person other than the one intended by You; (b) mistakenly allocate payment for an amount larger than You intended; (c) mistakenly duplicate transmission of instructions previously given by You. In such cases, you are responsible for payment of the amount requested in the fund-transfer instructions.
8. FFCUT will not be liable for your mistakes regarding the amount, certitude, timing, or proper authorization not any instructions received from You, or from any other person, including, but not limited to, any Federal Reserve Bank, transmission or communication facility, any deposit-receiving individual or financial institution, including the return of a request by such deposit- receiving individual or financial institution; and such person will not be considered an agent of FFCUT .
9. DISCLAIMER OF WARRANTIES. THE SERVICES PROVIDED UNDER THIS AGREEMENT, THE SERVICE AGREEMENT OR ANY OTHER SERVICE ADDENDA, ARE PROVIDED ON AN “AS IS”, AS “AVAILABLE”. FFCUT DOES NOT OFFER ANY WARRANTIES, OF ANY KIND, EITHER EXPLICIT OR IMPLICIT, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, FFCUT DOES NOT OFFER ANY WARRANTIES OF ANY KIND WITH RESPECT TO LOSS OR CORRUPTION OF DATA, LOSS OR DAMAGE TO EQUIPMENT AND/OR SOFTWARE, SYSTEM RESPONSE TIMES, TELECOMMUNICATION LINES, OR OTHER COMMUNICATION DEVICES, QUALITY, AVAILABILITY, RELIABILITY, SECURITY ACCESS DELAYS OR ACCESS INTERRUPTIONS, COMPUTER VIRUSES, BUGS, OR ERRORS. FFCUT DOES NOT OFFER ANY WARRANTY THAT SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; OR AS TO THE RESULTS THAT MAY DE OBTAINED FROM USE OF THE SERVICES. FFCUT ASSUMES NO RESPONSIBILITY OR LIABILITY IF TELECOMMUNICATION CARRIERS ARE NOT AVAILABLE AT ANY GIVEN TIME. FFCUT IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY FFCUT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY FFCUT REPRESENTATIVES WILL CREATE A WARRANTY; NOR MAY RELY ON ANY SUCH INFORMATION OR ADVICE.
S. Security Controls
You are responsible for maintaining security controls in your communications and systems networks used to access any of the Commercial Services. This includes, but is not limited to, maintaining security controls, such as: a) maintaining a firewall system to filter external and internal traﬃc generated in your communications networks; b) maintaining an antivirus system in each computer and server; c) maintaining the antivirus system in working condition and updated; d) establish and execute processes to update the apps installed in your systems; e) oﬀer training to your employees about good security practices for using the company’s systems. You represent that You have adopted and will be responsible for maintaining active all the security controls necessary to protect Your access to FFCUT ’s systems and to restrict such access only to authorized persons.
T. Financial Information
FFCUT may require financial information at any time, including, but not limited to, credit analyses, audited financial statements and tax returns. If You do not agree or cannot comply with such requirement, FFCUT may suspend any of the Services herein under agreement.
PROVISIONS THAT RULE THE USE OF THE ACCOUNT AND SERVICES
To qualify for Services and process transactions, debits, or credits initiated or authorized by You, your Account must remain active during the life of this Agreement.
A. Authorized Signatories and Authorized Persons
1. You may authorize in the Resolution the use of a signature produced by a machine or artifact (Facsimile Signature) for an Authorized Signatory of the Account.
2. You shall provide FFCUT with a sample of the Signature Facsimile. You are responsible for maintaining the facsimile signature machine under strict control and verify the Account Statements and cleared checks or their electronic versions, as established in this Agreement, to identify any unauthorized use of the Signature Facsimile. You agree that FFCUT may pay items bearing the authorized Signature Facsimile, even if made by a person not authorized to use it or by a counterfeit machine for the reproduction of signature facsimiles.
3. You agree to release and indemnify FFCUT from any liabilities resulting from the use of Signature Facsimiles, including lawyer’s fees and any litigation costs.
4. You agree to register the Authorized Signatures whenever they have deviated notably from the signatures in the Resolution. You agree to release FFCUT from any liabilities for not fulfilling payment orders or issues with signatures diﬀerent from the ones registered.
5. You must appoint one or more persons (“Authorized Person”), whom You must include in the corresponding Service Addendum for each service so that the person may: (1) conduct transactions on your behalf (2) receive information related to Service operations, including, but not limited to, the access code provided by FFCUT ; (3) issue written instructions or notify FFCUT of any action or request from You; and (4) issue any document related to this Agreement the Service Agreement or any other Service Addendum that the Authorized Person may deem necessary or convenient.
6. In the event of death of an Authorized Person or Signatory in the Account, you shall notify FFCUT immediately and make the necessary arrangements for a new Resolution and the corresponding changes to the Service Addendum, if applicable.
1. FFCUT will credit deposits that comply with the terms and conditions of this Agreement. FFCUT may refuse to credit a deposit if the information is incomplete, illegible, inconsistent with the information given when You opened your Account, or if the deposit fails to abide by any of the provisions of applicable law.
2. FFCUT reserves the right to accept or limit any deposit, and to require the withdrawal of a deposit when it deems it convenient.
3. The initial account deposit is $10,000.00, with daily minimum balance of $10,000.00. If this balance, goes under the minimum a $9.95 fee will be charge monthly
C. Availability of Funds
1. You agree that the availability of funds deposited in the Account will be governed by this Agreement, fund transfers, exchange, and banking collection rules in force, and by applicable Federal or Delaware regulations.
2. You authorize FFCUT to adjust, debit, or credit the Account, according to the type of transfer, for the amount of any transaction returned for whatever reason, on the same Business Day in which FFCUT receives the order.
3. You authorize FFCUT to debit any of your accounts with FFCUT for the amount of any fund transfer FFCUT may have credited to the Account and for which final payment has not been received, or which for any reason has been returned to FFCUT unpaid.
4. FFCUT will not be responsible for re-deposit of items, or collection eﬀorts unless You specifically request Re-deposit and Re-Collection Services for your Account. Under no
circumstances will FFCUT be responsible for payment of returned ITEMS.
5. FFCUT may, at its discretion, re-attempt transferring funds into the Account, but is under no obligation to do so. If the new attempt is successful, FFCUT will credit the funds to the Account without interest.
D. Pledged Funds
You may pledge any funds deposited in the Account, to FFCUT as collateral security for any obligation granted to You by FFCUT, if such guarantee were required and accepted by FFCUT .
E. Transfer to Third Parties
Funds deposited in the Account shall not be pledged, assigned or transferred to third parties or institutions as a guarantee for loans or other obligations, except when authorized in writing by FFCUT.
FFCUT respects your right to confidentiality regarding your Account and will only disclose your information when required by law.
G. Legal Processes Against Accounts / Garnishments
1. You agree that FFCUT will comply with any order or writ of attachment issued by a court or governmental authority (including but not limited to the Treasury Department and the Federal Internal Revenue Service) and will freeze and/or deliver funds available in the Account at the time the order or writ of attachment is presented to FFCUT, in accordance with its terms.
2. FFCUT shall be under no obligation to contest, challenge, or question the terms of an order, notice of levy, or writ of attachment, nor shall it be under obligation to defend You or to raise any defense that You may have against the person or entity promoting the order or writ. FFCUT shall strictly comply with the terms of any such order or writ, until it has been served with an order or a resolution issued by the same court or authority indicating that it be released. Presenting evidence of payment of the debt or release of the obligation that prompted the order or notice of levy, will not suﬃce for FFCUT to release the funds.
3. If the order or writ of attachment were issued against any one of the Authorized Signatories in a joint and several accounts (and/or), FFCUT will proceed to freeze and/or deliver the funds as per the order or writ without the need to determine ownership of the funds or legality of the order or writ.
4. If the Account is subject to any legal proceeding, FFCUT may refuse to pay any item drawn against it until resolution of such proceeding. FFCUT shall not be liable to You for amounts paid pursuant to an order, attachment, or notice of levy, even if such payment precludes payment of other items from the Account.
5. FFCUT may impose a processing fee in the event it is served with an order to garnish funds in the account.
6. If FFCUT incurs in any expense including but not limited to legal fees and other disbursements related to any legal action, that are not reimbursed, FFCUT may charge the Account without prior notice to You.
7. FFCUT may, at its discretion, refuse payment orders against the Account for a reasonable period after receiving notification of an existing or potential claim against the Account.
8. Any attachment, pledge, or lien against the Account is subordinate to FFCUT ’s right of set oﬀ and security interest.
You will maintain at all times suﬃcient funds in your Account to cover all debits as well as all Service charges. If You have insuﬃcient funds in the Account, you will owe FFCUT the amount of the deficiency.
FFCUT is expressly authorized to debit your Account or any other account that You may have with FFCUT, any amount owed by You to FFCUT , without prior notice, subject to the provisions of applicable law.
I. Inactive Accounts and Unclaimed Funds
If you do not make transactions in your Account during the period indicated in the Deposit Account Addendum, FFCUT could charge a fee for inactivity until such time it is re-activated, or the Account is closed. All Accounts in which no transactions are made for a consecutive period of five (5) years or more will be closed and the funds will be transferred to the State of Delaware, to the Commissioner of Financial Institutions, or such other entity that has a right to receive such monies. FFCUT will not be responsible for such transferred funds.
J. Calls to Support Center
You understand that FFCUT may occasionally monitor and/or record telephone calls to Business Support Center and supervise its employees to ensure the quality of service. Every caller to Business Support Center is warned at the beginning of the conversation and is free to terminate the call. You fully understand the rationale behind this practice and expressly consent hereby to having your calls to Business Support Center monitored or recorded for such purposes.
METHODS TO ACCESS THE ACCOUNT AND SECURITY MEASURES
A. ATM Card (ATM)
1. It is an essential condition for issuance and use of the ATM card to maintain an active Account with FFCUT. Only Joint and Several Accounts (and/or) are eligible to receive ATM cards.
2. You may perform withdrawals from and deposits into the Account, transfer funds between diﬀerent sections of the Account at Automated Teller Machines (ATMs), and purchases in Points of Sale (POS) by using the Card and the Personal Identification Number (PIN) You select. Such transactions shall be governed by the terms and conditions of this Agreement. Cash withdrawals may not exceed $1,000 per day for a Regular ATM card.
3. The ATM card may be used to access FFCUT ’s ATMs and other electronic teller machines aﬃliated to the ATM Network, where the card will be accepted. Using your ATM card may be subject to fees charged by FFCUT or by other ATM operators.
4. Deposits made at FFCUT ’s ATMs will not be available for withdrawal or transfer until verified by FFCUT.
5. FFCUT reserves the right to authorize cash withdrawals from an ATM or POS purchases, when the ATM or POS are not in direct communication with FFCUT ’s central computer.
6. FFCUT will process transactions made at ATMS on the next Business Day after the Cut- oﬀ time indicated on each ATM.
7. Subject to applicable laws, you will be liable to FFCUT for any debit to the Account corresponding to withdrawn funds or purchased merchandise using the Card and the PIN and for overdrafts resulting from a transaction, or for withdrawn amounts in excess of the available fund balance in the Account due to such debits.
8. FFCUT may issue additional ATM cards to all Authorized Signatories and recognize the cards and corresponding PINs selected by each Authorized Signatory. Any debit to the Account corresponding to withdrawn funds or purchased merchandise by any of the Authorized Signatories through the use of the ATM card and the PIN will be deemed valid. Each Authorized Signatory will be responsible for such withdrawal(s), and release FFCUT from any responsibility arising from losses that each may suﬀer as a result of the use of the ATM Cards and PINs.
9. You are responsible for maintaining your PIN confidential in order to prevent unauthorized transactions. For this reason, you agree not to write the Personal Identification Number on the card.
10. You acknowledge that the card is property of FFCUT at all times, and You agree to return it immediately upon request. The ATM card is non- transferable.
11. FFCUT is not responsible for the acceptance or rejection of the ATM card at commercial establishments or any other establishments.
12. FFCUT may cancel the ATM card at any time without giving you prior notice. In addition, the ATM card will be automatically canceled if there is no activity over a period of 18 consecutive months.
B. Responsibility in Withdrawals and Purchases with Regular ATM Card
1. You will be responsible for all transactions at automatic teller machines and for purchases using your Regular ATM Card. The Provisions of Regulation E, which regulate electronic funds transfers in consumer accounts and FFCUT and consumer responsibility for non- authorized use, do not apply to commercial accounts. FFCUT will not be responsible for non-authorized transactions made with your Regular ATM Card; therefore, you must take the proper precautions to protect your card and your PIN number.
2. In case of non-authorized use of your Regular ATM Card, you may lose all the funds deposited in your Account, the fastest way to notify us about non-authorized use and try to prevent potential or additional losses is by calling us. If You believe your card or PIN number has been lost or stolen, call us immediately. If You have any questions or if You believe there is an error in your account statement or in an ATM or POS receipt, you may also contact us in writing to the address indicated above or by telephone to the numbers indicated above. When You contact us, you will need to state:
a. Your name and account number
b. The date of the transaction and the reference number
c. Your claim or question
d. The amount in dollars of the alleged error
D. Responsibility for Non-Authorized Use of the International ATM
1. Regulation E disclosures, which regulate electronic funds transfers in consumers’ accounts, do not apply to commercial accounts. FFCUT, however, has adopted the Zero Liability Policy which provides You protection against non-authorized transactions made with your International ATM card, subject to the conditions mentioned later on.
2. This protection is subject to the reasonable care You must exercise to prevent any non- authorized use of your card. You must immediately report any error or non-authorized use of your International ATM card. To prevent potential or additional losses, the fastest way to get in contact is by calling us. If You believe your card or PIN number has been stolen or lost, notify us immediately by following the instructions described in Section C. 2.
3. After FFCUT receives your notification, it will investigate the circumstances of the transaction and, if required, will contact You to obtain more information. If FFCUT determines that your claim is valid, a final credit for the total amount of the non-authorized transaction will be applied to your account.
4. FFCUT will NOT be responsible in the following circumstances:
a. If FFCUT reasonably understands, based on the circumstances of the alleged non- authorized use, that your actions were fraudulent or negligent regarding the management of the card; or
b. If You did not promptly notify the non-authorized use, in any case, not later than 60 days after the mailing date of the Account Statement which contains the suspected non- authorized transaction.
E. Responsibility for Withdrawals with ATM Cards
FFCUT will NOT be responsible under the following circumstances:
a. If for any reason not attributable to FFCUT, you do not have suﬃcient funds or available credit in your account to make the transfer or withdrawal;
b. If the ATM machine where you made the transaction does not have enough cash.
c. If the transfer amount exceeds the available funds in your line of credit, investment, or checking account.
d. If the ATM machine was not properly working and You knew it was not properly working when You started the transfer.
e. If You have not notified us about the loss, theft, or possible non- authorized use of your card according to the terms established in this Agreement.
f. If circumstances beyond FFCUT ’s control, such as fire or flood, prevents the transfer, despite the reasonable precautions taken by FFCUT.
g. If the funds in the account are subject to any legal process, restriction, or attachment that impedes the transfer of the funds.
F. Security Measures
1. In order to access any Service with access control, the Authorized Person shall provide the access codes or identification methods that the specific Service requires before FFCUT can accept and process your instructions. You will notify FFCUT immediately in writing, using the form required by FFCUT, of any changes regarding Authorized Persons or their corresponding authorization limit. Until such notice is received, FFCUT can accept, without further investigation, all declarations, instructions, or representations the Authorized Person makes or issues.
2. FFCUT is not responsible, explicitly, or implicitly, for questioning or verifying with You if persons using or accessing service or any Service contracted by you are, in eﬀect, an Authorized Person, or if they are acting according to your internal procedures and policies. FFCUT ’s responsibility will be limited to guaranteeing that any use or access attempt will be made using the access codes or other identification method required by FFCUT service or any other Service, according to the normal operational sequence.
3. You agree to pay any funds transfer, as well as any loss or damage, direct or indirect, if a transfer is initiated by instructions that include valid access codes or applicable identification methods, even if it may have not been initiated by an Authorized Person.
4. You understand and accept that FFCUT may execute instructions to debit or credit an Account in which the Authorized Person could have an interest and FFCUT will not have the obligation of determining if such instruction is appropriate or not.
5. You represent that You have adopted and will be responsible for the fulfillment of any and all security measures necessary to protect access to FFCUT ’s systems by each Authorized Person, as well as your directors, oﬃcers, employees and agents.
6. You guarantee that You have established commercially reasonable security procedures and that the purpose of said security procedures is to verify the authenticity of transactions in order to minimize the risk of fraud due to unauthorized access, and not to detect errors in the transmission or content of the entry. The parties have not agreed to establish a procedure to detect such errors.
7. You guarantee that You have established and will keep all internal procedures as are necessary to prevent unauthorized transmissions. You guarantee that You will not allow any individual to initiate transfers without due supervision and safeguards; and agree that You will take the necessary measures to maintain the confidentiality of security procedures, access codes, instructions, and security equipment provided by FFCUT.
8. If You suspect that unauthorized persons have had access to codes or instructions, you must notify FFCUT immediately, followed by written confirmation. Unauthorized access will not aﬀect transfers instructions executed by FFCUT before receiving said notification.
9. FFCUT will take reasonable precautions to ensure that your information, remains confidential and safe from unauthorized access by third parties. Compliance with FFCUT ’s regular security and privacy measures will satisfy FFCUT ’s obligation in this respect.
10. You agree to perform an annual audit on security to assure that the financial information of your clients is protected through security measures and practices that include, at a minimum: (a) physical safeguards to protect against robbery, illegal manipulation or damage; (b) controls related to personnel and access to protect against unauthorized access and use and (c) security in the network transmissions in order to assure the collection, storage, and distribution of the financial information.
General Terms and Conditions
The following terms will apply to fund transfers You request or receive through FFCUT ’s fund transfer service.
1. Authorization - You may request or receive electronic fund transfers (“Transfer”). Transfers may be requested to transfer funds from the Account to other accounts that You own, or to other accounts owned by third parties, either with FFCUT or with other financial institutions, or for receiving funds into your Account. You authorize FFCUT to debit or credit any Transfer (including any charges or applicable expenses) that is transacted as set forth in this Agreement. FFCUT will not search for the funds in any account other than the one specified in the Transfer request. You authorize FFCUT to transfer the funds from the Account, with authorization of the signatories who have been appointed to initiate and/or confirm Transfers.
2. Security Measures - You expressly acknowledge and agree that the measures You establish are commercially reasonable and adapt to your particular circumstances. You acknowledge that these measures are designed to detect unauthorized Transfers, and not errors in the content of the instructions. You accept responsibility for the transfer, whether or not You have authorized it, provided FFCUT has accepted the payment order subject to established security measures.
3. Selection of Beneficiary Bank - Upon requesting a fund transfer, you must designate a financial institution (“Beneficiary Bank”) to receive the funds. You may instruct the Beneficiary Bank to credit the funds to an account or to hold the funds for the recipient.
The Beneficiary Bank is responsible for following your instructions and for letting the recipient know when the funds are available.
4. Selection of the Intermediary Bank - FFCUT may select the intermediary bank or transfer system (“Intermediary Bank”) it deems appropriate under the circumstances in order to forward the funds to the recipient, including, but not limited to, Fedwire, SWIFT and must operate subject to the policies and procedures of each system. If You order FFCUT to use a particular Intermediary Bank or system to transfer funds, through which FFCUT will process the payment order, you are assuming all responsibility for errors or failure of the Intermediary Bank to pay, as well as any loss resulting from use of the means selected.
5. Agent Designation - You may select a third-party agent (“Agent”) not else considered an Authorized Signer or Authorized Representative under this Agreement, to act in Your behalf in connection with Transfers, or otherwise facilitate the same. Unless the Agent is another financial institution which is a party together with FFCUT, to a standing agreement governing Transfers, before the Agent first acts on Your behalf: (a) You must notify FFCUT of such appointment in writing, and (b) the Agent must execute such documents as FFCUT may require (if any). The Agent will be considered to be Your representative and not that of FFCUT. All Transfers carried out, or otherwise attended to or facilitated by the Agent will be governed by the terms and conditions of this Agreement as if carried out, or otherwise attended, by You personally. You will be bound by, and be liable for, all actions of the Agent in connection with Transfers, as if You were personally carrying them out. In the event of a discrepancy between the terms of a Transfer as communicated between You and the Agent, and those of the same Transfer as communicated between the Agent and FFCUT, the terms of the Transfer as communicated between the Agent and FFCUT shall prevail, and You will be bound thereby.
6. Discrepancies in Names and Numbers - If You identify the recipient, the Beneficiary Bank or the Intermediary Bank with an account number or with a name and number, the Intermediary Bank and the Beneficiary Bank may rely on said number and they will not be responsible for verifying that the account number belongs to the recipient specified on the Transfer request. This same rule will apply to FFCUT when the Transfer is being sent to You and when returning the Transfer to the remitting Bank. You acknowledge that FFCUT will not be responsible for any delays that result from FFCUT ’s attempt to clear any discrepancies between the name and account number, nor be obligated to investigate suspicious irregularities. You understand that any loss or delay due to lack of accurate identification will be your responsibility only, and not FFCUT ’s.
7. Conversion to Foreign Currency - Upon Your request, FFCUT will convert funds to the currency of the receiving country at the exchange rate in eﬀect at the time of transfer. If the final destination of the Transfer is a foreign country, FFCUT cannot guarantee that the recipient will receive the funds in US currency, even if requested. The Beneficiary Bank may charge a currency conversion fee. The actual amount received by the recipient may be less, due to fees charged by the Beneficiary Bank, including currency conversion fees. In case of Transfers received in foreign banknotes, FFCUT will convert the funds to US dollars at the prevailing exchange rate at FFCUT on the day the transfer is accepted. This rate includes a commission for the conversion service. Transfers in foreign currency may be conducted up to two (2) Business Days after FFCUT receives the request. If FFCUT were to restitute funds that have been converted to foreign currency, it would abide by the prevailing exchange rate on the date of the restitution, after deducting applicable expenses. In case of Transfers made in US dollars to a foreign country, FFCUT will not be responsible for conversion rates applied by the receiving bank.
8. Repetitive Transfers - If FFCUT or You determine that the Transfers have become repetitive, FFCUT may assign a number, name, or a combination of both, at your request, as set forth in Exhibit C – Authorization for Repetitive Transfers. In this case, you may use said number, name, or combination, to expedite future requests. FFCUT may conduct all Transfers that contain this number, name, or combination.
9. Payments to FFCUT / Fees - The amount of funds transferred, in both international transfers and transfers within the United States, could be reduced due to fees charged by the Beneficiary Bank and the Intermediary Bank, including those fees charged by FFCUT. FFCUT will deduct applicable fees from any Transaction, and will notify You by mail any time FFCUT debits or credits your Account with a Transfer. You are responsible for returning any amount credited mistakenly to your Account. You will also be responsible for expenses caused by failure to provide identification information for the Beneficiary Bank, and for any charges billed by the selected Intermediary Bank.
10. Statements of Account / Claims - All Transfers will be reflected in your periodic Account Statement. You must notify FFCUT of any errors, delays, or other problems with a fund transfer within thirty (30) days after receiving notification that the transfer was generated, or after receiving the Account Statement indicating the Transfer, whichever occurs first. If You do not notify FFCUT of any claim concerning fund transfers within one year of having received the notification or the corresponding Account Statement, all claims shall be null and void, in compliance with applicable law.
11. Delays or Failure to Execute Transfers - Generally, FFCUT makes Transfers electronically, although it could use other means. FFCUT ’s responsibility is limited, according to the provisions of the Limitation of Liability and Indemnifications provisions of this Agreement. FFCUT will not be responsible to You for delays or failure to execute fund transfers due to action or omission of the Intermediary Bank or Beneficiary Bank.
12. Cancellation or Amendment of a Fund Transfer Request - If You decide to cancel or amend a fund transfer request, you may only do so only if the funds have not yet been transferred and FFCUT has suﬃcient time to carry out your new instructions. Generally, once FFCUT has sent the funds, you cannot cancel or amend the payment order, unless the Beneficiary Bank accepts the cancellation or amendment. FFCUT and/or the Beneficiary Bank may charge a fee for cancellation or amendment of fund transfers. FFCUT is not responsible for any loss resulting from failure of the Beneficiary Bank to comply with the cancellation or amendment request.
13. Rejection of a Transfer Request - The total amount of funds needed to carry out a fund transfer and pay the service charges, or any other obligation to FFCUT , must be available in the Account at the moment of executing the fund transfer request FFCUT is under no obligation to accept a fund transfer request (entirely or partially), and may delay accepting any Transfer if (a) the Transfer requested exceeds the amount available in the Account; (b) it does not comply with security measures; (c) it is not duly authorized;(d) it does not provide the information required by FFCUT ; (e) is impractical or impossible to accept; (f) FFCUT understands that the transfer does not comply with one or more of the provisions in this Agreement, or any other federal or state law, including, but not limited to, the Oﬃce of Foreign Assets Control (OFAC): or (g) if the designated account is blocked for security reasons, or for any other reasons, such as levy or frozen assets.
14. Acceptance of Transfers - FFCUT will not be responsible in any way for accepting a fund transfer received for your benefit. Although the current practice of FFCUT is to notify You of the acceptance of a fund transfer in US dollars within two (2) Business Days after the date of receipt, if said fund transfers are made through a system other than the Automated Clearing House (ACH), FFCUT is not obligated to provide such notification. FFCUT will credit the account of the recipient on the date the Transfer is paid, if it is received before Cut- Oﬀ Time on a Business Day. If not, the account will be credited the next Business Day.
15. Provisional Payment of Received Transfers – The credit extended to You by FFCUT for transferred funds is provisional until FFCUT receives final payment of the amount transferred. Should FFCUT not receive payment for the funds, You agree to reimburse FFCUT for the Transfer amount. An unaccepted Transfer is cancelled, as provided by law, at the close of the fifth Business Day.
16. Cut-oﬀ Time - If FFCUT receives the Transfer request at Cut-Oﬀ Time or after Cut-Oﬀ Time, the request will not be processed until the next Business Day (Cut of time is 2 PM Pacific time).
Law Governing Transfers - The rights, duties, and responsibilities of the parties are governed by the provisions of the Electronic Funds Transfer Act and shall be subject to the laws of the state of Delaware and Security act of 1933. If any part of a transfer of funds involves the use of Fedwire, your rights and obligations as well as FFCUT ’s in relation to the electronic transfer shall be governed by Regulation EFT of the Federal Reserve Board.
17. Additional Documents - You agree to execute such additional agreements or other documents dealing specifically with Transfers, as FFCUT may require.
DISCLOSURE RELATED TO THE AVAILABILITY OF FUND S DEPOSITED IN TRANSACTION ACCOUNTS (REGULATION CC)
Federal Regulation requires banks to make deposited funds available to You within certain periods of time. Depending on the type of deposit, the funds may be available to You the same day, the next business day, or after several days; in most cases, the longest possible delay is until the seventh (7th) business day following the day of the deposit. During the delay period (if any), You may not withdraw the funds in cash and FFCUT will not use the funds to process payment orders issued by You.
FFCUT establishes the limits for the availability of funds deposited according with the minimum amounts required by the Regulation CC. The following explanations are intended to provide an easy guide for determining when various types of deposits (cash, electronic transfers, etc.) will be available to You for cash withdrawals and for the payment of checks against the Account. However, periodically FFCUT will review several criteria, and may provide a higher availability of funds than the limit established by the Regulation.
The availability Policy only applies to funds deposited for accounts of FFCUT held at our different banking ODFI.
A. How to Determine the Availability of Deposited Funds
The length of the delay is counted in business days, starting on the first business day after the day of the deposit. Business days are defined as every weekday, except Saturdays, Sundays, and federal holidays. Although FFCUT oﬀers services on Saturdays, Sundays, and some federal holidays, these are not considered business days.
B. Availability of Funds Deposited for Purposes of Cash Withdrawals, the Purchase of Goods and Services in Establishments that Accept the ATM Card as a Mean of Payment (Point of Sale Transactions).
1. Deposits Available for Cash Withdrawals on the Same Day of the Deposit
a. Electronic fund transfers, such as: Social Security benefits and payroll payments by direct deposit.
b. Cash: provided the telecommunications facilities of FFCUT are readily available.
c. Deposits Available for Withdrawals on the Next Business Day Following the Date of the Deposit:
2. Federal Regulation provides that certain items be available for withdrawal on the business day following the date of the deposit:
a. Wire transfers
The first $1,000 of the total deposit.
C. Delay on the Availability of Funds for Longer Periods
1. FFCUT may delay the availability of funds from check deposits for a longer period of time under the following circumstances:
a. If FFCUT believes that a check, You deposit will not be paid.
b. If there is an emergency, such as failure of FFCUT ’s communication or computer equipment, or bad weather conditions (such as a hurricane or an earthquake)
2. FFCUT will notify You if your availability to withdraw funds will be delayed for any of the foregoing reasons, and You will also be informed as to when the funds will be available. The funds will be available not later than the seventh (7th) business day following the day of the deposit.
D. Special Rules for New Accounts
If You are a new customer, electronic transfers (such as Social Security benefits and payroll payments through direct deposits) will be available for withdrawal on the same day as of the deposit. However, the following rules will apply during the first thirty (30) days after opening your Account:
1. The next business day funds available policy of $1,000.
E. Disclosure regarding to the Check Clearing or Check 21 Act (“Check 21”)
The federal law known as Check 21 was enacted to facilitate the interchange of checks between financial institutions and improve the overall eﬃciency of the payment system. This law allows the electronic interchange of checks eliminating the physical checks as they will only travel and be sorted electronically.
To make check processing faster, federal law allows banks to replace original checks with substitute checks. Substitute checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: “This is a legal copy of your check”. You can use it the same way you would use the original check.
You may use a substitute check as proof of payment just like the original check. A substitute check that meets the requirements for legal equivalence is subject to any provision of federal or state law that applies to original checks.
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