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2019-89 - Authorizing the Director of Finance to Execute an Agreement Between the City of Newport Beach and J.P. Morgan Chase Bank, N.A. in Connection with the City's Banking Services
RESOLUTION NO. 2019-89 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE DIRECTOR OF FINANCE TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND J.P. MORGAN CHASE BANK, N.A. IN CONNECTION WITH THE CITY'S BANKING SERVICES WHEREAS, pursuant to City of Newport Beach Charter Section 605, the Director of Finance is required to have custody of all public funds belonging to or under the control of the City and to deposit all funds in a depository as may be designated by resolution; WHEREAS, the City Council has reviewed the terms and conditions of a new Agreement for Banking Services between the City of Newport Beach and J.P. Morgan Chase Bank, N.A., a copy of which is attached to this Resolution as Exhibit A, and finds the proposed Agreement to be satisfactory; and WHEREAS, the City Council has reviewed the terms and conditions of a new Agreement for Merchant Card Processing Services between the City of Newport Beach, J.P. Morgan Chase Bank, N.A. and Paymentech, LLC, a copy of which is attached to this Resolution as Exhibit B, and finds the proposed Agreement to be satisfactory. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby approve the Director of Finance to execute both the Agreement for Banking Services, between the City of Newport Beach and J.P. Morgan Chase Bank, N.A., and the Agreement for Merchant Card Processing Services between the City of Newport Beach, J.P. Morgan Chase Bank, N.A. and Paymentech, LLC. Section 2: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 3: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Resolution No. 2019-89 Page 2 of 2 Section 4: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 8th day of October, 2019. ATTEST: 4A 4 d AO,'P � Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE 4 " C . aron C. Harp City Attorney P � \Q4 Diane B. Dixon Mayor Attachment(s): Exhibit A — Agreement between the City of Newport Beach and J.P. Morgan Chase Bank, N.A. for the provision of Banking Services Exhibit B —Agreement between City of Newport Beach, J. P. Morgan Chase Bank, N.A. and Paymentech, LLC. for the provision of Merchant Card Processing EXHIBIT A PROFESSIONAL SERVICES AGREEMENT WITH J.P. MORGAN CHASE BANK, N.A. FOR BANKING SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 8th day of October, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and J.P. MORGAN CHASE BANK, N.A., a national banking association ("Consultant"), whose address is 3 Park Plaza, 9th Floor, Irvine, CA 92614, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant for Banking Services ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on August 31, 2024 (the "Initial Term"), unless terminated earlier as set forth herein. This Agreement may be extended by mutual agreement of City and Consultant for ten, one-year periods after the Initial Term. The terms, conditions and pricing of any extension shall be as mutually agreed upon for each such extension. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). The Services or Work will be performed in accordance with this Agreement and Consultant's Account Terms, Addendum to Account Terms (United States of America) and Consolidated Service Terms (collectively, the "Account and Service Terms") attached hereto as Exhibit B and incorporated herein by reference. City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services within the dates and times mutually agreed to by the parties in writing. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit C and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Four Hundred Sixty -Six Thousand Two Hundred Fifteen Dollars and 00/100 ($466,215.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Invoices shall be in the form of account analysis statements (a sample of which is attached to Consultant's proposal) made available to City through Consultant's online portal for each monthly billing period. City authorizes Consultant to (a) apply City's earnings credit allowance against the amounts reflected in the account analysis statements and (b) automatically debit from City's accounts on the fifteenth (15th) calendar day of each month (unless the parties agree otherwise) any amounts that remain unpaid after Consultant applies the earnings credits allowance for such billing period. Earnings credit allowance shall be calculated and applied on a monthly basis and are not carried forward to future billing periods. J.P. Morgan Chase Bank, N.A. Page 2 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit C to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit C. 5. RELATIONSHIP MANAGER 5.1 Consultant shall designate a Relationship Manager, who shall coordinate all phases of the Project. This Relationship Manager supervises the overall performance of the Services and shall be available to City at all reasonable times during the Agreement term. Consultant has designated Heather Usiski to be its Relationship Manager. Consultant shall not remove or reassign the Relationship Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel with prior written notice to City. If prior notice is not practicable under the circumstances, Consultant shall promptly notify City as soon as practicable. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Relationship Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Relationship Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Finance Department. City's Finance Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. J.P. Morgan Chase Bank, N.A. Page 3 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards to the extent binding upon Consultant in its performance of the Services. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to perform the Services. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), to the extent the same are caused by the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them, in the performance of the Services. Consultant's liability under this Section and Section 25 shall not exceed, in the aggregate, One Million Dollars. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties or to be liable for any indirect, incidental, consequential, exemplary, punitive or special damages, including lost profits, regardless of the form of action or theory of recovery, even if Consultant has been advised J.P. Morgan Chase Bank, N.A. Page 4 of the possibility of those damages or the same are reasonably foreseeable.. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely with, and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY • Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit D, and incorporated herein by reference, subject to mutually agreeable modifications. J.P. Morgan Chase Bank, N.A. Page 5 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. Notwithstanding the foregoing, Consultant may, without prior written approval, assign this Agreement to a successor in interest in connection with a merger, reorganization, consolidation, or a disposition of a particular business to which this Agreement relates, and may assign this Agreement to an affiliate or subsidiary. In the event of such an assignment, Consultant shall notify City, and if City objects to such assignment, it shall have the right to immediately terminate this Agreement. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. For purposes of this Agreement, references to "subcontractor" and "subcontract" shall refer to a third party or an agreement with such third party, if any and as applicable, engaged by Consultant to specifically aid in the performance of services under this Agreement, but shall not include any third party engaged by Consultant, from time to time, in the performance of certain operational, technological, incidental, or back office functions that assist Consultant in its performance of services, on a common basis, for all or most of its customers utilizing such services, such latter category of third parties being referred to as Third Party Service Providers. Nothing in this Agreement shall restrict Consultant from engaging any Third Party Service Provider or require any approval in connection therewith. 17. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information: (a) to regulatory authorities having jurisdiction over Consultant or its affiliates, (b) to the extent required by applicable law or by any subpoena or other legal process, provided that Consultant J.P. Morgan Chase Bank, N.A. Page 6 provides prompt written notice to City thereof, unless notice is prohibited by the applicable law, subpoena or other legal process, so that City may seek a protective order or other appropriate remedy, (c) to Consultant's affiliates and its and its affiliates' employees, agents or subcontractors who need to know the information in connection with the performance of the Services or (d) for internal audit, compliance, operational, fraud prevention or risk management purposes. Consultant shall be responsible for any breach of this provision by Consultant's affiliates and its and its affiliates' employees, agents or subcontractors who receive Documents and other City information from Consultant pursuant to this provision. 17. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement ("Intellectual Property") to the extent such liability arises from City's use of Intellectual Property in a manner permitted under this Agreement and any written instructions provided by Consultant or its agents related to such usage ("Approved Use") and a third party claims that such Approved Use infringes upon the third party's patent, trademark, or copyright ("Infringement Claim"). Consultant is not obligated to defend or indemnify City, its agents, officers, representatives and employees against liability arising from any Infringement Claim that (a) any such party agrees to settle without Consultant's prior written consent or (b) is premised on: (i) any customization, integration, enhancement, modification or add-on that is made to or used with the Intellectual Property at City's request or provided by a party other than Consultant; (ii) use of a version of the Intellectual Property no longer supported by Consultant, or (c) use of the Intellectual Property in combination with any hardware, software or other materials and/or services not supplied by Consultant where, absent such combination, the Intellectual Property would not be infringing. Consultant's liability under this Section shall not exceed One Million Dollars in the aggregate. 18. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. in accordance with its record retention policies. Subject to its record retention policies and retention periods established thereunder for each category of records, Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. at mutually agreeable times. Subject to its record retention policies and retention periods established thereunder for each category of records, Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. The scope of any examination, audit or J.P. Morgan Chase Bank, N.A. Page 7 inspection shall exclude examination reports, internal audit reports, records relating to Consultant's performance of services for other customers or other customer accounts, or any records that Consultant is legally precluded from disclosing to third parties. Further, each examination, audit or inspection is: (a) subject to Consultant's receipt of a written request from City specifically describing the information required, (b) solely for the purpose of verifying Consultant's compliance with this Agreement and (c) subject to Consultant's security procedures and record retention policies. Consultant may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of access, and the scope of the records made available. City shall reimburse Consultant for the reasonable cost of complying with any examination, audit or inspection. 19. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. and the City Manager or designee will notify Consultant of its appeal decision within thirty (30) days of the appeal date. Consultant reserves the right to pursue legal remedies if it is not reasonably satisfied with the appeal decision. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense that City reasonably determines is greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant,, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 22. CONFLICTS OF INTEREST 22.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. J.P. Morgan Chase Bank, N.A. Page 8 22.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Subject to the limitation of liability in Section 9.1, Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. NOTICES 23.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 23.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Finance Director Finance Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 23.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Relationship Executive J.P. Morgan Chase Bank, N.A. 3 Park Plaza, 9th Floor Irvine, CA 2614 24. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 25. TERMINATION 25.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required J.P. Morgan Chase Bank, N.A. Page 9 to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 25.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. STANDARD PROVISIONS 26.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 26.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted to the extent binding upon Consultant in its performance of the Services. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. To the extent that City, county or other local laws, rules, regulations and requirements currently, or in the future, impose obligations upon City's consultants which are not expressly set forth in this Agreement, Consultant will, if notified of such requirements, endeavor to comply with the same, except to the extent that it reasonably concludes that compliance with such requirements subject it to additional obligations, liability or expense or impose upon it reporting requirements of confidential or non-public information or information that it does not currently monitor. If Consultant makes such determination, and the parties are unable to resolve these issues through mutually agreeable amendments to this Agreement, either party may terminate this Agreement upon notice to the other, and such termination shall be deemed to be a without cause termination. 26.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 26.4 Integrated Contract. This Agreement, including Exhibits A through D and any other attachments attached hereto, represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary J.P. Morgan Chase Bank, N.A. Page 10 negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 26.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other Exhibits or attachments attached hereto, the terms of this Agreement shall govern. 26.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 26.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 26.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26.9 Controllinq Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 26.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall make all reasonable efforts to not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 26.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 26.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] J.P. Morgan Chase Bank, N.A. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:0 7 Zv1 CITY OF NEWPORT BEACH, a California municipal corporation Date: By: It= �t.�.`� By: F*r: Aaron C. Harp Dan Matusiewicz City Attorney Director of Finance/Treasurer ATTEST: Date: go Leilani I. Brown City Clerk CONSULTANT: J.P. Morgan Chase Bank, N.A., a National association Date: By: Heather D. Usiski Executive Director [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Account and Service Terms Exhibit C — Schedule of Billing Rates Exhibit D — Insurance Requirements Exhibit E — Consultant's Response to City's Request for Proposals J.P. Morgan Chase Bank, N.A. Page 12 EXHIBIT A SCOPE OF SERVICES J.P. Morgan Chase Bank, N.A. Page A-1 EXHIBIT A SCOPE OF SERVICES GENERAL BANKING SERVICES 1. General Requirements: The City has three (3) separate banking relationships that shall be consolidated under this Agreement: a. Relationship #1 represents the City's primary banking relationship with 12 demand deposit accounts. There is one ZBA master and two ZBA subsidiary accounts. A summary of the accounts under Relationship #1 is listed below: 1. Returned Items 2. General Account 3. Payroll Account 4. Asset Forfeiture (Needs to be interest bearing per Federal Guidelines) 5. External Withdrawal 6. Parking Meter Revenue — Third Party Administrator (TPA) Deposits 7. Property Evidence (Police Department Administered) 8. Warrant Account (Police Department Ad ministered) 9. Restaurant Business Improvement District (TPA Managed) 10. Corona del Mar Business Improvement District (TPA Managed) 11. Workers' Comp (TPA) Disbursement Account 12. Parking Cites and Parking Pass Administration Deposits (TPA) b. Relationship #2 represents accounts that required branch locations that were not available through relationship #1 when the accounts were originally established. There are three accounts, all of which are administered by different third party vendors of the City. A summary of the accounts under Relationship #2 is listed below: 1. General Liability (TPA) Disbursement Account 2. Pet Licensing (TPA) Billing 3. Emergency Medical Services (TPA) Billing c. Relationship #3 represents one account (Bill Pay Concentration Account) used for e -lockbox processing services only. Contractor shall: 1. Comply with all applicable federal and state regulations regarding the provision of the proposed services, 2. Establish 18 or more demand deposit accounts to meet the banking requirementsand maintain accurate records of activity in thoseaccounts, 3. Offer ZBA services, and 4. Offer online banking services with mobile access. 2. Deposit Services: The City primarily makes coin and currency deposits using an armored car provider. On average, the City makes 185 deposits per month. The City's armored car provider is Garda. The City's parking vendor, AmeriPark, also makes bulk coin deposits via armored car. Parking deposits are transported by AmeriPark's contracted provider, Dunbar, and deposited to City accounts at the bank. Coins are sorted and counted by AmeriPark prior to deposit at the vault. The City anticipates a minimal number of branch deposits, less than 5 per month on average. The City's Police Department may need to occasionally utilize branch locations for deposits of confiscated cash. The City collects approximately $151,232 each month in coin and currency that is deposited at the branch and vault between the Garda and Dunbar deliveries. All deposits are made in tamper evident bags. The City orders approximately $1,817 in coin and currency per month for delivery through Garda. The City deposits approximately 8,538 checks per month, most of which have been deposited using remote deposit capture ("RDC") or image cash letter ("ICL") through the City's lockbox operations. The City's current lockbox provider relies on the City's primary bank to process the ICL deposits. If the vendor selected for Service Group 2 has the capability of processing ICL deposits, this volume level will be handled by that firm. The City would like to deposit 100% of checks received outside of the lockbox using remote deposit capture in the future. The majority of the City's check scanning is done with a Cannon CR -1901i terminal. The City also maintains a Cannon CR -55 as a backup scanner for use only as needed. The City may expand the use of RDC or ICL to two of the City's third party administrators. The City's third party administrators will require an alternative process for depositing checks until RDC or ICL has been successfully set up. Through this RFP, the City is interested in exploring the use of deposit reconciliation services to identify and track deposits from individual locations. There are approximately 10 unique locations that will need to be tracked. The City has implemented an "e -lockbox" solution to facilitate the electronic processing of payments from consumer bill payer systems for both Utility and Business License streams of payments. There are 2,111 items on average per month that go through the City's "e -lockbox". The City receives separate files with payment information for each of the two payment types accepted. The e -lockbox activity may be awarded to the vendor selected for Service Group 1 or 2. Contractor shall: 1. Process an estimated 8,537 checks per month though remote deposit capture or image cash letter, 2. Process the collection of an estimated $151,232 in coin and currency per month at a local branch or vault location, 3. Fulfill orders for currency and coin through the City's armored car provider, and 4. Provide deposit reconciliation services for at least 10 locations. 3. Disbursement Services: The City disburses approximately 1,412 checks per month for accounts payable, payroll, and various other purposes. The City has third party administrators that require check writing capabilities for City accounts. The City uses Payee Positive Pay for fraud protection. A positive pay disbursement file is being generated and delivered every Thursday by the City. The City's third party administrators would like to implement automatic transmission of positive pay disbursement files. The City pays employees on a biweekly basis. The City makes approximately $2.5 million in payments to employees. Nearly 100% of employees are on direct deposit. Contractor shall: 1. Provide payee positive pay services with online transmission of check details, 2. Provide positive pay exception item review and correction online, 3. Provide online stop payment services, 4. Provide electronic archival of cleared checks (images of front and back), 5. Provide online access to cashed check images, and 6. Return of redemption date file. 4. Electronic Transfer of Funds: The City processes approximately 2,666 ACH Credits each month, primarily for payroll purposes. Payroll ACH disbursements are sent with 2 -day settlement; the remaining ACH disbursements have 1 -day settlement. The City has not utilized same day settlement for ACH disbursements in the past. The City requires an ACH credit exposure limit of $10 million. The City initiates or receives on average 4 domestic wires per month. The City has not historically sent or received international wires. All payments processed by the City require dual authorization to be released. Contractor shall: 1. Accept and send ACH transactions, 2. Provide ACH debit blocking and fraud filter services, and 3. Provide a secure electronic method for wiring funds and initiating intra -bank transfers. 5. Reporting: The City requires access to daily reports of balances and transaction information, including current and prior day reporting of ledger balance, available balance, and summaryand details of credits/debits posted. The City reconciles its accounts on a daily basis. The City currently downloads electronic files in PDF and Excel formats from previous day reporting and would be interested in automating this process through direct transmission. The City utilizes the Tyler Munis ERP system and will be updating to the 2018 version in the near future. The City is interested in leveraging the new ERP system by using more automated processes and workflows and less manual intervention. Approximately 10 City employees have access to the bank's online reporting system. The City has 3 individuals identified as system administrators overseeing employee access. Required services include: 1. Provide online balance reporting services, 2. Allow approximately 20 City employees with different levels of authorization to access the bank's online reporting system, 3. Provide current day and prior day reporting with the ability to view activity online and export to Excel for at least 180 days. 4. Provide account reconciliation services for disbursements and deposits (full, partialor positive pay, depending on account), 5. Provide online monthly activity statements and reports for all accounts by the third business day of the following month, 6. Provide details of all transactions from monthly statements in Excel format. Details required include check number and merchant ID for merchant card deposits, 7. Provide detailed event notifications (email preferred) regarding Returned Items (including check image) and Debit/Credit Memos (with detailed explanation), and B. Provide a detailed monthly account analysis statement for each individual account anda consolidated statement showing charges for all account services. 6. Bank Balances: Over the last year, bank balances have fluctuated from $5.8 million to $11.6 million with an average of approximately $8.3 million. The City is willing to consider holdingthese balances as compensating balances or using an automated sweep into a money market mutual fund or repurchase agreement. Contractor shall: 1. Provide a competitive earnings credit rate for uninvested balances, 2. Provide an overnight investment service (sweep) and/or interest bearing account for excess cash balances in the demand deposit accounts, and 3. Collateralize uninsured collected balances in accordance with California Government Code. MERCHANT CARD SERVICES 1. General Information: The City processes approximately $22 million in merchant card volume annually. The table below summarizes the annual dollar amount and annual transactions foreach card type. Card Type Annual Sales Annual Transactions MasterCard $5.96 million 196,872 Visa $15.47 million 501,600 Discover $0.14 million 7,668 American Express $0.39 million 45,444 Total $21.96 million 751,584 The City processes merchant card transactions using twenty-one (21) merchant identification numbers. The City currently uses and owns eight (8) VERIFONE VX520 terminals for card present transactions. In addition to the eight (8) terminals mentioned above, various departments throughout the City are using specialty third -party payment software/applications that meet their requirements. All of the current third -party software applications and their corresponding gateways are listed below: Department / Location Software Application / Vendor Current Gateway Internet - City Website Whitman TSYS Internet - City Website Quest TSYS Internet - onlinebiller.com InfoSend TSYS Library - Print Stations Millennium TSYS Library - Kiosks Millennium USA Technologies Internet - Active.net Active.net Active.Net Internet - MINDBODY MINDBODY TSYS Internet - ParkMobile ParkMobile TSYS Parking - Meters IPS IPS Group Parking - Pay Stations T2 Chase Paymentech Internet - pticket.com Turbo Data Systems Authorize.Net Internet - iPERMIT Accela Elavon Internet - mlflagnb.com sportsengine Sporting Edge Internet - Marina Park/Harbor MarinaWare Stripe Electric Vehicle Charging Stations ChargePoint EVGO Internet - Catalina Flyer Parking ParkMobile Reservation Chase Paymentech Internet - NBPD Alarms CryWolf L2G In addition to the third -party applications listed above, the City has several internally developed and maintained web portals that accept payments online. The City's internal applications are able to work with any processor. The City is currently a Level 3 PCI entity. The City is completing a separate Self -Assessment Questionnaire (SAQ) for each of its MIDs. The City would prefer to complete only one SAQ for all MIDs. The City currently has quarterly security scans completed by ScanData. 2. Requirements: The City will require that Contractor provide services on a pass- through basis (versus bundled pricing) and that all fees paid to card -issuing banks, card associations, and the payment processors be disclosed. Monthly statements are needed foreach individual merchant location and a consolidated statement showing charges for all accounts. Merchant processing fees will be invoiced to the City and paid monthly Contractor shall: 1. Provide Payment Card Industry Data Security Standard (PCI DSS) compliant merchant card services or contract with a third party processor to do so, 2. Process credit card payments (MasterCard, Visa, and Discover), 3. Process payments initiated from the City's gateway providers, 4. Process online payments, 5. Process debit card transactions via swipe and PIN -based methods, 6. Transfer funds to a designated City bank account, 7. Provide robust online reporting tools and option of downloading transaction / report data, 8. Provide a detailed online monthly invoices for each individual merchant location and a consolidated statement showing charges for all account services, 9. Clearly split out interchange and assessment fees on monthly invoices through a pass- through pricing model, and 10. Provide reliable technical support for PCI DSS compliance efforts (ad hoc service, service provider relationship support) and provide detailed online compliance reporting tools. EXHIBIT B ACCOUNT AND SERVICE TERMS J.P. Morgan Chase Bank, N.A. Page B-1 ACCOUNT TERMS V1.5 09 16 17 INTRODUCTION This document, as amended or supplemented by account addenda for each country in which the Accounts are held, (collectively, the "Account Terms") contains the general terms, conditions and disclosures for the Accounts and Services selected by the Customer and constitutes an agreement between the Bank and the Customer and supersedes all previous drafts, discussions and negotiations, whether oral or written, between them in connection with the opening of Accounts and receipt of Services. References to "the Bank" shall mean JPMorgan Chase Bank, N.A., and any of its affiliates. References to the "Customer" shall mean the entity to which the Bank, as an independent contractor, provides Accounts and Services, including any entity that is bound by a Subsidiary Election Agreement (not applicable in all jurisdictions), as may be amended from time to time. All accounts subject to the Account Terms are, regardless of their location, referred to as "Accounts". The Account Terms may be supplemented or amended as set forth in Section 17.6 (Amendments; Supplement; Waivers) herein. References to "Services" shall mean services offered by the Bank and subject to the Account Terms and any applicable Service Terms. References to "Service Terms" shall mean any terms and conditions regarding specific types of Accounts or Services that are subject to the Account Terms. In addition to the Account Terms and Service Terms, the Accounts are subject to other Account -related documentation, including signature cards and application forms (the "Account Documentation"). The Customer shall not transfer any of its rights and obligations in an Account or with respect to a Service, or create any form of security interest over such rights and obligations in an Account, without the prior written consent of the Bank. Failure to obtain the Bank's prior written consent constitutes a breach of these Account Terms by the Customer and may result in immediate closure of Accounts or termination of Services. The Account Terms, Account Documentation and Service Terns may vary applicable law to the maximum extent permitted under any such law. Any provision of applicable law that cannot be varied shall supersede any conflicting term of the Account Terms, Account Documentation or Service Terms. Authorized Persons. 1.1 Authorized Persons. The Bank is authorized to rely upon any document that identifies a person authorized to act on behalf of the Customer ("Authorized Person") with respect to the Accounts and Services, until the authority for such Authorized Person is withdrawn by the Customer upon written notice to the Bank, and the Bank has had a reasonable opportunity to act on such notice. The Customer will provide a specimen signature for each Authorized Person in the manner requested by the Bank. 11 Authorizations. Each Authorized Person is independent of the Bank, and, subject to any written limitation provided by the Customer and received and accepted by the Bank, is authorized on behalf of the Customer to: open, operate and close Accounts; overdraw Accounts as permitted by the Bank; appoint and remove Authorized Persons; execute or otherwise agree to any form of agreement relating to the Accounts or Services, including Account Documentation; execute guarantees, indemnities or other undertakings to the Bank in relation to guarantees, letters of credit or other financial transactions, or in relation to missing documents; draw, accept, endorse or discount checks, drafts, bills of exchange, notes and other financial instruments ("Items"); receive materials related to security procedures; and give instructions ("Instructions"), including requests and payment orders, by means other than the signing of an Item, with respect to any Account transaction. Without limitation, such Instructions may direct: (i) the payment, transfer or withdrawal of funds; (ii) the disposition of money, credits, items or property at any time held by the Bank for account of the Customer; (iii) the provision of access as described in Section 1.4 (Third Party Access) and Section 2.1 (Third Party Instructions) below; or (iv) any other transaction of the Customer with the Bank. 1.3 Facsimile Signatures. If the Customer provides the Bank with facsimile signature specimens, or if the Customer issues Items with a facsimile signature on one or more occasions, the Bank is authorized to pay Items signed by facsimile signature (including computer generated signatures) if the actual or purported facsimile signature, regardless of how or by whom affixed, resembles the specimens filed with the Bank by the Customer, or resembles a specimen facsimile signature otherwise employed for the Customer's benefit. 1.4 Third Party Access. The Customer may request that the Bank permit a third party to have access to an Account by submitting an access request in a form acceptable to the Bank (an "Access Request", and the third party designated in such form will be referred to as a "Third Party"). Each Third Party is authorized by the Customer to issue Instructions to the Bank in relation to an Account, including to initiate payments and transfers against an Account, and to access and receive balance and transaction information (including account statements, information reporting and transaction advices) by any method of communication, including the Bank's electronic channels, facsimile transmission, in writing, by telephone and SWIFT, and the Bank is authorized to act on such Instructions and provide such access as described in this Section and Section 2.1 (Third Party Instructions) below. Subject to the Third Party's completion of documentation required by the Bank, the Bank is authorized to act upon any Instructions issued in the name of any authorized person of the Third Party who has been nominated by the Third Party in a form acceptable to the Bank, and such authorized person shall be deemed an Authorized Person with respect to the provisions of these Account Terms relating to the use of the Accounts and the giving of Instructions with respect to the Accounts. The Customer may revoke an Access Request at any time by giving the Bank written notice of such revocation; such revocation shall be effective when the Bank has received such notice and has had a reasonable opportunity to act upon it. 2. Instructions; Security Procedures. 2.1 Security Procedures Generally. When issuing Instructions, the Customer is required to follow the Bank's security procedures as communicated to the Customer by the Bank from time to time, including the procedures set forth herein, and shall be bound by such security procedures for use of the Service. Upon receipt of an Instruction, the Bank will use the security procedures to verify that the Instruction is effective as that of the Customer. A security procedure may require the use of algorithms or other codes. identifying words or numbers, encryption, call back procedures Page 1 of 37 or similar security devices. It is understood that the purpose of the security procedure is to verify the authenticity of, and not to detect errors in, Instructions. The Customer shall safeguard the security procedure and make it available only to persons that it has authorized. Any Instruction, the authenticity of which has been verified through such security procedure, shall be effective as that of the Customer, whether or not authorized. An authenticated SWIFT or host -to -host (secure communications channel for data transfer) message issued to the Bank in the name of the Customer shall be deemed to have been given by an Authorized Person. For SWIFT, the security procedure shall be the authentication procedures established by SWIFT. Security Procedure for Verbal or Written Instructions. Unless the Customer and the Bank have agreed in writing to an alternate security procedure, the Bank may verify the authenticity of verbal or written (including those transmitted by facsimile) funds transfer Instructions by telephonic call-back to an Authorized Person. The Customer agrees that this security procedure is commercially reasonable for such Instructions. Third Party Instructions. The security procedures applicable to Instructions from any Third Party shall be those security procedures established by the Bank with the Third Party. Any Instruction that the Bank receives from the Third Party, the authenticity of which has been verified through such security procedure, shall be effective as that of the Customer, whether or not authorized, and shall be deemed an Instruction given on behalf of the Customer for all purposes of these Account Terms. The Bank is authorized to act upon any Instructions received via any of the SWIFT BIC codes specified in an Access Request whether or not such SWIFT BIC codes are associated with the Customer or the Third Party. 22 Confirmations. If the Customer, other than with respect to security procedures, chooses to confirm an Instruction, any confirmation must be clearly marked as a confirmation, and, if there is any discrepancy between an Instruction and a confirmation, the terns of the Instruction shall prevail. Subject to Section 2.1 (Security Procedure for Verbal or Written Instructions), the Bank may, at its option, confirm or clarify any request or Instruction using any means, even if a security procedure appears to have been followed. If the Bank is not satisfied with any confirmation or clarification, it may decline to honor the Instruction. 3. Deposits. 3.1 Processing Incoming Items. All Items deposited or cashed are received for collection only, and are received subject to final payment. The Bank may agree with other banks and clearing houses to vary procedures regarding the collection or return of Items, and deadlines to the extent permitted by applicable law or practice. The Bank chooses the method of collecting Items and may use other banks in the process. The Bank will present Items in accordance with the custom and practice of the jurisdictions in which the Items are handled for collection. The Bank is not responsible for actions or omissions of other banks, nor for the loss or destruction of any Item in the possession of other banks or in transit. The Customer shall use reasonable efforts to assist the Bank in locating or obtaining replacements of Items lost while in the Bank's possession. 32 Availability of Funds; Credits Not Received. Credits and deposits to an Account will be available in accordance with the Bank's availability polity and applicable law. If the Bank credits an Account: (i) in contemplation of receiving funds for the Customer's credit and those funds are not actually received by the Bank; or (ii) in reliance on a transaction which is subsequently returned, reversed, set aside or revoked, or if the Bank does not receive funds for the Customer's credit for value on the date advised by or on behalf of the Customer, or if final settlement is not received by the Bank for any reason, then the Bank shall be entitled to debit any Account of the Customer with the amount previously credited and/or with any other charges incurred, even if doing so creates or increases an overdraft. 3.3 Collection Basis Processing. If an Item is processed by the Bank on a collection basis, the Bank may defer credit to the relevant Account until it has received final, non-reversible, payment in accordance with applicable law and market practice. 4. Payment of Items. 4.1 Processing Outgoing Items. The Bank is authorized to pay any Item drawn on the Account, in accordance with the Bank's usual procedures, including any Item that purports to be a substitute check. The Bank is authorized to debit the Account on which the Item is drawn on the day the Item is presented, certified or accepted, or at such earlier time when the Bank receives notice by electronic or other means that an Item drawn on an Account has been deposited for collection. The Bank may determine Account balances in order to decide whether to dishonor an Item for insufficient funds at any time between receiving such presentment or notice and the time of the return of the Item, and need make no more than one such determination. 4.2 No Inquiry. The Bank is authorized to pay all Items presented to it or cashed at the Bank, regardless of amount and without inquiry as to the circumstances of issue, negotiation or endorsement or as to the disposition of proceeds, even if drawn, endorsed or payable to cash, bearer or the order of the signer or any Authorized Person or to a lender in payment of the signer's or Authorized Person's obligations. 4.3 Limitations. The Customer shall immediately notify the Bank if it becomes aware that any Items (whether completed or blank) are lost or stolen. The Customer shall not allow any third party to issue Items against or otherwise use the Accounts unless specifically agreed to in writing by the Bank. The Customer shall not issue Items that are post-dated, and the Bank shall not be liable for any damages caused by premature payment or certification of a postdated Item. Further, the Customer shall not put any condition, restriction or legend on any Item, and the Bank is not required to comply with any such condition, restriction or legend. 4.4 Electronic Processing; Specifications. The Bank may process any Item by electronic means. All Items issued by the Customer against any Account must comply with industry standards and the Bank's check specifications and image standards, published from time to time. The Bank shall not be liable for damages or losses due to any delay or failure in procuring, collecting or paying Items not conforming to such specifications or standards, except to the extent such losses or damages are the direct result of the Bank's gross negligence or willful misconduct. Page 2 of 37 & Funds Transfer Instructions. 5.1 Processing Funds Transfer Instructions. The Customer may issue funds transfer Instructions against Accounts, subject to the Bank's acceptance. Funds transfer Instructions will be received, processed and transmitted only on the Bank's funds transfer business days, and within the Bank's established cut-off hours on such days. Communications requesting cancellation or amendment of funds transfer Instructions must be clearly marked as such and received at a time and in a manner affording the Bank a reasonable opportunity to act on the communication. The Customer may reverse, amend, cancel or revoke any Instructions only with the consent of the Bank and, if applicable, the beneficiary's bank. The Bank will debit the Account for the amount of each funds transfer Instruction accepted by the Bank, and the Customer authorizes the Bank to debit the Account for, or deduct from the amount of the funds transfer, all associated fees, including debit and credit processing charges. In processing a funds transfer, other banks may deduct fees from the funds transfer. No restrictions upon the acceptance of funds transfer Instructions by the Bank or upon the Accounts that the Bank may debit shall be binding unless agreed to by the Bank in writing. The Bank shall not be required to inquire into the circumstances of any transaction. 5.2 Acting on Instructions. Notwithstanding any Instructions by the Customer to the contrary, the Bank reserves the right to use any funds transfer system and any intermediary bank in the execution of any funds transfer Instruction and may otherwise use any means of executing the funds transfer Instruction that the Bank deems reasonable in the circumstances. 5.3 Inconsistent Name and Number. The Bank and other financial institutions, including the beneficiary's bank, may rely upon the identifying number of the beneficiary, the beneficiary's bank or any intermediary bank included in a funds transfer Instruction, even if it identifies a person different from the beneficiary, the beneficiary's bank or intermediary bank identified by name. U Foreign Exchange. If the Bank accepts a funds transfer Instruction issued in the Customer's name for payment in a currency (the "Non -Account Currency") other than the currency of the Account (the "Account Currency"), the Bank is authorized to enter into a foreign exchange transaction to sell to the Customer the amount of Non -Account Currency required to complete the funds transfer and debit the Account for the purchase price of the Non -Account Currency. If the Bank accepts a funds transfer Instruction for payment to the Account in a Non -Account Currency, the Bank is authorized to purchase the Non -Account Currency from the Customer and to credit the purchase price to the Customer's Account in lieu of the Non -Account Currency. The purchase price for the foregoing transactions shall be at a rate and spread as the Bank determines in its discretion and may differ from rates at which comparable transactions are entered into with other customers or the range of foreign exchange rates at which the Bank otherwise enters into foreign exchange transactions on the relevant date. Further, (i) the Bank may execute such foreign exchange transactions in such manner as the Bank determines in its sole discretion; and (ii) the Bank may manage the associated risks of the Bank's own position in the market in a manner it deems appropriate without regard to the impact of such activities on the Customer. The Bank may also earn a profit which may be imbedded in the applicable rate and/or spread. Any such foreign exchange transaction will be between the Bank and the Customer as principals, and the Bank will not be acting as agent or fiduciary for the Customer. Foreign Exchange Cancellations, Reversals and Buybacks. Notwithstanding any prior action or course of dealing, subject to applicable law, the Bank has no obligation to cancel, reverse or otherwise buy back foreign currencies purchased by the Customer under a Service and the Bank makes no commitment to buy back currencies. The Customer acknowledges that it may not be able to sell back certain foreign currencies once purchased. 5.5 Cancellation of Foreign Exchange Drafts. Subject to applicable law, the Bank may cancel any draft issued by the Bank on behalf of the Customer in a Non -Account Currency if the draft is not presented for payment within one hundred eighty (t 80) calendar days after the date of issuance, and the Customer authorizes the Bank to recredit the Customer's Account with an equivalent amount of Account Currency at a foreign exchange rate and spread, and at such date and time, as the Bank determines in its discretion. Following such cancellation, the Customer shall be responsible for all claims that may be asserted against the Bank in respect of the draft. 6. Interest; Fees; Taxes. 6.1 Interest. The Bank may pay interest on balances in interest-bearing Accounts at rates determined by the Bank, subject to any withholding or deduction for tax as required by applicable law, including without limitation the Foreign Account Tax Compliance Act ("FATCA") and is authorized to perform any other function (including debiting, blocking or suspending the Accounts) as required by applicable law or practice of any relevant government, regulatory, judicial or tax authority or in accordance with the Bank's usual business practice. The Bank may deduct from the Accounts charges for early withdrawals, which may include a deduction from principal (if permitted or required by law). To the extent market interest rates are negative, the rate applied by the Bank to interest-bearing Accounts may be negative, in which case the Customer may be required to make a negative rate payment, which the Bank shall also be entitled to collect by debiting the Account. 6.2 Fees and Taxes. (a) The Bank may impose and the Customer will pay fees for Accounts and Services provided by the Bank, including transaction, maintenance, balance -deficiency, and service fees and other charges (collectively "Fees"). The Bank may debit any Account for Fees and/or Taxes, even if such debit creates or increases an overdraft of the Account. References to "Taxes" shall mean any taxes (including value added taxes, sales taxes and similar taxes), levies, imposts, deductions, charges, stamp, transaction and other duties and withholdings (together with any related interest, penalties, fines, and expenses) in connection with the Fees, Accounts or Services (including payments or receipts to an Account) except if such Taxes are imposed on the overall net income of the Bank. (b) All payments (including Fees and interest on overdrafts) from the Customer to the Bank pursuant to the Account Terms, the Service Terms and any Account Documentation shall be in full, without set-off or counterclaim, and free of any withholding or deduction (collectively, a Page 3 of 37 "Deduction") related to any tax or other claim, unless a Deduction is required by applicable law. If any Deduction is required by applicable law in respect of any payment due to the Bank, the Customer shall: (i) ensure that the Deduction is made; (ii) pay the amount of the Deduction as required by applicable law; (iii) increase the payment in respect of which the Deduction is required so that the net amount received by the Bank after the Deduction shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any Deduction; and (iv) deliver to the Bank, within thirty (30) days after it has made payment to the applicable authority, a certified copy of the original receipt issued by the authority, evidencing the payment to the authority of all amounts required to be deducted. (c) All Fees are exclusive of Taxes. In addition to any Fees or other amounts due and except to the extent the Bank is otherwise compensated for such Taxes under this Section 6, the Customer will pay or reimburse the Bank for any Taxes which the Bank is required to account for to any tax authority under any applicable law and, where required by applicable law, the Customer shall account for any Taxes directly to the applicable tax authority. 6.3 Documentation and Information. The Customer will provide the Bank with such documentation and information as the Bank may require in connection with taxation, and warrants that such information is true and correct in every respect and shall immediately notify the Bank if any information requires updating or correction. Account Statements. The Bank will issue Account statements, confirmations, or advices ("Account Statements") at the frequency and in the manner advised to the Customer from time to time. The Customer is responsible for ensuring that an Authorized Person promptly examines each Account Statement and any accompanying Items that are made available to it by the Bank, and reporting any irregularities to the Bank in writing, including any claim of unauthorized funds transfer activity. The Bank shall not be responsible for the Customer's reliance on balance, transaction or related information that is subsequently updated or corrected or for the accuracy or timeliness of information supplied by any third party to the Bank. IntemetAccount Statements or electronic Account Statements, if applicable, shall be deemed by the Customer and the Bank to be available to the Customer when the Account Statements are posted on the intemet and the Bank sends an electronic mail notification of availability to the Customer, or when the Bank sends the electronic Account Statement to the Customer. For purposes of determining when an Item is sent to the Customer, an image of an Item or information identifying the Item (i.e. Item number, amount and date of payment) is a sufficient substitute for the actual Item. & Overdrafts. 8.1 Overdrafts. The Bank may debit an Account even if the debit may cause or increase an overdraft. Unless otherwise agreed in writing, the Bank is under no obligation to permit any overdraft or to continue to permit overdrafts after having permitted an overdraft or to provide notice of any refusal to permit an overdraft, in each case notwithstanding any prior action or course of dealing. Any overdraft shall be immediately due and payable by the Customer to the Bank, unless otherwise agreed in writing. If the Bank permits an overdraft, the Bank is authorized to charge interest on the amount of the overdraft as long as the overdraft is outstanding, at a rate determined by the Bank, up to the maximum rate permitted by law at the time of the overdraft or at the specific rate agreed in writing between the Customer and the Bank. Subject to applicable law, interest shall accrue on any negative balance in an Account notwithstanding closure of the Account and/or termination of these Account Terms. If the Bank pays an Item that causes or increases an overdraft, the Bank may deduct applicable Fees and expenses from the Account without notice. IL2 Order of Payment. When Items and other debits to the Account are presented to the Bank for payment on the same day and there are insufficient available funds in the Account to pay all of these transactions, the Bank may choose the order in which it pays transactions, including the largest transaction first or any other order determined by the Bank, in its sole discretion. 9. Set Off. The Bank may at any time, without prejudice to any other rights which it may have, and without prior notice or demand for payment, combine, consolidate or merge all or any of the Accounts of the Customer or may retain, apply or set off any money, deposits or balances held in, or standing to the credit of, any Account in any currency towards payment of any amount owing by the Customer to the Bank or any of its affiliates. The Bank shall be entitled to accelerate the maturity of any time deposit or fixed term deposit. For the purposes of this Section the Bank may effect currency conversions at such times or rates as it may think reasonable and may effect such transfers between any Accounts as it considers necessary. The Customer grants to the Bank a lien and security interest in any Accounts of the Customer at the Bank, in order to secure any and all obligations and liabilities of the Customer to the Bank or any of is affiliates. 10. Agents; Information. 10.1 Confidential Information. The Bank agrees to take customary and reasonable measures to maintain the confidentiality of Customer confidential information. The Customer authorizes the Bank and its affiliates, and their respective agents, employees, officers and directors to disclose Account opening documentation, information with respect to any Account or Service, any banking transaction, and the Customer itself, including Customer confidential information, in order to provide the services under the Account Terms, Account Documentation and Service Terms, for Page 4 of 37 compliance with legal, tax and regulatory requirements, including without limitation FATCA, and for the Bank's operational purposes, risk management and compliance with internal policies: (i) to unaffiliated third parties, including the transmission of information to other banks and clearing houses and through channels and networks operated by third parties, and to agents of the Bank; (ii) to a proposed assignee of the rights of the Bank; (iii) to branches and affiliates of the Bank; (iv) to the auditors, legal advisers and consultants of the Bank, its branches and affiliates; (v) to the auditors of the Customer; (vi) to the Bank's or its affiliates' or the Customer's examiners or other regulators, including tax authorities, law enforcement agencies, courts of competent jurisdiction or other official bodies, anywhere in the world; and (vii) pursuant to subpoena or other court process, or to establish, exercise or defend the legal rights, or satisfy the legal obligations, of the Bank and its affiliates. 10.2 Agents. The Bank may retain agents to perform data processing, collection and other services in connection with the Accounts and Services. 10 3 Offshoring. Subject to applicable laws, including without limitation FATCA, processing of Customer confidential information may be performed by any Bank affiliate, including affiliates, branches and units located in any country in which we conduct business or have a service provider. The Customer authorizes the Bank to transfer Customer Information to such affiliates, branches and units at such locations as the Bank deems appropriate. 10.4 Consents. The Customer represents and warrants that prior to submitting to the Bank information about natural persons related to the Customer (including Authorized Persons, users of the Bank's electronic access systems, officers and directors, employees, beneficial owners, and customers and persons on whose behalf the Customer is receiving or transmitting funds, issuing items or maintaining an Account), the Customer shall have obtained such consents as may be required by applicable law or agreement, for the Bank to process and use the information for purposes of providing the Services. 11. Liability Limitation; Force Majeure. 11,1 Liability. The Bank, its agents, employees, officers and directors, shall not be liable for any damage, loss, expense or liability of any nature which the Customer may suffer or incur, except to the extent of direct losses or expenses resulting from the gross negligence orwillful misconduct of the Bank, its agents, employees, officers or directors. The Bank, its agents, employees, officers and directors shall not, in any event, be liable for indirect, special, consequential or punitive loss or damage of any kind (including lost profits, loss of business or loss of goodwill), in each case, whether or not foreseeable, even if the Bank, its agents, employees, officers or directors have been advised of the likelihood of such loss or damage, and regardless of whether the claim for loss or damage is made in negligence, gross negligence, for breach of contract or otherwise; provided, however, that the foregoing shall not apply to the extent such loss or damage is caused by fraud on the part of the Bank, its agents, employees, officers or directors. Customer shall promptly provide the Bank with a notice of any claims it receives regarding a Service. 11.2 Force Majeure. Neither the Bank nor the Customer shall be liable for any loss or damage, expense or liability of any nature to the other for its failure to perform or delay in the performance of its obligations resulting from an act of God, act of governmental or other authority, de jure or de facto, legal constraint, civil or labour disturbance, fraud or forgery (other than on the part of the other party or its employees), war, terohsm, catastrophe, fire, flood or electrical, computer, mechanical or telecommunications failure or malfunction, including inability to obtain or interruption of communications facilities, or failure of any agent or correspondent, or unavailability or failure of or the effect of rules or operations of a payment or funds transfer system, including non-availability of appropriate foreign exchange or foreign currency, or any cause beyond its reasonable control. 12 Indemnity. The Customer indemnifies and holds the Bank, and its agents, employees, officers and directors, harmless from and against any and all claims, damages, demands, judgments, liabilities, losses, costs and expenses (including attomeys' fees) (collectively, "Losses") arising out of or resulting from: (i) the Bank's acceptance or execution of any request, direction or transaction in connection with any Account or any Service provided to the Customer, including Items and Instructions; or (ii) the Bank's payment of any taxes, interest or penalty otherwise due from the Customer paid on the Customer's behalf, or for which the Bank has no responsibility under the Account Terms, the Service Terms or any Account Documentation. Notwithstanding the foregoing, the Bank shall not be indemnified for any Losses to the extent resulting directly from its own gross negligence, willful misconduct or fraud. 13. Notices. All Account Statements and notices may be sent to the Customer by ordinary mail, courier, facsimile transmission, electronic transmission (including SWIFT communication and emails), through internet sites, or by such other means as the Customer and the Bank may agree upon from time to time, at the address of the Customer provided to the Bank. Unless otherwise arranged, all notices to the Bank must be sent to the Bank officer or service representative managing the Account or to any other address notified by the Bank to the Customer in writing from time to time, and must be sent by ordinary mail, by courier, by facsimile transmission, by electronic transmission or by such other means as the Customer and the Bank agree upon from time to time The Bank shall have a reasonable time to act on any notices received. 14. Termination. Unless otherwise agreed, either the Bank or the Customer may close an Account or terminate a Service by giving the other party not less than thirty (30) calendar days' prior written notice of intent to close or terminate. Notwithstanding the foregoing, either party may terminate an Account or a Service upon written notice to the other party in the event of: (i) a breach of the Account Terms, Account Documentation or Service Terms by the other party; (ii) the other party's inability to meet its debts as they become due, receivership, administration, liquidation, or voluntary or Page 5 of 37 involuntary bankruptcy; or the institution of any proceeding therefor, any assignment for the benefit of the other party's creditors, or anything analogous to the foregoing in any applicable jurisdiction, or a determination in good faith by the terminating party that the financial or business condition of the other party has become impaired; (iii) a determination by the terminating party, in its sole opinion, that termination is necessary or required by applicable legal, tax or regulatory requirements, or as a result of a court or regulatory agency order or proceeding; or (iv) a good faith belief by the terminating party that the other party is engaged in activities that are inconsistent with the terminating party's policies. The Bank shall have a reasonable opportunity to act upon any termination request. The Bank shall not be precluded from completing a request or Instruction received by it prior to a termination request based on receipt of such termination request. Notwithstanding anything to the contrary in any Service Terms, upon the closing of an Account, all Services linked to such Account are simultaneously terminated (unless otherwise specifically agreed to by the parties) and the Bank's obligations in respect of such Account or Services will terminate. However, any such closing or termination shall not affect the Customer's liabilities to the Bank arising prior to, or on, such closing or termination, all of which shall continue in full force and effect. In the absence of Instructions from the Customer, the Bank may transfer balances to an unclaimed moneys account, or issue a cashier's check. sending it to the address of the Customer provided to the Bank. I& Account Disclosures. 15.1 Rejection of Funds. The Bank may return or refuse to accept all or any part of a deposit or credit to an Account, at any time, and will not be liable to the Customer for doing so, even if such action causes outstanding Items to be dishonored and returned, or payment orders to be rejected. 15.2 Withdrawal. The Bank may refuse to allow withdrawals from Accounts in certain circumstances, including where: (i) there appears to be a dispute relating to an Account, including disputes regarding the persons authorized to issue Instructions; (ii) legal process affecting the Account is received by the Bank, including a levy, restraining notice or, order of a court or other competent authority; (iii) the Account is being used as collateral to secure indebtedness to the Bank or its affiliates; (iv) documentation requested by the Bank has not been presented; or (v) the Customer fails to pay its indebtedness to the Bank or its affiliates on time. 15.3 Payable Branch; Deposits Outside of the U.S. Any amount standing to the credit of any Account with the Bank is payable exclusively at a branch in the country at which the Account is held; however, payment may be suspended from time to time in order to comply with any applicable law, governmental decree or similar order, in any jurisdiction, for the time period affecting the Bank, its officers, employees, affiliates, subsidiaries, agents or correspondents. The Customer acknowledges that deposits held in a branch of the Bank located outside the United States are not payable in the United States and: (i) are not insured by the Federal Deposit Insurance Corporation or any other United States governmental agency; (ii) are subject to cross-border risks; and (iii) have a lesser preference as compared to deposits held in the United States in the event of a liquidation of the Bank. 154 Commissions and Rebates. In connection with the provision of any Service by the Bank to the Customer, the Bank may from time to time receive commission, rebate or similar payments from other banks or third parties. I& Governing Law. 16.1 Governing Law. The Account Terms, the relevant Account Documentation and the rights and obligations of the Customer and the Bank in respect of each Account shall be governed by and construed in accordance with the laws of the country in which the branch holding the relevant Account is located. 16.2 Waiver of Jury Trial; Limitation of Claims. The Customer and the Bank hereby irrevocably waive all right to, and will not seek, trial by jury in any action, proceeding or counterclaim, of whatever type or nature, arising out of these Account Terms, the Account Documentation or the relationship established hereby. Any claim in connection with any Account or Service, unless a shorter period of time is expressly provided, must be brought against the Bank within two (2) years of the occurrence of the event giving rise to the claim, except as prohibited by applicable law. 16.3 Venue. In relation to each Account, the courts of the country or state in which the branch of the Bank at which the Account is held shall have exclusive jurisdiction to settle any disputes that arise out of or are connected with the Account Terms, the Account Documentation and/or the Account and the Customer agrees to submit to the jurisdiction of such courts. This section is for the benefit of the Bank only and does not prevent the Bank from taking proceedings in the courts of any other country or state with jurisdiction including, to the extent allowed by law, concurrently in any number of countries or states. 17. Miscellaneous. 17.1 Languages. If the Account Terms, Account Documentation or Service Terms are translated into, or appear in a language other than English, the English language version shall control. 17.2 Successors. The term Bank in the Account Terms, the Service Terms and any Account Documentation shall include any successors of the Bank, including assignees or successors of JPMorgan Chase Bank, N.A. or its affiliates or any person who under the laws of its jurisdiction of incorporation or domicile, has assumed the rights and obligations of the Bank or its affiliates hereunder or to which the same has been transferred. The Bank may, at any time, assign or transfer all or any of its rights and obligations hereunder to an affiliate of JPMorgan Chase Bank, N.A.. 17.3 Order of Precedence. Any terms of any supplement, amendment, agreement, Service Terms or notice that are inconsistent with a provision of the Account Terms or the Account Documentation shall supersede such provision of the Account Terms or the Account Documentation for Page 6 of 37 purposes of the particular Account or Service that is the subject thereof. The Account Terms and Account Documentation supersede and replace any other account conditions previously sent to the Customer. 17.4 Interpretation. Section and subsection headings are for convenience only and shall not affect the meaning of the Account Terms, the Service Terms and any Account Documentation. References to Schedules, Sections, Subsections and Clauses are to Schedules, Sections, Subsections and Clauses of the Account Terms, the Service Terms and any Account Documentation. Words in the singular import the plural and vice versa. If any provision of the Account Terms, the Service Terms and any Account Documentation shall be held to be illegal, invalid, or unenforceable the validity of the remaining portions of the Account Terms the Service Terms and any Account Documentation shall not be affected. The term "including" shall in all cases mean "including without limitation" unless otherwise indicated. The term "affiliates" shall mean with respect to any entity, an entity, whether directly or indirectly, that controls, is controlled by, or is under common control with that entity. The term "applicable laws" or similar terms shall mean any law, statute, order, decree, rule, injunction, license, consent, approval, agreement, guideline, circular or regulation of a government authority. 17.5 Compliance; Transaction Screening. The Customer shall comply with all applicable laws and the Bank's policies notified to the Customer. The Bank is required to act in accordance with Bank policies, the laws of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. The Bank is not obligated to execute payment orders or effect any other transaction where a party to the transaction is a person or entity with whom the Bank is prohibited from doing business by any law applicable to the Bank, or in any case where compliance would, in the Bank's opinion, conflict with applicable law or banking practice or its own policies and procedures. Where the Bank does not execute a payment order or effect a transaction for such reasons, the Bank may take any action required by any law applicable to the Bank including freezing or blocking funds. Transaction screening may result in delays in the posting of transactions and/or funds availability. The Bank may direct the Customer (a) to make changes to the activity in the Customer's Accounts, including to cease and desist from using the Accounts for particular types of transactions or for transactions involving particular parties from time to time, and (b) not to use the Accounts to send payments with certain characteristics. The Customer agrees to comply with such directions. 17.6 Amendments; Supplements; Waivers. The Account Terms may be amended or supplemented on notice to the Customer, including by terms contained in any Service Terms or Account Documentation, The Service Terms may be amended or supplemented on notice to the Customer. These amendments or supplements may impose restrictions on the Accounts and Services, as the Bank deems necessary in the course of its business, and will be effective on notice to the Customer or at such other time to be specified in the notice; provided that amendments or supplements that are required by law may be implemented immediately or as required by law. By signing an Account signature card, Account application or similar document or by using or continuing to use any of the Accounts or Services, the Customer agrees to the Account Terms, the Account Documentation, Service Terms and any amendments or supplements, as applicable. All amendments must be in writing The Bank may waive any of provision of these Account Terms, the Account Documentation or the Service Terms, but such waiver shall apply only on that occasion. Such waiver shall not constitute a waiver of any other provision of the Account Terms, the Account Documentation or the Service Terms. Any such waiver shall not affect the Bank's right to enforce any of its rights with respect to other customers or to enforce any of its rights with respect to later transactions with Customer and is not sufficient to modify the terms and conditions of the Account Terms, the Account Documentation or the Service Terms. The rights and remedies in the Account Terms, the Service Terms and any Account Documentation are cumulative and are not exclusive of any other rights or remedies provided by applicable law. 17.7 Waiver of Immunity. To the extent that the Customer has or hereafter may acquire any immunity (including sovereign, crown or similar immunity) from jurisdiction of any court, suit or legal process (whether from service of notice, injunction, attachment, execution or enforcement of any judgment or otherwise), the Customer irrevocably waives and agrees not to claim such immunity as against the Bank or its affiliates. 17.8 Internet Services; Notice of Claims. The Customer agrees at its sole expense: (i) to advise each of its employees, officers, agents or other persons accessing any Service by or on behalf of Customer ("Users") of their obligations under the Account Terms, Account Documentation or under any Service Terms or ancillary Service material, including the obligation to refrain from using the Service via the Internet in the countries identified by the Bank; and (ii) to provide the Bank with all information reasonably necessary to setup and provide Services for the Customer, including advising the Bank of the countries from which Users will access any Service via the Internet. 17.9 Recordings. The Bank or the Customer, at its sole discretion, may make and retain recordings of telephone conversations between the Customer and the Bank. 17,10 Instructions. All Instructions, whether Items, payment orders or otherwise, are subject to applicable laws, and rules, policies, operations and practices of the applicable clearing or settlement systems or payment networks. 17.11 Electronic Copies. The Bank may retain copies (paper, electronic or otherwise) of any documents or Items relating to the Accounts and Services in a form preserving an image of any such documents or Items, including signatures, or a regular business record and discard the original documents or Items. The Customer hereby waives any objection to the use of such records in lieu of their paper equivalents for any purpose and in any forum, venue or jurisdiction, including objections arising from the Bank's role or acquiescence in the destruction of the originals. 17.12 Intellectual Property. All intellectual property rights in or relating to a Service, including any trademarks, service marks, logos, and trade names used in conjunction with a Service are the property of the Bank or its licensors and are protected by applicable copyright, patent, trademark and other intellectual property law. Except as provided herein, the Customer shall not reproduce, transmit, sell, display, distribute, establish any hyperlink to, provide access to, modify, or commercially exploit in whole or in part any part of a Service, without the prior written consent of the Bank. Page 7 of 37 17.13 Know Your Customer. To assist in the prevention of the funding of terrorism and money laundering activities, applicable law may require financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for the Customer. when the Customer opens an Account, the Bank may ask for the Customer's name, address, date of birth (for natural persons), and/or other information and documents that will allow the Bank to identify the Customer. The Bank may also request and obtain certain information from third parties regarding the Customer. For purposes of this provision, the Customer, to the extent required by applicable law, shall include any Authorized Person or signatory on an Account. Information. To fulfill the Bank's "know your customer" responsibilities, the Bank will request information from the Customer from time to time, inter alia, regarding the Customer's organization, business, Third Parties and, to the extent applicable, Authorized Persons and beneficial owner(s) of the Customer, the Customer's customers, and their beneficial owners, including relevant natural or legal persons, and the Customer shall procure and fumish the same to the Bank in a timely manner. The Bank may also request further information and/or documentation in connection with the provision of the Services. Any information and/or documentation furnished by the Customer is the sole responsibility of the Customer and the Bank is entitled to rely on the information and/or documentation without making any verification whatsoever (except for the authentication under the security procedures, as applicable). The Customer represents and warrants that all such information and/or documentation is true, correct and not misleading and shall advise the Bank promptly of any changes and, except as prohibited by applicable law, the Customer agrees to provide complete responses to the Bank's requests within the timeframes specified. The Customer will notify the Bank in writing if any Accounts or monies it holds or places with the Bank are subject to restrictions or otherwise held or received by the Customer in a capacity other than previously disclosed to the Bank, including but not limited to monies being held for the benefit of third parties, whether as fiduciary or otherwise, monies subject to encumbrances, monies received as intermediary, processor or payment service provider, or arising from undisclosed business or similar sources. The Bank may, at its sole discretion and subject to such further conditions as it may impose, including, without limitation, execution of further documentation in form and manner acceptable to the Bank, permit the holding of such Accounts or deposits or receipt of funds. Unless prohibited by applicable law, the Customer agrees to promptly disclose to the Bank activity in the Customer's Accounts that is suspicious or violates applicable laws or sanctions. If the Customer fails to provide or consent to the provision of any information required by this Section, the Bank may close any Account or suspend or discontinue providing any Service without further notice. 17.14 Click-Thru. The Bank may deliver, make available and/or make accessible terms and conditions applicable to Accounts and Services to the Customer via electronic means and channels (including by posting such terms on a Bank website). The Bank may request that an Authorized Person "dick" its approval of such terms. Subject to applicable law, the Customer agrees that the act of "clicking" its approval (or any similar act which has the same effect) with respect to any such terms will be evidence of Customer's acceptance of the applicable terms and conditions, to the same extent, and with the same force and effect, as if Customer had manually executed a written version of such terms and conditions. 18. Interpleader; Reimbursement. If the Bank determines that there is a dispute regarding the ownership of or entitlement to funds held by the Bank for the account of the Customer, the Bank may apply to an appropriate court for resolution of the dispute and may pay the funds into the court pending resolution. The Customer agrees to reimburse the Bank for any related expenses, including its attomeys' fees and costs incurred in connection with the resolution of such disputes or in connection with the Bank's response to, any legal process, including subpoenas, interrogatories and other written questions, garnishments, attachments, levies, writs, restraining notices, court orders, civil investigative demands, requests or demands from regulators or law enforcement, or summonses, complaints or petitions relating to an Account. 19. Provisional Recredit. In connection with any dispute regarding an Account, the Bank may choose to credit the Account pending completion of the Bank's investigation of the dispute. If the Bank determines that the Customer is not entitled to such credit, then, the Bank may reverse the provisional recredit to the Account, even if that reversal results in an overdraft. Page 8 of 37 ADDENDUM TO ACCOUNT TERMS United States of America V1.8 06 29 18 Accounts maintained by the Customer with the Bank are subject to the Bank's Account Terms. This addendum ("Addendum") amends or supplements the Account Terms with respect to Accounts maintained in the United States of America ("U.S.") and to Services provided in connection with such U.S. Accounts, regardless of the location where Services are provided. Capitalized terms used in this Addendum, and not otherwise defined, have the meanings set forth in the Account Terms. By using any Account maintained in the U.S., the Customer acknowledges receipt of, and agrees to be bound by, the Account Terns which includes this Addendum, each as may be amended or supplemented from time to time Section 2 of the Account Terms (Instructions; Security Procedures) is amended by adding the following provision: 2.3 The Customer represents and warrants to the Bank that the Customer has not requested funds transfer security procedures other than those expressly agreed by the Customer and the Bank. Section 3 of the Account Terms (Deposits) is amended by adding the following provisions: 3.4 Verification: Adjustments. Receipts issued by the Bank for deposits are based solely on the amounts stated in the deposit ticket. Credits for Items received for deposit or collection (whether or not accompanied by a deposit ticket) are subject to verification and the Bank's receipt of final payment of deposited Items. The Bank may make adjustments to the Account for any errors appearing on deposit tickets or occurring during processing or otherwise, but the Bank has no obligation to do so for de minimis discrepancies. 3.5 Foreign Currency Items. The Bank may handle Items drawn on a non -U.S. bank or Items payable in a foreign currency on a collection basis, not for deposit, even if the Bank has received the Items in a deposit. The Customer may not receive provisional credit for such Items or, if provisional credit has been given, the Bank may revoke it. Credit for Items payable in a foreign currency will be converted into U.S. dollars at a foreign exchange rate and spread, and at such date and time, as the Bank determines in its discretion. 3.6 Endorsements. Endorsement must be placed on the back of Items only in the area within 1.5 inches from the trailing edge of the Item. The trailing edge of the Item is defined as the left-hand edge of the check looking at it from the front. If the Customer is authorized in writing to endorse Items on the Bank's behalf, the Customer agrees to comply with the endorsement standards of the Bank. 3.7 Encoding. If the Customer encodes information on an Item, the Customer warrants to the Bank and to all other collecting and paying banks of that Item that it is properly encoded and the Customer will be liable for losses related to encoding errors, including any loss due to delay in processing caused by an encoding error. 3.8 Return or Charge Back The Customer should not use carrier documents (Items placed inside envelopes) in either high-speed forward or return cash letters. The Bank may charge the Account for Items returned unpaid to the Bank or for claims based on asserted unauthorized signatures, endorsements or alterations. 3.9 Collections. The Customer agrees that the Bank may collect any Item deposited to Customer's Account by electronic means. The Bank has no duty to inspect such Item during the deposit and collection process. 3.10 Variance. The Bank may agree with other banks and clearing houses to vary procedures regarding the collection or return of Items, and to vary applicable deadlines, to the maximum extent permitted by applicable laws, and rules, policies, operations and practices of the applicable clearing or settlement systems or payment networks (collectively "Rules & Regulations")., 3.11 Substitute Checks. The Customer will not deposit any substitute checks (that are not returned Items) unless the Bank expressly agrees to accept such Items for deposit. In the absence of the Bank's express agreement, the Customer will be solely responsible for any loss or claim in connection with its use of substitute checks. 3.12 Night Depository Deposits The Bank is not liable for any deposit made through the use of the Bank's night depositories until the Bank issues a written acknowledgement of the deposit. The Bank's count of the amount deposited in a night depository will be conclusive. The Customer is solely responsible for any loss that may be incurred before the Bank verifies the contents of the deposit. 3.13 Remotely Created Checks. If the Customer deposits a remotely created check ("RCC"), as such term is defined in Federal Reserve Regulation CC, the Customer warrants to the Bank, with respect to each RCC, that the person on whose account the RCC is drawn, authorized the issuance of such RCC in the amount and to the payee stated on the RCC. The Customer authorizes the Bank to debit the Customer's account for any claim or return based upon an unauthorized RCC and the Customer agrees to indemnify and hold the Bank harmless from and against any claims, liabilities, costs and expenses (including attorneys' fees) resulting directly or indirectly from any breach of the foregoing warranty. Page 9 of 37 3.14 Electronically -Created Items. The Customer should not deposit electronically -created items (ECIs) to its account, as such term is defined in Federal Reserve Regulation CC. ECIs are included in the definition of an Item. If the Customer does deposit an ECI, the Customer authorizes the Bank to debit the Customer's account for any claim, return or adjustment related to the ECI, and the Customer agrees to indemnify and hold the Bank harmless from and against any claims, liabilities, costs and expenses (including attorneys' fees) resulting directly or indirectly from the Customer's deposit of the ECI. 3.15 ATM Cards. The Bank may issue one or more automated teller machine ("ATM") cards ("Cards") and personal identification numbers ("PINs") to Customer's employees or agents for use in initiating certain Account transactions at Bank owned ATMs. Unless otherwise agreed by Bank, Customer agrees that Cards will be used only at ATMs owned by the Bank and Customer shall be liable for any transactions and fees resulting from the use of such Cards. The Customer agrees that the types of transactions offered through the use of any Card may be limited by the Bank, in its sole discretion. The Bank may cancel any Card at any time and for any reason, and will notify Customer of such cancellation. The Customer agrees to obtain possession of and return to the Bank or destroy all cancelled Cards. If the Customer believes a Card or PIN has been lost or stolen, the Customer shall immediately contact the Bank's ATM call center. All ATM transactions are subject to verification. Any deposit transaction through an ATM that is not made on a business day or made after the Bank's designated cut-off time will be processed on the Bank's next business day. 3.16 Internet Gambling. The Customer agrees not to conduct any transactions through the Account that are directly or indirectly related to unlawful Internet gambling, including the acceptance or receipt of any funds or deposits in connection therewith. The term "unlawful Internet gambling," as used in this section, shall have its meaning set forth in 12 C.F.R. Section 233.2(bb). Section 4 of the Account Terms (Payment of Items) is hereby amended by adding the following provisions: 4.5 Cashino Items. The Bank may, in its discretion, cash Items drawn on an Account when presented by the holder. If a holder who is not a deposit customer of the Bank presents an Item drawn on the Account for cash, the Bank may refuse to cash the Item, or may charge the holder a fee for cashing the Item. 4.6 Signatures. If the Customer establishes an Account which purports to: (i) require two or more signatures on Items drawn on the Account, or (ii) limits the amount for which an Item can be issued, the Customer acknowledges that any such requirements are solely for the Customer's own internal control purposes. The Customer agrees that, provided that the Bank follows its usual and customary procedures for processing and paying Items, the Bank will not be liable for paying any Item (a) lacking the required number of signatures, or (b) in an amount exceeding the applicable limit. 4.7 Fraudulent Items. The Bank provides Services to which the Customer may subscribe, such as Positive Pay and Reverse Positive Pay, which are reasonably designed to prevent payment of unauthorized or altered Items. Customer agrees that failure to use such Services will constitute Customer negligence contributing to the making of an unauthorized signature or the alteration of an Item, and the Customer will assume the risk that Items paid against its Account may be unauthorized or altered. In that event, the Customer will be precluded from asserting any claims against the Bank for paying any unauthorized, altered, counterfeit or other fraudulent Items The Bank shall not be required to re -credit Customer's Account or otherwise have any liability for paying such Items to the extent such Services would likely have prevented such loss. 4.8 Obscured Endorsements. The Customer assumes responsibility for losses that the Customer or the Bank may incur as the result of processing delays caused by the Customer's: (i) issuance of an Item in such a manner that information, marks or bands on the back of the Item obscure endorsements; or (ii) placement of an endorsement on the back of the Item which obscures other endorsements. 4.9 Negotiation Outside of U.S. If an Item is transferred or negotiated outside of the U.S. and is subsequently sent to the Bank for deposit, collection or payment in the U.S., the Customer shall be deemed to make, to the Bank, the transfer and presentment warranties under the Rules & Regulations, as if such Item were negotiated or otherwise transferred in the U.S. 4.10 Ston Payments. A stop payment Instruction from the Customer will be effective with respect to an Item if: (i) the Bank has a reasonable opportunity to act on such Instruction prior to its payment or encashment, which shall be at least one (1) full Business Day following the Business Day on which the Bank received the Instruction; and (ii) the Instruction is in the form required by the Bank, the information is complete and is delivered to the location designated by the Bank. For purposes of this Section, "Business Day" means a day on which the Bank is generally open for business in the jurisdiction where the Account is maintained. Stop payment Instructions, unless otherwise provided, will be valid for one (1) year and will automatically renew up to six (6) additional years unless the Bank receives Customer's revocation of a stop payment Instruction. The Customer may request, through the Bank's call center or other authorized representative, a non-renewable stop payment, which will be effective for a 180 -day period. The Bank shall not be liable for any Item properly paid or cashed prior to the effective time of a stop payment request. The Customer acknowledges that a stop payment instruction does not limit or vary its obligation to pay the subject Item and, notwithstanding a stop payment instruction, the Bank may properly pay such an item to a person entitled to enforce it. Page 10 of 37 4.11 Standard of Care. Any Item issued by the Customer drawn on its Account shall be deemed to be endorsed in the name of the payee if: the Item is endorsed or deposited into an account in a name that is substantially similar to that of the payee; the payee is a fictitious person; the Customer was wrongfully or erroneously induced to issue the Item payable to the stated payee; the deposit of the item was accomplished by an employee entrusted with responsibility for the Item or person working in concert with such an employee; or the Customer or payee failed to act with ordinary care with respect to the Item. The Bank shall not be liable for any loss caused by the alteration or unauthorized signature or endorsement on any Item issued by the Customer, unless the Customer establishes that the Bank failed to handle the Item with ordinary care, and that such failure substantially contributed to the loss. If the Bank's failure to act with ordinary care substantially contributed to the loss on the item, the loss shall be allocated between the Customer and the Bank based upon the extent to which their respective failures to exercise ordinary care contributed to the loss. The Bank may process any Item by electronic means and is not required to inspect the Item payed by automated payment processing. Section 5 of the Account Terms (Funds Transfer Instructions) is amended by adding the following provisions: 5.6 Funds Transfer by Check. If the Customer, through the Bank's funds transfer services, requests that payment be made by check, the Customer authorizes the Bank to debit the Customer's Account on receipt of the Instruction and to issue a check as agent for the Customer in accordance with the Instruction. If the Customer requests the Bank to place a stop payment on the check before the check has been presented for payment, such request must be clearly identified as a stop payment request, including the reference number given for the transaction, and it must be received by the Bank at a time and in a manner designated by the Bank from time to time. If the check is not presented for payment within one hundred eighty (180) days after issuance, the Bank may place a stop payment on the check and transfer the funds back to the Account. 5.7 Credit Entries Received Through Automated Clearing House (ACH) System Credit given by the Bank to the Customer for an ACH credit entry shall be provisional, until the Bank receives final payment. If the Bank does not receive final payment, the Bank may revoke the provisional credit and charge back the amount of the entry to the Account, or obtain a refund from the Customer, in which case the originator of the credit entry shall not be deemed to have paid the Customer the amount of such entry. The Bank shall not be obligated to notify the Customer of the receipt of a payment order or ACH entry for credit or debit to an Account. 5.8 Same Day Amend and Cancel. The Customer may subscribe to a service to enable same day amendment and cancellation of payment orders. All cancellation or amendment messages sent to the Bank shall be in the format specified by the Bank and must be received by the Bank no later than such time as may be established by the Bank upon notice to the Customer. 5.9 Prioritymmed. The Bank will determine the order in which it processes payment orders. If the Customer's payment order bears the codeword "PRIORITY" in such field as the Bank specifies, the Bank will use reasonable efforts to execute such payment order in advance of the Customer's standard payment orders. If the Customer's payment order bears the codeword "TIMED" in such field as the Bank specifies, the Bank will endeavor, but will have no obligation, to process the payment order by the time requested by the Customer within the payment order. For "TIMED" payment orders, funds in the Customer's Account are reserved by the Bank on the payment value date until processed. For the avoidance of doubt, all payment orders are subject to the Bank's acceptance, and the Bank will have no liability for failure to process payments by the time requested by the Customer. 5.10 Real Time Payments. Payments received through the Real Time Payment System operated by The Clearing House Payments Company LLC ("RTP System") will be processed pursuant to the RTP Operating Rules and any other applicable Rules & Regulations, to which the Customer agrees to be bound. If the Customer receives a payment through the RTP System on behalf of another person or entity, such other person or entity must be a resident of, or otherwise domiciled in the United States. In the further transmission of any such payments, the Customer agrees to comply with all applicable US laws and regulations, including, without limitation, those administered by the US Office of Foreign Assets Control. 5.11 Messaging Standards. To the extent there is any inconsistency between a fund transfer financial messaging standard and the governing law set forth in Section 16. 1, the governing law set forth in Section 16.1 will govern. Section 7 of the Account Terms (Account Statements) is amended by adding the following provisions: 7.2 Images Sufficient. The Customer acknowledges that Account Statements and images of paid Items are available to it and are sufficient to allow it to make all examinations and reports of Account activity including errors, as required in this Section. The Bank is not required to return paid or cancelled Items with the Account Statement. 7.3 Obligation to Inspect. The Customer must notify the Bank in writing, within a reasonable period of time not to exceed 60 calendar days of the date of an Account Statement, of (i) the failure to receive the Account Statement, or (ii) any errors, unauthorized payments, charges, alterations, discrepancies or irregularities reported on the Account Statement ("Errors"). The Customer must notify the Bank in writing of any unauthorized, improper, or missing endorsements within six (6) months after the date of the Account Statement on which the Item was reported to have been paid. The Customer must provide the Bank with all information necessary for the Bank to investigate any claim based upon an endorsement or Error, and must provide all supporting evidence that the Bank requests. Failure to comply with the time frames set forth above shall be deemed conclusive proof that the Customer failed to exercise reasonable care and promptness in examining Account Statements and paid Items or identifying Errors and that such failure may cause subsequent loss to the Bank. If the Customer fails to comply with the notice requirements set forth above, the Bank is not required to reimburse the Customer for the Customer's claimed loss and the Customer shall be barred from bringing any action against the Bank. Page 11 of 37 7.4 Inactive Accounts. If an Account has no activity other than charges assessed or interest credited by the Bank for a period of six (6) or more months, the Bank is not required to provide an Account statement until additional activity occurs in the Account. If an Account has no activity other than charges assessed or interest credited by the Bank for a period of twelve (12) or more months, the Customer may be unable to access the Account until the Customer contacts the Bank. 7.5 Advice Services. The Customer may subscribe to Bank services for the delivery of account -related information ("Advices") to a party designated by the Customer, including information relating to credits and debits to a Customer account, and the return or rejection of certain payments. Advices may be sent via SWIFT, electronic mail, facsimile transmission, ordinary mail, telephone, through Internet sites, or as otherwise agreed by the parties. The Customer is responsible for maintaining the accuracy of the information that is required for delivery of Advices, including the address, telephone and/or facsimile number of the recipient and, if applicable, the messaging components and conditions that will trigger the transmission of the Advices. i Section 15 of the Account Terms (Account Disclosures) is amended by adding the following provisions: 15.5 Withdrawal Limitations on Certain Account Types. U.S. federal regulations limit the number of pre -authorized or automatic transfers or withdrawals or telephonictelectronic instructions (including check, draft, debit card or similar order payable to third parties) that can be made from a savings account (including a savings sub -account (as described below) and a money market deposit account) to a total of six (6) per calendar month or statement cycle or similar period. The Customer agrees to comply at all times with such restrictions. Exceeding these withdrawal limits may result in the Bank converting the savings account into a non-interest bearing demand deposit account, with any attendant changes in pricing and account terms and conditions. Further, the Bank is required by U.S. law to reserve the right to require at least seven (7) days' notice prior to a withdrawal from a savings account (including a savings sub -account) or an interest-bearing negotiable order of withdrawal account ("NOW Account"). 15.6 NOW Accounts. The Customer, If eligible, may open a NOW Account. There is no limit on the number of withdrawals that the Customer 1 may make from the demand deposit or NOW sub -account. 15.7 Administrative Subaccounts, The Bank is authorized, for regulatory reporting and internal accounting purposes, to divide an Account: (i) in the case of a demand deposit checking Account, into a non-interest bearing demand deposit sub -account and a non-interest bearing savings sub -account: (ii) in the case of a NOW Account, into an interest bearing NOW sub -account and an interest bearing savings sub -account, and, in both cases, to transfer funds on a daily basis between these sub -accounts in accordance with U.S. law at no cost to the Customer. The Bank will record the sub -accounts and any transfers between them on the Bank's books and records only. The sub -accounts and any transfers between them will not affect the Account number, balance requirement or use of the Account, except as described herein. 15.8 Savings Subaccounts. The Bank will establish a target balance for the Customer's demand deposit or NOW sub -account, which it may change at any time. To the extent funds in the demand deposit or NOW sub -account exceed the target balance, the excess will be transferred to the Customer's savings sub -account, unless the maximum number of transfers from the savings sub -account for that calendar month or statement cycle have already occurred. If withdrawals from the demand deposit or NOW sub -account exceed the available balance in the demand deposit or NOW sub -account, funds from the Customer's savings sub -account will be transferred to the demand deposit or NOW sub -account up to the entire balance of available funds in the savings sub -account to cover the shortfall and to replenish any target balance that the Bank has established for the demand deposit or NOW sub -account. If a sixth transfer is needed during a calendar month or statement cycle, it will be for the entire balance in the Customer's savings sub -account, and such funds will remain in the demand deposit or NOW sub -account for the remainder of the calendar month or statement cycle. 15.9 Branch Designation. The Bank, for its administrative purposes may designate a branch of the Bank as the branch of record of an Account which may be different from the branch at which the Account is opened. This designation requires no action on the part of the Customer and will not change the Bank's operations, Services or customer support. 15.10 No Fiduciary Relationship. Bank's relationship with Customer concerning the Accounts is that of a debtor and creditor. No fiduciary, quasi - fiduciary or other special relationship exists between Bank and Customer or any third parties regarding the Accounts. Section 16 of the Account Terns (Governing Law) is amended by replacing Section 16.1 with the following provision: 16.1 Except as otherwise agreed in writing by the Bank and the Customer, the rights and obligations of the Customer and the Bank in respect of each Account maintained in the U.S. shall be governed by and construed in accordance with the laws of the State of New York (without regard to its conflict of laws rules). Each of the Customer and the Bank irrevocably and unconditionally submits to the exclusive jurisdiction and venue of any State or Federal court sitting in the City of New York, New York over any action, suit, proceeding, claim or controversy arising out of or relating to the Account Terms which includes this Addendum. The rights and remedies of the Bank under this Addendum, the Account Terns, the Account Documentation, the Service Terms, and any other agreement by the Customer in favor of the Bank are in addition to the rights and remedies of the Bank under applicable law (as provided above in this Section), are cumulative and may be exercised successively or concurrently, and are retained by the Bank. Section 16 of the Account Terns (Governing Law) is amended by adding the following provision: Page 12 of 37 16.4 In the event the Bank is required to remit funds to any state as abandoned property, the Account may be charged for fees in remitting funds to that state. In addition, the Bank may charge fees in connection with its handling of dormant funds and accounts. Section 17 of the Account Terns (Miscellaneous) is amended by adding the following provisions: 17.15 When the Customer provides the Bank any information requested by the Bank under its "Know Your Customer" or Anti -Money Laundering or other compliance polices pertaining to any natural or other persons, the Customer represents and warrants to the Bank that the Customer has obtained that person's consent that the Bank may make continued use of that person's information in order for the Bank to discharge any of its responsibilities in connection with "Know Your Customer" or Anti -Money Laundering, or other compliance purposes. 17.16 Beneficial Ownership. Customer agrees to adhere to the FinCEN Customer Due Diligence final rule which requires certain entities to provide and certify beneficial ownership information to the Bank at 10% and provide information on a controller when opening a new USD account. The Bank is required to collect and validate certain information (e.g. Name, Address, DOB, SSN or Passport # for non US individuals) for new accounts impacted by the rule. If an entity is exempt from rule, the Bank may require documentation to support the exemption. 17.17 Payable Through Accounts. If the Customer is a bank or financial institution and is not organized under the laws of the U.S., it shall not permit its customers to conduct banking transactions in the U.S. through the Customer's Account, and shall not provide its customers with check stock, drafts, wire transfer capabilities or any other means which would enable its customers to draw on the Customer's Account. These types of arrangements are typically called "payable through accounts" and are prohibited under these Account Terms. The Customer acknowledges that the sale of U.S. dollar checks or drafts to third parties is prohibited without the express written approval of the Bank. 17.18 No Advice. The Customer acknowledges and agrees that the Bank has not provided and will not provide any investment, tax or accounting advice or recommendation in relation to the Accounts or any investments made under any Service. 17.19 ERISA Status. The Customer will notify the Bank in writing, reasonably in advance of the Account opening, if any Accounts or monies it holds or places with the Bank are subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), together with all the rules promulgated thereunder, or Section 4975 of the Internal Revenue Code, together with all the rules promulgated thereunder. The Bank may, in its sole discretion and subject to such further conditions as it may impose, including, without limitation, execution of further documentation in forth and manner acceptable to the Bank, permit the holding of such Accounts or deposits or receipt of funds. 17.20 Additional Representation for ERISA Benefit Plans. (i) If the Customer is or represents a "benefit plan," as defined in Section 3(42) of ERISA, and U.S. Department of Labor Regulations Section 2510.3-101, as modified by Section 3(42) of ERISA (together, the "Plan Asset Rules" and each such benefit plan investor, a "Benefit Plan"), or is acting on behalf of one or more Benefit Plans, the Customer represents and warrants that: (1) the Bank has not or will not provide advice with respect to the services obtained by the Benefit Plan (2) the Benefit Plan fiduciary (the "Plan Fiduciary") is independent of the Bank, and is not an individual acting for his or her own Individual Retirement Account, and such Plan Fiduciary is either (a) a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the "Advisers Act"), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency; (b) an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of a Benefit Plan; (c) an investment adviser registered under the Advisers Act or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (a)(1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business; (d) a broker-dealer registered under the Securities Exchange Act of 1934, as amended; or (e) has, and will at all times have, total assets of at least U.S. $50,000,000 under its management or control; (3) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to the Accounts and Services; (4) the Plan Fiduciary is a "fiduciary" with respect to the Benefit Plan within the meaning of Section 3(21) of ERISA, Section 4975 of the Code, or both, and is responsible for exercising independent judgment in evaluating the receipt of Services by the Benefit Plan; (5) the Bank has not exercised any authority to cause the Benefit Plan to agree to these Account Terms; and (6) the Plan Fiduciary has been informed (a) that the Bank is not undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Services; and (b) of the existence and nature of the financial interests of the Bank, as disclosed in the Account Terms and Service Terms. (ii) The representations and covenants in the above clauses are intended to comply with the U.S. Department of Labor's Reg. Sections 29 C.F.R. 2510.3-21(a) and (c)(1) as promulgated on April 8, 2016 (81 Fed. Reg. 20,997). If these regulations are revoked or repealed, these representations shall be deemed no longer in effect. Page 13 of 37 AVAILABILITY POLICY - FOR ACCOUNTS MAINTAINED IN THE U.S. The Bank's policy is to make funds available to the Customer on the same, next or second business day after the day of deposit depending on the type of deposit and when the deposit is made as described below. If the Customer will need the funds from a deposit immediately, the Customer should ask the Bank when the funds will be available. A. Determining the Day of a Deposit. If a deposit is made to an account on a business day before the Bank's cutoff time established for that location (which will be no earlier than 2 p.m. local time), then the Bank will consider that day to be the day of deposit. However, if a deposit is made after the cutoff time or on a day that is not a business day, then the Bank will consider the deposit to have been made no later than the next business day. For determining the availability of deposits, every day is a business day, except Saturdays, Sundays, and federal holidays. Availability with respect to any deposit will be determined by the location of the banking center or other facility where the deposit was received. For deposits made at the Bank's automated teller machines (ATMs) the cutoff time is 11 p.m. Eastern Time unless otherwise noted on the ATM screen. B. Same Day Availability. Funds from the following deposits made at a banking center or at an ATM that do not require deposit envelopes will be available on the business day the Bank determines the deposit is made: • Cash; • Wire transfers; and • Electronic direct deposits to an account. C. Next Day Availability. Funds from the following deposits are available on the first business day after the business day the Bank determines the deposit is made: • U.S. Treasury checks that are payable to the Customer; • Checks drawn on a Bank affiliate that holds the applicable account (excluding a Controlled Disbursement site); and • At least, the first $200 from a day's total deposits. If the deposit is made in person to a Bank employee, funds from the following deposits are also available on the first business day after the business day the Bank determines the deposit is made: • State and local government checks that are payable to the Customer, if a special deposit slip, available upon request at any Bank banking center is used; • Cashier's, certified, and teller's checks that are payable to the Customer, if a special deposit slip, available upon request at any Bank banking center, is used; and • Federal Reserve Bank checks, Federal Home Loan Bank checks, and postal money orders, if these items are payable to the Customer. If a special deposit slip is not used, availability of funds from these deposits will follow the schedule identified in the Availability of Other Check Deposits section below. D. Availability of Other Check Deposits. Generally, funds from all other deposits of checks drawn on banks (as defined in Federal Reserve Regulation CC) will be available no later than the second business day after the day of deposit. Checks that require special handling may receive delayed availability. The amount of funds available to the Customer will be reduced by the amount of any deposited check that is returned unpaid. If the Bank reprocesses the check, the funds will become available no later than the second business day after the business day in which the check is reprocessed. E. Longer Delays May Apply. In some cases the Bank may not make all of the funds that are deposited by check available. Depending on the type of check deposited, funds may not be available as set forth above. However, the first $200 of the aggregate deposit will be available on the first business day after the day of deposit. If the Bank is not going to make all of the funds from a deposit available at the times shown above, it will notify the Customer and specify when the funds will be available. If a deposit is not made directly to a Bank employee, or if the Bank decides to take this action after the Customer has left the premises, the Bank will mail or otherwise send the notice to the Customer by the business day after the day of deposit. Funds deposited by check may be delayed for a longer period under the following circumstances: • The Bank believes a deposited check will not be paid; • Deposited checks for all of the Customer's accounts total more than $5,000 in any one day; • The Customer redeposited a check that has been returned unpaid; • The Customer has overdrawn one or more of its accounts repeatedly in the last six months; or • There is an emergency, such as failure of communications or computer equipment. Page 14 of 37 In such circumstances, funds will generally be available no later than the seventh business day after the day of deposit. Inclement weather or transportation problems may lead to additional delays under certain availability schedules. Customer may have specific availability schedules related to a banking service. F. Special Rules for New Accounts. If the account is a new account, the following special rules may apply during the first thirty days the account is open: • Funds from deposits of the first $5,000 of that day's total deposits of cashier's, certified, teller's, traveler's and federal, state and local government checks payable to the Customer will be available on the first business day after the day of deposit. The excess over $5,000 will be available no later than the ninth business day after the day of deposit. If the deposit of checks (other than U.S. Treasury checks) is not made in person to one of the Bank's employees, the first $5.000 may not be made available until the second business day after the day of deposit; and • Funds from all other check deposits will be made available no later than the fifteenth business day after the day of deposit. G. large Dollar Deposits. The U.S. Federal Reserve Banks will not forward process any Item over $99,999,999.99 and considers such Items as "non-cash items." Such Items should not be deposited in the Account. If Customer does deposit such an Item, the Bank may refuse to process such Item or handle it as a collection Item. If handled as a collection Item, Customer credit and availability will be deferred accordingly. This Availability Policy and availability schedules may be changed without notice. © 2018 JPMorgan Chase & Co. All rights reserved. JPMorgan Chase Bank, N.A. Member FDIC. Page 15 of 37 Consolidated Service Terms J.P. Morgan Chase provides an array of treasury services to meet your business needs. This booklet contains important information about J.P. Morgan Chase solutions that we provide If you would like to add a service that is covered in this booklet, please contact your Commercial Banking Representative TREASURY SERVICES (United States) Commercial Bank V4.9 1 31 19 Page 16 of 37 Welcome to JPMorgan Chase Bank, National Association ("J.P. Morgan", "Chase", or "Bank"). We are pleased that you have decided to maintain a banking relationship with us. This Consolidated Service Terms booklet ("Booklet") contains the terms and conditions for certain cash management services ("Service Terms") J.P. Morgan may provide to you. By executing the Account Terms Acceptance Letter, Certificate Regarding Accounts, Business Signature Card, service implementation form or similar document, or by using or continuing to use any of the services referenced herein after receipt of this Booklet, you agree that the Service Terms included in this Booklet, in addition to the Account Terms and such supplements, amendments, notices and additional service terms provided to you from time to time will govern your existing and future deposit accounts maintained with us, in addition to those services that the Bank provides to you, as applicable. This Booklet includes Treasury Services Service Terms applicable to all Commercial Banking customers. All Service Terms are subject to the Bank's Account Terms. Any modifications to this Booklet, including but not limited to any changes, amendments, deletions, and/or additions, will not be binding upon the Bank unless such modifications are acknowledged and agreed to it writing by an officer of JPMorgan Chase. We look forward to serving your business needs and thank you again for choosing Chase SERVICES FOR CUSTOMERS A. ACH Origination B. ACH Transaction Blocking & ACH Transaction Review C. Lockbox D. Coin & Currency E. Positive Pay, Reverse Positive Pay and Payee Verification F. Controlled Disbursements G. Image Cash Letter H. Check Print 1. ACH Tax Payment J. Virtual Remit Service Terms K. Electronic Channels Page 17 of 37 Service Terms — Consolidated Service Terms Booklet The services described herein (each a "Service") are subject to the Bank's Account Terms (as may be amended from time to time). which are hereby incorporated by reference into each Service Terms By using any of the Services described hereunder, the Customer acknowledges that it has received and agreed to the Account Terms, as supplemented by these Service Terms. Capitalized terms in the Service Terms, unless otherwise defined herein, shall have the meanings set forth in the Account Terms A. ACH ORIGINATION The Automated Clearing House (ACH) is a batch processing payment system that U.S. banks use to exchange and settle credit and debit transactions on behalf of their clients or themselves. The origination of ACH Entries and the transmission and issuance of related transactions and information will be pursuant to these terms and the Operating Rules and Guidelines (collectively the "Rules") of the National Automated Clearing House Association. Capitalized terms used in this subpart, unless otherwise defined in this subpart shall have the same meanings as set forth in the Rules. The Customer and the Bank agree to comply with and be bound by the Rules as in effect from time to time, including without limitation, the provision making payment of a Credit Entry by an RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Credit Entry and the Customer acknowledges that it has received notice of such rule and of the fact that if such settlement is not received, the RDFI will be entitled to a refund from the Receiver of the amount credited and the Customer will not be deemed to have paid the Receiver the amount of such Credit Entry. 1. Service. Bank provides automated clearing house ("ACH") origination services that will enable Customer to do one or more of the following: originate ACH Debit Entries; originate ACH Credit Entries; and • instruct the Bank to issue or transmit prenotification s, reversals, requests for return, notifications of change or other information pertaining to the Entries. Origination of ACH Credit Entries and origination of ACH Debit Entries are two separate services and approval or set up for one ACH service does not automatically create the ability to utilize the other. The Rules and these Service Terms shall apply to all Entries, whether or not transmitted through an ACH Operator. It is Customer's responsibility to provide Entries and instructions to Bank with all the necessary information to complete Customer's requested transactions. Customer agrees to transmit Entries to Bank in the manner, at the times and in accordance with approved media, content and format as agreed by Bank and Customer. Bank may reject or delay processing transactions or information if instructions are not complete or are inaccurate, contain an inactive Company ID or otherwise do not meet the criteria Bank specifies for acceptance. All requests to Bank must be received by Bank before Bank's established cut-off time in order for processing to commence on that ACH processing day. Any request that is incomplete or that Bank finishes receiving after the relevant cut-off time will be processed by Bank on the next day Bank processes ACH transactions. All transactions are subject to acceptance by Bank. Bank will notify Customer of any transactions or other transmissions that are rejected or returned. If Customer wants Bank to re -process those transactions or transmissions, Customer must correct them and re -submit them. Customer agrees to furnish Bank with copies of any authorizations or notifications, if requested, as well as any other information reasonably requested by Bank relating to Entries originated by the Customer. Customer shall provide Bank's auditors and other personnel with reasonable access at all reasonable times to the Customer's facilities, data and records relating to the initiation of Entries for the purpose of auditing Customer's compliance with these Service Terms and the Rules. 2. Security and Data Protection Procedures. All instructions received by Bank in Customer's name are subject to verification pursuant to mutually agreed security procedures. If Bank follows those procedures, Bank may process and transmit transactions or information in Customer's name. Unless Customer and Bank both otherwise agree, transmissions to Bank will be authenticated and/or encrypted using commercially reasonable security technologies meeting standards acceptable to Bank. If Customer uses a security procedure other than as described above, Customer acknowledges that Customer refused Bank's security procedure and chose another and Customer agrees to be bound by any transaction, whether or not authorized, issued in Customer's name and accepted by Bank in compliance with the security procedure Customer chose. If Customer elects not to utilize recommended message authentication and/or encryption technology, Customer assumes all responsibility for unauthorized disclosure or unauthorized access to Customer's data that occurs during transmission or while such data is in storage. Customer shall not disclose any Receiver's account number or routing number to any third party for such third party's use, directly or indirectly, in initiating a separate Debit. 3. Settlement and Exposure Limits. On the settlement date, Bank will credit Customer's account with Bank that Customer specifies for the total of: Customers Debit Entries that Bank processed for settlement that day; RCCs issued for deposit to Customer's account on that day; and • any returned or reversed Credit Entries. Page 18 of 37 Bank may delay the availability of funds deposited into Customer's account by Debit Entry or RCC until those transactions cannot be reversed in accordance with the Rules or applicable law. Bank will debit Customer's account with Bank that Customer specifies for the total of Credit Entries processed in Customer's name and for any returned Debit Entries and RCCs. Bank may require Customer to pay Bank the amount of any Credit Entries on the date of transmission to Bank or otherwise prior to the settlement date. Bank also may require Customer to maintain collateral with Bank in an amount Bank specifies. Bank may from time to time establish or revise maximum dollar limits for the total value of all outstanding files of Credit Entries and/or Debit Entries and RCCs that Bank will release on Customer's behalf. Bank may change or cancel the limits at any time without prior notice to Customer; although Bank will try to notify Customer before Bank does that. Warranties; Indemnity. Except as specified below, Customer will be deemed to make the same warranties to Bank as Bank makes pursuant to the Rules. In the case of an Entry to another account with Bank, warranties will be deemed to be given as of the time Bank first processes the Entry. Customer will not be deemed to warrant the power of the Bank under applicable law to comply with the requirements of the Rules or the conformity of Entries and other data Bank transmits to the file specifications contained in the Rules. The Customer further represents, warrants and covenants that (a) each Entry and RCC d originates will comply with all applicable U.S. laws and regulations and acknowledges that Entries may not be initiated that violate the laws of the United States, (b) unless Customer has identified itself to Bank as a Third Party Sender (as defined in Section 7) and obtained Bank's express consent to originate Entries as a Third Party Sender, Customer will not originate any Entries, or use any of its Company IDs to originate Entries, on behalf of third parties (including, without limitation, any affiliate of Customer), and (c) Customer will not permit a third party to originate Entries using a Customer account as the offset account unless Customer obtains Bank's express consent to do so. Customer agrees to indemnify Bank and Bank's employees, officers, directors and agents, and hold all of them harmless from and against any and all claims, demands, losses, liabilities or expenses (including attorneys' fees and costs) resulting directly or indirectly from (a) Customer's breach of any warranty made under these Service Terms and (b) compliance by Bank and the RDFT with any request Customer makes for a cancellation, stop payment, reversal or recall of any Entry or any RCC created by Bank under Section 1 hereof. Bank shall have no responsibility for any delay by any ACH Operator or RDFI in processing any Entry the Bank transmits to the ACH Operator or failure to process or credit or debit any such Entry. 5. Stop Payments; Reversals and Recalls; Rejections. Customer's instruction to cancel, stop payment of, reverse or recall one or more Entries must be received by Bank in such time and manner as Bank specifies. Bank will process these transactions in accordance with Bank's procedures advised to Customer. Any reversal or recall initiated by Bank is subject to acceptance by the RDFT. Instructions to reverse or recall an ACH Credit Entry that are not initiated by Customer in time to meet the prescribed NACHA deadline for reversals may be originated by Bank as a Debit Entry; Customer shall obtain authorization from the Receiver in accordance with the Rules for any such Debit Entry and all other terms of these Service Terms applicable to Debit Entries shall apply. Entries or other instructions may not be amended or modified. If Customer originates Debit Entries to an account or accounts at a financial institution that is not a Participating Depository Financial Institution in the ACH system (such account hereafter called a "Non-ACH Eligible Account"), all such Debit Entries will be rejected unless Customer subscribes to a service, subject to Bank's prior consent, pursuant to which Bank will process each such Debit Entry to a Non-ACH Eligible Account by preparing a remotely created check, as such term is defined in Federal Reserve Regulation CC (an "RCC"), on the Customer's behalf. The RCC will be drawn in the amount and on the Non -Eligible ACH Account of the individual or entity specified as the receiver in the Customer's instructions and will be deposited to the Customer's designated account with Bank, Such RCC will thereafter be processed through the check clearing system. If the Customer is using such service, the Customer hereby authorizes the Bank to create each RCC as described herein and the Customer warrants to the Bank, with respect to each RCC, that the person on whose account the RCC is drawn authorized the issuance of such RCC in the amount and to the payee stated in the RCC. The Customer authorizes the Bank to debit the Customer's account for any claim or return based upon an unauthorized RCC. All other terms herein related to Entries shall also apply to RCCs created under this Section. The Bank shall not create or process RCCs or other paper drafts in lieu of ACH Debits under any circumstances other than for Non-ACH Eligible Accounts and only when the Bank has consented to provide such service, even if the Customer includes an instruction in its file for the Bank to otherwise originate an RCC or paper draft. 6. Third Party Service Providers. Customer may choose to use a third parry service provider or service bureau to issue Entries or other instructions, handle returned Entries or perform other functions for and on Customer's behalf. If Bank accepts such Entries or other instructions, Customer will be bound by them. Customer is responsible for all actions taken or not taken by Customer's provider and Customer is responsible for all costs and expenses of Customer's provider. Third Party Sender. If Customer is a Third Party Sender, as such term is hereafter defined, (a) Customer warrants that the Originator has agreed to be bound by the Rules and has satisfied the obligations of an Originator under the Rules; (b) in any case where the Originator fails to perform its obligations under the Rules as an Originator, Customer shall indemnify, defend and hold Bank harmless from and against any and all claims, demands, losses, liabilities and expenses, including attorneys' fees and costs, that result directly or indirectly from the failure of the Originator to perform its obligations as an Originator under the Rules; (c) Customer agrees to cooperate with Bank regarding any request for information concerning the identity of any Originator; and (d) Customer represents, warrants and covenants that neither these Service Terms nor anything related to the ACH Origination Services violates, contravenes or is inconsistent with any of the terms, conditions or provisions of any agreement, understanding or arrangement between Customer and the Originator. Further, Bank will rely on Customer to evaluate the legitimacy of the Originators and their transactions originated by Customer and for ensuring that instructions do not involve illegal activities. Customer must notify Bank immediately if Customer suspects or become aware of any activity or transaction of an Originator that Customer believes may be of an illegal or illegitimate nature or that involves the proceeds of illegal activity or that was conducted, in part or whole, for the purpose of disguising the source of funds. Bank will be entitled at any time upon notice to Customer to decline to provide the ACH Origination Services, or terminate the provision Page 19 of 37 of ACH Origination Services, for any Originator on whose behalf are originating Entries if Bank determines that there are excessive returns or reversals of Entries originated on behalf of such Originator or if Bank becomes aware of any information indicating suspicious, fraudulent or illegal activity related to such Originator or for any other reason. As used herein, "Third Party Sender" means an entity that is not an Originator, that has authorized an ODFI or another Third Party Sender to transmit, for the account of the Third Party Sender or another Third Party Sender, (i) a credit entry to the account of a Receiver in order to effect a payment from the Originator (i.e., the third party on whose behalf the Third Party Sender is transmitting the entry) to the Receiver, or (ii) a debit entry to the account of a Receiver in order to effect a payment from the Receiver to the Originator (i.e., the third party on whose behalf the Third Party Sender is transmitting the entry). Without limitation of the foregoing, Third Party Senders include U.S. regulated financial institutions, brokers and other financial intermediaries as well as any other regulated or unregulated payment processors that are customers of the Bank and use their accounts to process payments for third parties (including affiliates of the Customer). IAT Entries. If Customer is originating Entries that are required to be formatted under the Rules as IAT Entries, Customer will comply with all applicable Rules relating thereto, and Customer will originate such Entries only through one of Bank's ACH origination channels that support IAT origination. Some of Bank's ACH origination channels do not accommodate IAT Entries; upon request, the Bank will advise Customer as to which of Bank's ACH origination channels can be used for IAT origination. If a foreign currency conversion is performed by Bank in connection with an IAT Entry, Customer acknowledges that the foreign currency exchange rates fluctuate, and accepts the risk of such fluctuation, including fluctuations in rate between the time Customer submits the Entry Data Instructions and the time the transaction is executed and/or reversed, returned or recalled. Any payment returns and/or reversals will be credited to Customer's account in the currency in which Customer's account is denominated, and Customer is responsible for any rate fluctuations. In the event of an erroneous or duplicate IAT Entry originated for payment to a receiving bank outside the United States, the rights of Bank and Customer with respect to reversal or recall of such Entry are subject to the laws, regulations and payment system rules of the receiving bank's jurisdiction. Customer acknowledges and agrees that IAT Entries may be delayed in processing or posting due to the Bank's or RDFI's review of such Entries for OFAC compliance. Further, Customer understands and acknowledges that unlike PPD Credit Entries, there is no requirement under the Rules that IAT Credit Entries that are made available to an RDFI by its ACH operator by 5:00 pm on the banking day prior to the Settlement Date be made available to the Receiver at the opening of business on the Settlement date; cleared IAT Credit Entries must be made available no later than the Settlement Date of the Entry, but funds are not required to be available at opening of business on the Settlement Date. Incorporation of Account Documentation; Termination. The provisions of the account documentation, including terms and conditions governing the operation of business accounts and services, are incorporated into these Service Terms by reference. By acknowledging or signing the applicable account documentation or by using or continuing to use the ACH Origination Services, Customer agrees to these Service Terms. In addition to Bank's termination rights under the aforementioned documentation. Bank shall have the right to terminate or suspend these Service Terms and the Services upon notice to Customer in the event of the Customer's breach of the Rules. B. ACH TRANSACTION BLOCKING & ACH TRANSACTION REVIEW ACH Transaction Blocking is a Service that allows a Customer to block and return ACH debit and credit Entries originated to the Customer's account with the Bank. ACH Transaction Review allows the Customer to review ACH debit and credit Entries originated and posted to the Customer's account with the Bank and to instruct the Bank to return some or all of these transactions. 1. ACH Transaction Blocking: (a) Service. The Customer can select from a variety of authorization or blocking criteria and advise the Bank in a manner and form acceptable to the Bank. The Bank will return any blocked transaction indicating that the ACH debit was not authorized or that the ACH credit was refused. (b) Company IDs. If the Customer elects an option that blocks or allows ACH debits or credits from specified companies, the Customer must supply the Bank with the applicable ACH Company ID of the Originator as it appears on the Company/Batch Header Record. The Company ID will be the sole criterion for blocking debit and credit Entries (unless Customer has also set maximum dollar limits) and Bank will have no obligation to take any other steps to determine the identity of the Originator. The Customer will be solely responsible for obtaining the correct Company ID for each such Originator. The Customer understands that Company IDs are not unique and that a Company ID may identify more than one Originator, and one Originator may have multiple Company IDs. The Customer understands that Company IDs are not a perfect filter and that transactions from Originators may be blocked or allowed if the Originator uses a Company ID other than the one Customer identifies. The Bank will not be responsible for transactions blocked or allowed in accordance with the instructions the Customer provides for the Company ID. (c) Transactions Not Affected by Blocking. ACH debit and credit blocks do not apply to certain transactions. The following types of ACH- related transactions will not be blocked: • debits or credits to the Customer's account to offset any ACH credit or debit Entries originated by the Customer through Bank ; • reversals of previously received ACH credit or debit Entries; Page 20 of 37 • returns or reversals by the RDFT of ACH debit or credit Entries originated by the Customer through the Bank; • Reclamation Entries (debits); • debits or credits to the Customer's account initiated by the Bank or Bank's agent or affiliate to correct processing errors, effect back valuations, make other adjustments or, with respect to debits, for fees, charges or other amounts the Customer owes the Bank or Bank's affiliates; and • debits or credits to the Customers account that the Bank posts pursuant to its internal procedures in order to comply with applicable law, regulations or payment system rules or guidance. 2, ACH Transaction Review: (a) Service. Customer shall use filter criteria available through the service to select the types or categories of incoming ACH debit and/or credit transactions it wishes to review or the Customer may elect to review all incoming ACH transactions subject to Section 2(d) below. (b) Review and Return Process. Based upon the filter criteria selected by the Customer, ACH transactions meeting that criteria will be made available for the Customer to review not later than a designated time on the banking day following the day on which the transactions are posted to the Customers account. The details provided by the Bank for each Entry will include account number, dollar amount, company ID, receiver's name, standard entry class code and settlement date. (c) The Customer shall advise the Bank by means of an agreed upon transmission method not later than the Bank's designated cut-off time on the same day as transaction information is made available of those transactions, if any, that are unauthorized and that the Customer wishes to return. The Bank is entitled to rely on any instructions which it receives and which it reasonably believes to be genuine. The Bank shall return all such transactions and make corresponding adjustments to the Customer's account to which the transactions had been posted. All transactions reported to the Customer as to which Bank does not receive a timely instruction from the Customer will remain posted or be returned based on the Transaction Review profile default decision setting established by the Customer. (d) ACH Transactions Not Subject to Review. The following types of ACH transactions will not be made available for the Customers review and decisioning: • debits or credits to the Customer's account to offset any ACH Entries originated by the Customer through the Bank ; • reversals of previously received ACH Entries; • returns or reversals by the RDFT of ACH Entries originated by the Customer through the Bank; • Reclamation Entries; • debits or credits to the Customers account initiated by the Bank or Bank's agent or affiliate to correct processing errors, effect back valuations, make other adjustments, or to comply with legal requirements or for fees or charges the Customer owes the Bank or Bank's affiliates; and • if the Customer is also subscribing to the ACH Transaction Blocking service, any transactions blocked and returned pursuant to that service. (e) Certain Reviewed Transactions Maybe Returned/Posted Despite Instructions. Certain transactions reviewed and approved by the Customer may nevertheless be returned by the Bank. This will happen if (i) there are insufficient funds in the Customers account to cover the amount of an ACH debit or other charge, (ii) a stop payment was previously placed on the transaction, or (iii) the Bank determines the transaction must be returned for legal or regulatory reasons. Certain transactions that the Customer advises should be returned may nevertheless be posted by the Bank; these include ACH debits or credits to the Customers account that the Bank posts pursuant to its internal procedures in order to comply with applicable law, regulations or payment system rules or guidance. C. LOCKBOX Lockbox is a remittance processing Service offered to customers to support their accounts receivables business needs. Through this service, the Customers remittance deposits are sent to a Post Office Box and picked up by the Bank and delivered to or via courier for further processing and posting to the Customer's deposit account. 1. Service. The Bank will maintain the Post Office Box for the Customers remittances and will have unrestricted and exclusive access to the Post Office Box while providing the Lockbox Service. Customers requiring Caller Service or Business Reply Mail Service for remittance collection must obtain prior approval from the Bank. Upon approval, the Customer will secure such services directly with the United States Postal Service (the "USPS") and ensure the Bank is authorized to collect the mail. The Bank shall not be responsible for delays in processing due to the Customer's Page 21 of 37 failure to pay the USPS for such services or any other action taken or not taken by USPS. The Bank may direct clients to include specific codes or formats within their assigned address in order to ensure mail is identified correctly. The Customer is responsible for ensuring their customers' remittances are properly addressed in order to prevent delays in processing. 2. Deposit; Endorsement. The Bank will collect all mail delivered to the designated Post Office Box, and will open the mail, process the checks eligible for this service (the "Items") and credit the funds to the Customer account or process for collection the Items received, except: i) Items which the Customer has instructed the Bank in writing, and the Bank has agreed not to process; ii) Items which the Bank believes should receive the Customer's special attention; iii) Items for which the Customer is not the payee, unless the Customer has provided proper authorization to process for credit or collection of such Items; and iv) any other matter or merchandise received. The Bank will not process such excepted Items or other matters or merchandise, but will forward them to the Customer unprocessed. The Bank assumes no responsibility for the inadvertent processing of Items excepted from processing. The Bank will process credit card payments as point of sale transactions, obtaining authorization as required by applicable card rules; provided, however, the Bank will not place phone calls for authorization of referrals or process credit transactions. The Bank shall not be deemed a merchant processor and shall not be liable for any data entry errors or any chargeback. The Bank assumes no liability for any matter or merchandise received through the Post Office which is not a depositable Item, including cash. Any failure by the Bank to process an Item other than as provided herein does not constitute a failure by the Bank to exercise ordinary care. The Customer shall be liable to the Bank as a general endorser on all Items processed by the Bank. 3. Differing Amounts. If the amount of an Item written in words and figures differ, the Item will be processed for amount written in words. If the Item is accompanied by an invoice or statement and the amount on the statement matches the amount written in figures, and the Customer has requested, and the Bank has agreed, to process such Item for the amount written in figures, the Item may be processed for the amount written in figures. In the event the Bank processes the Item for the amount written in figures, the Customer indemnifies the Bank for any claim which may arise from that action. 4. Foreign Items. This Service is limited to Items drawn on domestic banks so to the extent the Bank notices that any Items drawn on foreign banks have been deposited, such Items shall be forwarded to Customer as unprocessable. 5. Returned Items; Re -presentment. If any Item is returned to the Bank unpaid for any reason or there is a claim involving an Item deposited to the Customer Account, the Bank will charge back that Item, together with any fees or other amounts allowed on such claims or for returned Items, against the Customer Account, regardless of whether such debit causes an overdraft to the Customer Account. If, however, the Bank has been instructed in writing by the Customer to re -present Items which have been dishonored or returned to the Bank unpaid for reasons other than account closed, the Bank may do so automatically and without notice to the Customer, and the Bank reserves the same rights to debit the Customer Account should any such Items remain unpaid after the re -presentment. 6. Security for Imaged Items. The Bank has specified Security Procedures for receiving and accessing Imaged Items, Imaged Documents and lockbox transaction data. The Bank is not obligated to send any images or data or allow access through the Delivery Media to any images or data which are not requested or accessed in accordance with the Security Procedures. The Customer acknowledges that once a CD-ROM is received, or it has accessed images by any Delivery Media, persons having access to the Customer's computers and image archives may have access to the Imaged Items, Imaged Documents and lockbox transaction data. 7. Image Option. if the Customer elects and this image option is available at the designated Bank processing location, the Bank will provide images of the Items ("Imaged Items") received together with images of related documents ("Imaged Documents"), through the media ("Delivery Media") and at the intervals agreed upon between the Bank and the Customer. The Customer may receive additional service material, including user guides, software licenses and other terms in connection with the selection of this option. 8. Original Documents; Image Storage. Unless the Bank has agreed otherwise, the Bank will image all items and associated remittances and retain original documents on site for no longer than 14 days. All original documents will be destroyed 14 days after processing. If the Customer uses the Bank's Regional Retail Lockbox product, associated original documents are retained on site no longer than 7 days. The Bank will store Imaged Items for a period of seven (7) years from the date of the applicable transaction regardless of any additional imaging service requested by the Customer. If the Customer elects storage of Imaged Documents, the Bank will store Imaged Documents for a period of thirty (30) days (Short Term Storage) to ten (10) years (Long Term Storage) from the processing date of the applicable transaction., per the Customer's selection If the Customer elects to image and not store Imaged Documents with the Bank, such images will be delivered to the Customer via daily Direct Image Transmission. 9. Accuracy; Legibility. The information delivered to the Customer through the Delivery Media will be the same as the information in the data entry file provided to the Customer for the applicable time period. If the data entry file contains errors, those errors will also occur on the Delivery Media, The Bank will provide images that are as legible as possible given the legibility of the underlying remittance documents and the selected Delivery Media. The Bank has no liability or responsibility for the condition of the original remittance items provided to the Bank, and it reserves the right to review and approve sample remittance items for legibility prior to providing this service. The Customer is responsible for reviewing images obtained through the Delivery Media and to promptly notify the Bank of any images that are not clear. 10. Disclosures. As between the Customer and the Customer's clients, if applicable, certain payments collected hereunder may be subject to various cut-off times and payment deadlines (the "Disclosures"). The Customer acknowledges and agrees that the Bank has no duty to inquire as to the content of any such Disclosures, is not bound by them, and makes no representations or warranties, explicitly or implicitly, regarding same. The Customer is responsible for ensuring that the processing and payment cut-off times established by the Bank are in compliance with the Disclosures and Customer's responsibilities under applicable laws and regulations. The Customer further acknowledges and agrees that the data processed by the Bank belongs to the Customer or the Customers clients. Page 22 of 37 D. COIN & CURRENCY Coin and Currency Services, also referred to as Cash Vault Services, provides coin and currency delivery and deposit services to companies that use large quantities of cash. With a nationwide vault network, Customers can place orders for coin and currency, make deposits and track activity by location through electronic reporting options. 1. Cash Orders 1.1. Placement of Cash Orders. The Customer may issue written instructions for the Bank to release United States coin and currency ("Cash") to an armored courier service (the "Courier") as designated by the Customer in accordance with the Bank's guidelines ("Cash Order"). The Customer acknowledges that Cash Orders may be transmitted to the Bank only during such times as set forth in the guidelines. The Bank is authorized to debit the account of the Customer designated in the Cash Order for the amount set forth in the Cash Order. If the Bank has agreed to such an arrangement, the Customer may also place a Cash Order directly at one of the Bank's branch locations by issuing a check to debit the Customer's account at the Bank or as a "cash for cash" exchange. If there are insufficient funds in the designated account, the Bank is authorized to refuse the Cash Order, to fill a partial Cash Order or to debit the designated account even if such debit causes an overdraft, or to debit any other account of the Customer at the Bank. 1.2. Cash Order Limits. The Bank and the Customer may agree to limit the amount of Cash that may be delivered pursuant to a Cash Order ("Cash Limit"). 1.3. Discrepancies for Cash Orders. All Cash Orders must be validated by the Customer within 24 hours of receipt. If a currency strap, coin bag or wrapped coin discrepancy is identified, the Customer may contact Cash Services Customer Support at 888-872-0517 to request a Cash Order Claim Form. The completed form and proper documentation must be sent to the Bank and post marked within 48 hours of receipt of the Cash Order. Any claims post marked after the 48 hour period may be denied and the Customer will have no right to refuse or receive an adjustment after such time period. 1.4. Cancellations and Amendments. A Cash Order may be cancelled by the Customer telephonically, electronically or in writing by a person the Bank reasonably believes to be authorized to act on behalf of the Customer and only if the cancellation is received within a reasonable time before the Cash is delivered to the Courier ("Cancellation"). A Cash Order may only be amended telephonically and the Bank will not be responsible for any change in a Cash Order it has received. Any attempt to amend a Cash Order electronically may result in duplicate Cash being delivered. 1.5. Notice of Rejection/Execution. If the Bank rejects a Cash Order request, it will promptly notify the Customer of the reason. The Bank will notify the Customer when it has executed a Cash Order. Unless, within three (3) business days after receipt of notification of the execution of a Cash Order the Customer notifies the Bank in writing that a Cash Order was unauthorized or otherwise unenforceable against the Customer, the Bank shall not be liable for executing the Cash Order as notified, including any loss of interest. 1.6. Security Procedure. The Bank must receive a Cash Order using a touch-tone telephone, or other electronic communications device mutually agreed upon by the Customer and the Bank, based upon codes assigned by the Bank to the Customer that identify the Customer and the location (collectively, "Codes"). The Customer agrees that use of the Codes constitutes a security procedure for verifying the authenticity of the Cash Order as being that of the Customer ("Security Procedure")... The Customer and the Bank will maintain reasonable security and control of the Codes. The Bank is not responsible or liable for detecting any error in the transmission or content of any Cash Order or Cancellation and the Security Procedure is not intended to detect any such error. No agreement or instruction of the Customer restricting acceptance of any Cash Order or Cancellation is binding on the Bank, except as set forth in these Service Terms or in a writing signed by the Customer and the Bank. These Security Procedures do not apply to Cash Order requests made by the Customer at one of our branch locations when the Customer is making a "cash for cash" exchange or issuing a check to debit the Customer's account at the Bank. 1.7. Geographical Limitations. The Customer represents and warrants that all Cash Orders will be used by Customer in its normal course of business at the Customer's store/office locations in the United States. 2. Cash Deposits 2.1. Standard Courier Service. The Customer may deliver and pick up shipments of Cash or checks to or from the Bank by using the services of a Courier that has been authorized by the Bank, who will act solely as the Customer's agent. The Courier must comply with the Bank's guidelines, as amended from time to time, and must maintain all licenses and permits required by law in addition to adequate insurance to cover its liabilities in providing courier services to the Customer. The Bank may refuse to permit any courier to enter its premises with or without cause, in which case the Bank will use reasonable efforts to promptly notify the Customer. With regard to Customer's Courier, Customer is responsible for any individual's actions while at the Bank's facilities including theft, property damage, intentional crimes and any other act or omission even if such actions would be considered outside the scope of their employment and whether the individual is impersonating an employee of the courier if the Bank has followed its customary procedures for identifying the individual. 2.2. Deposit Presentment and Processing for Standard Courier Service. With regard to deposits delivered to one of the Bank's vault locations, the Customer's Courier must deliver deposits in sealed tamper -proof plastic security deposit bags that meet the standards described in the Bank's guidelines and contain only Cash and checks. The bags may also contain food stamps if the Customer provides proof satisfactory to the Bank of the Customer's authority to redeem food stamps. The Bank will open the bags and process the deposits. Page 23 of 37 (a) Delivery to Vault. If the Bank agrees to accept the Customer deposits at a vault location, the Bank will provide a receipt indicating the number of bags it has received. This receipt is not an acknowledgment of the contents of any bag, nor is any telephonic or other acknowledgment of a deposit of which the Customer notifies the Bank by telephone or by electronic means. (b) Delivery to Branch for Delayed Processing. If the Bank agrees to accept the Customer deposits at a branch location, the Bank will not verify the amount of the deposits at the time of receipt but will provide the Customer with a receipt showing the amount indicated in the Customer's deposit slip. This receipt is not an acknowledgment of the contents of any bag. 2.3. Courier Service through the use of a Smart Safe or Recycler Machine. The Customer may use the services of a courier that has been authorized by the Bank, who will act solely as the Customer's agent. The courier must comply with the Bank's guidelines, as amended from time to time, and must maintain all licenses and permits required by law in addition to adequate insurance to cover its liabilities in providing courier services. The Bank may refuse to permit any courier to enter its premises with or without cause, in which case the Bank will use reasonable efforts to promptly notify the Customer. The Customer will receive Advance Credit only for Cash placed in Deposit Cassette (as defined below) component of the machine. The Customer's courier is authorized to transmit the Cash information only with regard to the Deposit Cassette component of the machine to the Bank on the Customer's behalf and the Bank, upon receipt of such data transmission, will provide provisional credit to the Customer's designated account. The courier will deliver the Cash to the Bank as directed by the Bank at the Customer's expense. The Customer authorizes the Bank to instruct the courier to pick up any Cash for which the Bank has given provisional credit at any time at the Customer's expense. For purpose of these Service Terms, "Deposit Cassette" is the component of the machine whereby the Customer places Cash into such component and only the courier is able to access such Cash once it is placed in the Deposit Cassette. 2.4. Deposit Presentment and Processing through the use of a Smart Safe or Recycler Machine. The Customer agrees that once the Cash is in the Deposit Cassette component of the machine, the Customer no longer has any ownership, control or rights with regard to the physical Cash and that the Bank is authorized to rely upon the transmitted information from the Customer's courier with regard to deposits or adjustments to the Customer's deposit account with the Bank. Once the Customer's courier has completed the verification of the Cash from the Deposit Cassette component of the machine and has transmitted the deposittadjustment information to the Bank, the Cash is then placed into the Bank's inventory at the courier's location. In the event of a dispute related to the amount credited to the Customer's deposit account, the Customer will initiate its claim and request for an investigation with its courier. 2.5. Discrepancies. All deposits are subject to verification. If there are differences between the amount credited by the Bank and the amount shown on the deposit slip prepared by the Customer, the receipt provided to the Customer or its agent upon initial presentment or the transmission received from the courier on the Customer's behalf, the currency will be re-counted for discrepancies over the minimum amount specified in the Cash Vault Services Product Guide, the "Threshold" amount, the Customer's representative designated in the service implementation questionnaire will be notified of the adjustment, and an adjustment fee will be charged. If the discrepancy is in the Threshold amount or less, the Bank will not adjust the Customer's account, the Bank will retain the discrepancy amount, and no adjustment fee will be charged. The Bank's determination and records as to its receipt of any bag and as to the contents of any bag is conclusive and binding on the Customer. 2.6. Relationship upon Delivery of Bags. Until the Bank recounts the contents of the bags and enters a final credit to the Customer's account, the Bank is not responsible for any claimed contents of the bags. The Customer should not include anything in a bag other than Cash and its deposit slip, and the Bank shall have no responsibility or liability if there is any other property included or claimed to have been included in a bag... 2.7. Delivery to Unattended Facility. If the Bank agrees to allow the Customer to use one of the Bank's unattended facilities (including but not limited to a night depository or commercial ATM), the Bank may provide the Customer with an access device (such as a key or card that may require a personal identification number ("PIN"). The Customer must return all access devices to the Bank upon request. The Bank will process any deposits delivered to an unattended facility as provided for in the Bank's guidelines. If the Customer receives a receipt from an unattended facility, the receipt is not an acknowledgment of the contents of any bag or of the receipt of any bag. While the Customer or the Customer's Courier is physically present at one of the Bank's unattended facilities, the Customer is a licensee only and the Bank has no responsibility for the safety of the Customer or its Courier while at such facility. 2.8. Liability at Unattended Facility. The Customer assumes all risks of using any unattended facilities, including risks of theft, robbery and personal injury; the Bank is not responsible if a facility fails to operate properly in any way, including failing to open, Gose, lock or unlock. It is the Customer's responsibility to verify that its bags have dropped down completely into the facility, and the Customer agrees that it will not leave any bags in any facility that does not appear to be operating properly. The Bank will not be liable to the Customer if any unattended facility, tele -entry or online system is closed or otherwise unavailable for use at any time. 2.9. Geographical Limitations of Cash Deposits. Cash Deposits must be delivered to the Bank by Customer's courier and from Customer's physical store/office locations in the United States. Cross-border cash deposits (i.e., cash brought into the United States from outside the United States) are strictly prohibited E. POSITIVE PAY, REVERSE POSITIVE PAY AND PAYEE VERIFICATION JPMorgan Chase Bank, N.A. (the "Bank") will provide Customer, in accordance with the provisions set forth in these Service Terms, with one or more of the services listed below (each a "Service") that help prevent check fraud on deposit accounts by identifying discrepancies between checks ("Items") presented to the Bank for payment from the Customer's demand deposit account associated with the Service (the "Account") and those Items that are Page 24 of 37 issued by Customer. The provisions of the Bank's account documentation, including terms and conditions governing the operation of business accounts and services as well as other service guides or material (the "Account Documentation") are incorporated into these Service Terms by reference. By signing the applicable Account Documentation or by using or continuing to use any of these Services, the Customer agrees to these Service Terms. 1. Services. With Positive Pay, the Customer sends check issuance information to the Bank and the Bank compares such information to Items being presented for payment. With Reverse Positive Pay, the Bank sends the Customer information on Items being presented for payment and the Customer does its own comparison. Payee Verification is an enhanced feature for Positive Pay whereby the Customer includes payee name information and the Bank compares such information against the payee names on Items being presented. As a condition precedent for receiving Payee Verification, the Customer must be receiving Positive Pay in connection with the same Account. 2. Issuance Information. The following information is defined as "Issuance Information" for each Item: i) Account number on which the Item is drawn; ii) Item serial number, iii) dollar amount; iv) issue date, (not as part of Reverse Positive Pay); and v) for Payee Verification only, the payee name. For Positive Pay and Payee Verification, the Customer will provide the Bank the Issuance Information by the banking day on which the Customer issues Items by means of a mutually agreed upon transmission method. The Bank will compare the Issuance Information with the Items presented to the Bank for payment against the Account. For Reverse Positive Pay, the Bank will send the Customer the Issuance Information and the Customer will compare such information with the Items they have issued. 3. Discrepancies. For Positive Pay and Payee Verification, if an Item is presented to the Bank for which it has not received timely Issuance Information or that contains information different from the Issuance Information for that Item, the Bank will notify the Customer by means of a mutually agreed upon method, by the designated time of the Banking Day following the Banking Day the Item is presented to the Bank for payment. The Customer shall advise the Bank by means of a mutually agreed upon method by the designated time on that same Banking Day whether any such Item is authorized for payment ("Presentment Decision"). In the event that the Customer fails to timely inform the Bank about any Item for which a Presentment Decision is requested, the Bank is authorized to return such Item unless otherwise agreed by the Customer and the Bank. For Reverse Positive Pay, the Bank will provide Issuance Information to the Customer of Items presented for payment; the Customer shall advise the Bank by means of a mutually agreed upon method by the designated time on that same Banking Day whether any such Item is not authorized for payment, and in the event that the Customer fails to timely inform the Bank as required, the Bank is authorized to pay such Item(s) unless otherwise agreed by the Customer and the Bank. The Bank is entitled to rely on any instructions by the Customer which it receives and which it reasonably believes to be genuine. If a Customer attempts to change an instruction previously given by sending an email or other message to the Bank, the Bank may, but has no obligation to, act upon such change request. 4. Payee Verification Additional Terms. For Payee Verification, Customer acknowledges that Items which have been converted to ACH transactions prior to being presented for payment will not be eligible for this service and the payee name information will not be compared to the Issuance Information for Items that have been converted to ACH transactions. If Customer fails to provide the Issuance Information in the file format required by the Bank, the Bank will not be liable for failing to detecting any discrepancy between the Item and the Issuance Information or for processing and payment of such Item. The Bank reserves the right to set a threshold amount for Items (as may be revised by the Bank from time to time) to be reviewed under the Payee Verification service (the "Threshold Amount"). The Items below the Threshold Amount will be handled according to the standard Account Documentation governing the Customer's Account; however, Customer will not be liable for such Items if the discrepancy would have otherwise been detected under this Service. With regard to Payee Verification, the Bank will compare the payee name provided in the Issuance Information to the payee lines contained in the name/address block identified on the Item (presented as provided for in the Bank's set-up requirements) and will otherwise be limited to those parameters specifically agreed to by the Customer and Bank. 5. Voided Items. The Customer agrees to place a void on an Item in the Issuance Information only with respect to Items that are not in circulation. If the Customer decides to stop pay an Item that it has already issued, the Customer is required to place a Stop Payment request pursuant to the relevant terms of the Account Documentation, outside of these services. 6. Item Payment. The Bank is not obligated to maintain signature cards for the Account and whether or not the Bank does maintain such signature cards, in no event shall the Bank be obligated to inspect any Item for the presence or authenticity of any signature or to determine whether any signature is authorized. The Customer acknowledges that the Bank's adherence to these procedures in these terms, in lieu of signature examination, will constitute the exercise of good faith and ordinary care by the Bank in handling Items presented for payment against the Account. 7. Over the Counter Presentment. The Bank may, without liability to the Customer, refuse to pay any Item presented for encashment at any of the Bank's branch locations. If an Item is presented for encashment at one of the Bank's branch locations at the teller line and the account is under the Positive Pay or Payee Verification Service, the Customer authorizes the Bank to pay such Item based upon the Positive Pay information at the teller line. If an Item is presented for encashment at one of the Bank's branch locations at the teller line and the account is under the Reverse Positive Pay Service, (i) the Customer authorizes the Bank to pay such Item pursuant to the Bank's policies and procedures for encashment, (ii) Customer assumes the risk of any loss that would have been prevented through the use of Positive Pay or Payee Verification services; and (iii) Customer agrees to unconditionally release, indemnify and hold harmless the Bank against any and all liability loss or claim relating to an Item being cashed or retumed over-the-counter. The Bank may charge a person who cashes an Item drawn on the Customer's Account a fee at the time of encashment. Page 25 of 37 F. CONTROLLED DISBURSEMENTS Controlled Disbursement Accounts help customers effectively manage the disbursement process to gain control over idle balances and automate funding transfers and is designed to provide disbursement totals early each business day. 9. Controlled Disbursement Account. Each controlled disbursement account ("Controlled Disbursement Account"), except as set forth herein, shall be opened and maintained in accordance with the Account Documentation. Customer agrees that if it fails to utilize one of the Bank's positive pay services on the Controlled Disbursement Account, that failure will constitute Customer negligence contributing to the making of any unauthorized signature and Customer assumes the risk that checks or drafts ("Items') presented against the Controlled Disbursement Account may be forged or altered, to the extent that the positive pay services the Bank offers may have prevented any loss. The Bank will have no liability for any loss related to an Item presented against the Controlled Disbursement Account which would otherwise generally have been returned under such positive pay services. 2. Payment of Items. Bank, on each banking day, will advise Customer of the total amount of Items drawn against the Controlled Disbursement Accounts that are presented for payment, on that day, to the Bank by a Federal Reserve Bank or another depository institution pursuant to a same- day settlement arrangement. Bank will honor Items which are properly payable, but shall have no obligation to pay any Item should sufficient immediately available funds to cover such Items not be transferred to the Controlled Disbursement Account in accordance with these Service Terms and the Account Documentation. 3. Over -the -Counter Presentment. Bank may, without liability to Customer, refuse to pay any Item presented for encashment at any of the Bank's branch locations. 4. Funding Account for Controlled Disbursement. Customer will maintain with Bank a designated account for purposes of funding the Controlled Disbursement Account, or the funding account may be maintained at an affiliated bank or other financial institution (the "Funding Account"). Customer authorizes Bank to debit the Funding Account for the total amount of the Items presented and any funds transfers against the Controlled Disbursement Account, and to promptly transfer such amount to the Controlled Disbursement Account even though such a debit may bring about or increase an overdraft. All funds transfers from the Funding Account to the Controlled Disbursement Account shall be in immediately available funds. Customer will maintain sufficient available funds in the Funding Account to cover Items and funds transfers presented against the Controlled Disbursement Account, and the Bank shall have no obligation to transfer funds, process Items for payment or complete any funds transfers unless there are sufficient available funds in the Funding Account. The Bank is authorized to debit the Funding Account for any obligations owed directly or indirectly on the Controlled Disbursement Account. The Bank shall not be liable for failure to pay any Item presented for payment against any Controlled Disbursement Account due to insufficient funds in the Funding Account. 5. Media. Bank will transmit to Customer by the transmission method or media agreed to by Customer and Bank information regarding Customer's Controlled Disbursement Account. 6. Routing Transit Number. Customer agrees to use the designated controlled disbursement account routing transit number on the Items it issues from the Controlled Disbursement Account. Customer acknowledges that if it fails to use such designated controlled disbursement account routing transit number the Bank is authorized to terminate this Service or any Service feature upon notice to the Customer. 7. Financial Condition. In the event of the deterioration of the financial condition of the Customer, as determined in the Bank's sole discretion, the Bank may immediately terminate the Service, any Service feature, and/or may convert any Controlled Disbursement Account to a stand-alone demand deposit account without prior notice to the Customer. 8. Third Party Usage. Customer agrees that it will not permit a third party to write checks on or otherwise issue payment transactions or instructions on Customer's Controlled Disbursement Account. Customer agrees to indemnify and hold Bank harmless from and against any and all actions, claims, demands, losses, liabilities or expenses whatsoever, including attorney's fees and costs, resulting directly or indirectly from Customer's breach of this Section 8. This indemnity shall survive the termination of these Service Terms. Notwithstanding anything to the contrary, Customer acknowledges that, if Customer breaches this Section 8, Bank may immediately terminate this Service or any Service feature upon notice to the Customer. G. IMAGE CASH LETTER 1. Service. These terms govern the image cash letter service (the "Service") which allows image -enabled check customers to prepare and transmit electronic deposit information and check images instead of preparing and physically depositing paper cash letters and associated original check. 2. Transmission and Processing. Customer shall provide through its own methods or devices the captured check images and check data from the Check, including the magnetic ink character recognition formatting (MICR) information through electronic transmissions (the 'Transmissions") in the format and specifications required by the Bank's File Standards and within the cut-off times provided by the Bank. Customer authorizes Bank to process the Transmissions as substitute checks, electronic images or photos in lieu, as may be applicable for further clearing through any other financial institution, clearinghouse or Federal Reserve Bank. If the Customer is eligible and has chosen to have Checks processed as ACH transactions, Bank will convert eligible Page 26 of 37 Checks to ARC or POP entries, as defined and provided for in the ACH Origination Service Terms. Customer agrees that it is solely responsible for the creation and transmission of these Transmissions to the Bank. If any Transmission (including any source document for purposes of these Service Terms) does not meet the Bank's or any transferee's standard requirements for processing, Customer assumes all risk of loss or delay in processing such Transmission and authorizes the Bank to either (a) return the Transmission to the Customer without further processing, (b) process the Transmission as sent from the Customer, (c) process the Checks as photocopies in lieu of the originals, or (d) repair or attempt to repair the Transmission for further processing. Under this Service, "Checks" shall mean checks and drafts drawn in US dollars on, or payable through, banks located in the United States (including Puerto Rico, Guam and the US Virgin Islands), endorsed for deposit to Customer's account at the Bank. 3. Image Cash Letter File Deposit Time. The Transmissions must be sent to Bank prior to the deposit deadline. Any Transmission will be deemed to have been received by Bank when the entire file has been written onto Bank's system and made available for Bank to validate. Based upon the size of the Transmission file, there may be a significant delay between the time Customer begins to send the file and the completion of the transfer as stated above. As a result, Customer will make every effort to send the Transmission file as early as possible. Files that are received after a deposit deadline will be considered deposited as of the next deposit deadline. Processing fees and funds availability will be assessed based on the deposit deadline that is met. 4. Customer Liability. Customer shall be solely responsible if any Transmission for which Customer has been given provisional credit is returned or reversed, and neither Bank nor its subcontractors shall be liable or responsible for same. Customer acknowledges that all credits received for deposit are provisional, subject to verification, final settlement or return. Information and data reported hereunder: (a) may be received prior to final posting and confirmation and is subject to correction and (b) is for informational purposes only and may not be relied upon. Customer agrees that Bank shall have no liability for the content of payment -related information as received from the Customer. Customer shall be solely responsible for the original Checks, including storage and retrieval. Customer agrees to provide a legible copy of an image or the original Check if requested by the Bank within five (5) business days of such request. If Customer is unable to provide the original or legible copy, Customer shall be liable for any associated loss or claim involving the Check. Customer will not present a Transmission or the original Check or substitute check more than once to the Bank if the initial Transmission was processed as an ACH transaction and shall be responsible for any and all losses or claims resulting from the Customer presenting such Check or Transmission for payment more than once through any method. 5. Suspension/Cancellation of Service. Bank reserves the right to suspend or terminate the Service, in whole or in part if Bank believes Customer is in breach of these Service Terms or is otherwise using or accessing the Service in a manner inconsistent with the rules and regulations relating to the Service being provided and such breach, use or access is not cured within three business days after notice to Customer. Further, this Service will automatically terminate if the Customer's account with the Bank is closed for any reason. Either party may terminate the Service upon thirty (30) days' prior written notice to the other party; provided, however, that the terms of Section 9 will apply to any termination prior to the time period set forth in the Pricing Schedule. 6. Intellectual Property Ownership. Neither these Service Terms nor the provision of the Service transfer to Customer any ownership or proprietary rights in the Bank's technology any work or any part thereof, and all right, title and interest in and to the Bank's technology will remain solely with Bank or its subcontractors. 7. WARRANTIES AND DISCLAIMERS, 7.1. CUSTOMER WARRANTY. CUSTOMER WARRANTS AND REPRESENTS TO THE BANK THAT: (A) EACH TRANSMISSION CONTAINS ACCURATE AND LEGIBLE IMAGES OF ALL OF THE INFORMATION ON THE FRONT AND BACK OF THE ORIGINAL CHECKS AT THE TIME EACH CHECK WAS TRUNCATED; (B) EACH TRANSMISSION ALSO CONTAINS A RECORD OF ALL APPLICABLE MICR. LINE INFORMATION REQUIRED FOR A SUBSTITUTE CHECK AND THE ACCURATE AMOUNT OF THE CHECK; (C) EACH TRANSMISSION CONFORMS TO THE TECHNICAL STANDARDS FOR AN ELECTRONIC ITEM SET FORTH IN REGULATION J AND FEDERAL RESERVE BANK OPERATING CIRCULARS AND FOR A SUBSTITUTE CHECK SET FORTH IN REGULATION CC; (D) NO PERSON WILL RECEIVE A TRANSFER, PRESENTMENT OR RETURN OF, OR OTHERWISE BE CHARGED FOR, THE CHECK (EITHER THE ORIGINAL CHECK, OR A PAPER OR ELECTRONIC REPRESENTATION OF THE ORIGINAL CHECK) SUCH THAT THE PERSON WILL BE ASKED TO MAKE PAYMENT BASED UPON A CHECK IT HAS ALREADY PAID; (E) CUSTOMER WILL NOT REDEPOSIT THROUGH THIS SERVICE ANY TRANSMISSION REPRESENTING A CHECK PREVIOUSLY DEPOSITED AND RETURNED TO THE CUSTOMER; (F) CUSTOMER WILL EMPLOY COMMERCIALLY REASONABLE SECURITY MEASURES AND FIREWALLS SUFFICIENT TO PROTECT THE TRANSMISSIONS AND STORAGE TO ENSURE NO UNAUTHORIZED ACCESS OR DUPLICATE PRESENTMENT; (G) CUSTOMER WILL ONLY CREATE TRANSMISSIONS FOR CHECKS THAT ORIGINATED AS PAPER CHECKS; (H) CUSTOMER HAS ESTABLISHED AN ANTI -MONEY LAUNDERING PROGRAM IN COMPLIANCE WITH ANTI -MONEY LAUNDERING LAWS AND REGULATIONS APPLICABLE TO IT AND SUCH ANTI -MONEY LAUNDERING PROGRAM INCLUDES POLICIES, PROCEDURES AND CONTROLS DESIGNED TO DETECT AND PREVENT MONEY LAUNDERING WHICH CUSTOMER BELIEVES EFFECTIVELY PREVENTS THE USE OF CUSTOMER'S OPERATIONS, PERSONNEL OR FACILITIES FOR MONEY LAUNDERING PURPOSES; AND (1) CUSTOMER WILL ONLY ACCESS THE SERVICE AND SEND TRANSMISSIONS TO THE BANK FROM LOCATIONS WITHIN THE UNITIED STATES; (J) CUSTOMER IS IN COMPLIANCE WITH ALL LOCAL LAWS AND REGULATIONS APPLICABLE TO IT IN THE USE OF THIS SERVICE. 7.2. DISCLAIMER. BANK AND ITS SUBCONTRACTORS MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE TECHNOLOGY OR SERVICE AND/OR ACCESS TO OR USE Page 27 of 37 OF THE SERVICE OR TECHNOLOGY PROVIDED TO CUSTOMER HEREUNDER. BANK AND ITS SUBCONTRACTORS SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THERE ARE CERTAIN SECURITY, CORRUPTION, TRANSMISSION ERROR AND ACCESS AVAILABILITY RISKS ASSOCIATED WITH USING OPEN NETWORKS SUCH AS THE INTERNET, AND CUSTOMER ASSUMES ALL SUCH RISKS. CUSTOMER SHALL MAKE AN INDEPENDENT ASSESSMENT OF THE ADEQUACY OF THE INTERNET IN USE OF THE SERVICE PURSUANT TO THE BANK'S PROCEDURES, CUSTOMER FURTHER ACKNOWLEDGES THAT THE SELECTION AND USE BY IT OF ANY THIRD PARTY SECURITY AND COMMUNICATIONS SOFTWARE AND THIRD PARTY SERVICE PROVIDERS IS THE SOLE RESPONSIBILITY OF CUSTOMER, AND BANK DISCLAIMS ALL RISKS RELATED THERETO, NOTHWITHSTANDING THAT THE BANK MAY RECOMMEND CERTAIN SECURITY AND/OR COMMUNICATIONS SOFTWARE AND SERVICES. CUSTOMER AGREES TO, AT ITS SOLE EXPENSE, PROCURE AND MAINTAIN ALL HARDWARE, BROWSERS, SOFTWARE AND TELECOMMUNICATIONS EQUIPMENT NECESSARY TO ACCESS THE SERVICE IN ACCORDANCE WITH THE BANK'S RECOMMENDED SYSTEM CONFIGURATION. 8. INDEMNIFICATION. IN ADDITION TO ITS INDEMNIFICATION OBLIGATIONS IN THE ACCOUNT TERMS, AND EXCEPT FOR LOSSES OR EXPENSES CAUSED BY BANK'S FAILURE TO EXERCISE ORDINARY CARE OR WILLFUL MISCONDUCT, CUSTOMER AGREES TO INDEMNIFY BANK FOR ANY LOSS OR EXPENSE SUSTAINED (INCLUDING ATTORNEY'S FEES AND EXPENSES OF LITIGATION) RESULTING FROM (i) CUSTOMER'S LACK OF AUTHORITY TO MAKE THE WARRANTIES PROVIDED HEREIN; (ii) ANY ACTION TAKEN OR NOT TAKEN BY BANK WITHIN THE SCOPE OF ITS AUTHORITY UNDER THESE SERVICE TERMS IN HANDLING A CHECK; AND (iii) ANY WARRANTY OR INDEMNITY REQUIRED TO BE MADE BY BANK WITH RESPECT TO A CHECK UNDER APPLICABLE LAW OR REGULATION. 9. Pricing Schedule/Volumefierim ination Penalties. Bank and Customer agree to the terms of the Pricing Schedule which are incorporated herein by reference, including the length of time the Service will be provided, the charges/fees and the volumes, as may be stated in the Pricing Schedule. If Customer terminates the Service or the Service is otherwise terminated without fault of the Bank prior to the period of time set forth in the Pricing Schedule, Customer shall pay the Bank a termination fee equal to twelve (12) times the average monthly transaction fee for the Service for the period of time the Service was provided to Customer. Such termination fee shall be paid within thirty (30) days' after the effective termination date. 10. Audit. Customer authorizes the Bank to audit its facilities where the Checks are imaged, stored and destroyed as well as where the Transmissions are processed under this Service upon reasonable prior written notice from the Bank. 11. Online Adjustments Services. If Bank and Customer agree, Customer will submit its adjustment requests through the web -based SVPCO Online Adjustment Service ("Online Adjustment") based on the following terms: For Customers choosing the deposit account option where they settle for the Items through the Customer's deposit account at Bank ("Deposit Account") option, Customer agrees to be bound by the SVPCO Electronic Adjustment Exchange Rules, as may be amended from time to time ("SVPCO Rules"). Bank will assist the Customer in implementing and registering for Online Adjustment. Customer will designate at least one Administrator by submitting the Secure ID Token Forth for Online Adjustments ("Form"). After the initial registration, Customer will be able to update its designated users directly through SVPCO. Bank may conclusively rely upon any information or instructions purported to be sent by the Customer through Online Adjustment. Customer agrees that Bank may charge Customer's Account for any adjustments and related fees. Customer agrees that the Bank shall have no responsibility with regard to the adjustment information transmitted through Online Adjustment. Notwithstanding anything to the contrary in these Service Terms or the Account Documentation, Online Adjustment will automatically terminate upon the termination or expiration of the agreement covering the SVPCO online adjustment service between Bank and The Clearing House. H. CHECK PRINT The Check Print Service enables the Customer instruct the Bank to create and mail checks and/or documents on behalf of the Customer. Print Orders. The Bank will execute each print order requested by the Customer which is received by the Bank in a manner described in these Service Terms or as otherwise provided by the Bank (the "Print Order). Print Order information shall include payee names and addresses. Customer agrees that it will not include any other personally identifiable information or any protected health information in its Print Orders. Print Orders may include printing of non-payment documents ("Documents") if agreed to by the Bank based upon these Service Terms. Check Pull Requests. For any Print Order received by the Bank, the Customer may request the Bank to pull a check(s) from processing by completing the Bank's manual check pull request form ("Check Pull Request"): provided, however, that a Check Pull Request will not be effective unless and until it is received by the Bank in the form required and the Bank has had a reasonable time to act upon such request. A Print Order may not be amended or modified. The Bank has no obligation to adjust or stop the payment or posting of a Print Order it has accepted. Page 28 of 37 3. Receipt of Print Orders. The Customer shall transmit Print Orders to Bank to the location and in compliance with the formatting and other requirements of the Bank set forth in its operating procedures. Bank may reject any Print Order that does not comply with these Service Terms. 4. Issuance of Checks/Documents. For each Print Order accepted by the Bank, the Bank will: (a) cause a check to be printed and completed; (b) cause a laser facsimile signature authorized by the Customer to be placed on the check; (c) if agreed upon, cause other documents to be completed and included with the check issuance ("Documents"); and (d) mail or send the check by courier along with any Documents as agreed upon (collectively, the "Issuance"). The Customer expressly grants the Bank the authority to create and process such Issuances. 5. Notice of Rejection. The Bank will promptly notify the Customer if a Print Order is rejected by the Bank and will advise the Customer as to the reason. The notice or advice shall be deemed commercially reasonable if made available through the Check Print Service or given electronically, orally, by telephone or facsimile transmission. 6. Control. The Bank is not responsible or liable for the detection of errors contained in any Print Order as received from the Customer and is entitled to rely on the information contained therein. 7. Reliance Upon Instructions. The Customer is responsible for, and the Bank may rely upon, the contents of any notice or instructions that Bank believes in good faith to be from the Customer without any independent investigation. The Bank shall have no duty to inquire into the authority of the individual giving such notice or instruction. In the event the Bank receives conflicting notices or instructions, the Bank is authorized to act on either the notice or instruction, or it can refuse to act. No restriction on the Bank's acceptance of any Print Order will be binding on the Bank, except as set forth in these Service Terms unless agreed to in writing by the Bank and the Bank has had a reasonable opportunity to act upon such change. 8. Limitation of Liability. The Bank's liability shall be limited to direct damages caused by the Bank's failure to use reasonable care. Reasonable care in providing the Check Print Service shall be measured by the relevant provisions of any service levels or business requirements and the standard of reasonableness of the procedures established for the transaction involved. Mere inadvertence or honest mistake of judgment shall not constitute a failure to perform such obligations or a failure to exercise reasonable care and in no case will be deemed wrongful. 9. Cashier's Checks. If the Bank creates cashier's checks under the Check Print Service, the following additional terms will apply: (a) Customer will send the cashier's check print file information ("File Information") to the Bank by the Bank's cut off time on a given day ("Day One"); (b) the Customer authorizes the Bank to debit the Customer's designated account ("Funding Account") for the amounts shown on the File Information on Day One; (c) as the cashier's checks from the File Information are being processed, the account reconciliation issue file ("ARP File") must match the date of funding found in the File Information of the next banking day ("Day Two"); (d) for any cashier's check for which there is insufficient funds in the Funding Account on Day One to fund the purchase of the cashier's check, the Bank is authorized to reject the creation of such cashier's check; (e) fully funded cashier's checks will be printed on Day Two; (f) if the Customer is using one of the Bank's online services, Customer will be able to view information regarding the cashier's checks which were funded and created and those that were rejected; (g) any information from the File Information which can not be used to create a cashier's check will be communicated to the Customer for further research and reconciliation; (h) if any cashier's check is returned as undeliverable, the cashier's check will remain outstanding in the Bank's cashier's check account and escheated according to applicable laws and regulations. If the payee of a cashier's check claims that the cashier's check was lost, stolen or destroyed before the funds are escheated, such claim will be handled in accordance with the Bank's procedures. I. ACH TAX PAYMENT Service. Bank will provide a service (the "Service") whereby Customer can direct Bank, via touchtone telephone or intemet platform, to make tax payments through the automated clearing house (ACH) system from an account with Bank that Customer specifies. Customer may use the service to pay: • any federal taxes covered by the Federal Tax Deposit Coupons (Form 8109) that Customer has executed and delivered to Bank from time to time; certain state taxes; and certain municipal taxes. Bank may pay taxes from Customer's account in accordance with any instructions issued in Customer's name that Bank verifies pursuant to the security procedures specified in these Service Terms. In using the Service, Customer agrees to comply with and be bound by the Operating Rules of the National Automated Clearing House Association ("NACHA Rules"). Receipt of Instructions and Cancellations. Customer may issue instructions and cancellations only during service hours that Bank specifies, and Customer acknowledges that Bank may change such service hours upon prior notice to Customer. Bank must receive instructions, including but not limited to payment cancellation instructions, not later than 6:00 p.m. ET (or such other time as Bank specifies) on the Business Day prior to the day on which the tax payment is due. For purposes of this Section, "Business Day" means a day on which the Bank is open for business in its New York office. Instructions received after such time shall not be processed until the following business day and Customer shall be liable for any charges, fees or costs associated with such payment. Bank may reject or delay processing of a tax payment if the request is not complete or is inaccurate or otherwise does not meet the criteria Bank specifies for acceptance herein or in the User Guide (as hereafter defined). Page 29 of 37 The Service is not designed or intended to be used for any ACH tax payment that is required to be formatted as an "International ACH Transaction" (or IAT) under the NACHA Rules. Customer agrees not to use or attempt to use the Service to originate any ACH tax payment that is required to be formatted under the NACHA Rules as an "International ACH Transaction" (or IAT). Customer shall indemnify and hold Bank harmless from and against any and all claims, demands, losses, fines, penalties, damages, liabilities and expenses, including, without limitation, legal fees and expenses, resulting directly or indirectly from any ACH tax payment processed or requested to be processed by Customer via the Service which should have been formatted under the NACHA Rules as an IAT. 3. Tax Payment Security Procedures. (a) A Bank -issued or approved access code and PIN and/or other security device ("Security Device") is required to access the Service. The Customer shall be bound by and adhere to the security procedures and other procedures for use of the Service advised to it in writing through any medium by the Bank, as may be revised from time to time upon notice to the Customer (the "User Guide"). The Customer shall notify the Bank immediately of loss or theft of a Security Device, any unauthorized use of a Security Device or any other breach of security. The Bank may dishonor or disable any Security Device at anytime and will inform the Customer of the same. The Customer agrees that any use of the Service with a Security Device is deemed to be carried out directly by and on behalf of the Customer. The Customer agrees to safeguard all Security Devices and to instruct each Authorized User (as defined below) to do the same. (b) This Section 3(b) applies to use of the Service through the designated Internet platform, but does not apply to touchtone telephone access. Customer shall designate an administrator (the "Administrator") who shall have authority in accordance with the operational instructions for the Service provided to Customer in the User Guide. Customer agrees to notify Bank of any change in Administrator in the manner and form designated by Bank. Any such changes shall be effective at such time as Bank has received such notice and has had a reasonable opportunity to act upon it. In accordance with the procedures contained in the User Guide, the Administrator shall be responsible for (i) designating individuals as users ("Authorized Users"); (ii) identifying the functions of the Service; (iii) requesting, creating, controlling, disseminating, and/or canceling user entitlements; (iv) receiving and distributing materials, notices, documents and correspondence relating to the security procedures; and (v) advising each Authorized User of his/her obligations hereunder and under the User Guide. The Administrator shall provide to the Bank, upon the Bank's request, a list of Authorized Users. 4. Open Network Access. The Customer acknowledges that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the internet, and the Customer assumes all such risks. The Customer shall make an independent assessment of the adequacy of the internet and the Bank's security procedures. The Customer further acknowledges that the selection and use by it of any third party security and communications software and third party service providers is the sole responsibility of the Customer, and the Bank disclaims all risks related thereto, notwithstanding that the Bank may recommend certain security and/or communications software and services. The Customer agrees to, at its sole expense, procure and maintain all hardware, browsers, software and telecommunications equipment necessary to access the Service in accordance with the Bank's recommended system configuration. 5. Funding. Customer authorizes Bank to debit Customer's applicable account for the amount of each tax payment and for any applicable bank fees and charges when due. In the event Customer does not have sufficient funds in Customer's applicable account to cover the amount of a tax payment, Bank shall have no obligation to make the tax payment for Customer. Bank may require Customer to pay Bank the amount of each tax payment on the date of transmission of the tax payment instruction or otherwise prior to the tax payment due date. Bank may from time to establish or revise maximum dollar limits for the total value of all outstanding files of tax payments that Bank will release on customer's behalf. Bank may change or cancel the limits anytime without prior notice to Customer, although Bank will try to notify Customer before Bank does that. Funds Bank receives and holds pursuant to the Service shall be held as a deposit liability to Customer and not in trust for Customer or the taxing authority. 6. Warranties; Indemnity. Except as specified below, Customer will be deemed to make the same warranties to Bank as Bank makes pursuant to the NACHA Rules although Customer will not be deemed to warrant the power of the Bank under applicable law to comply with the requirements of the NACHA Rules or the conformity of tax payments and other data Bank transmits to the file specifications contained in the NACHA Rules. Customer further represents and warrants to Bank that: (i) Customer shall not access the Service from any jurisdiction in which the Service is not authorized; and (ii) each tax payment Customer originates will comply with applicable U.S. laws and regulations and Customer acknowledges that payments may not be initiated that violate the laws of the United States. Customer agrees to indemnify Bank and Bank's employees, officers, directors and agents, and hold all of them harmless from and against any and all claims, demands, losses, liabilities or expenses (including attorney's fees and costs) resulting directly or indirectly from (a) Customer's breach of any warranty made under this Section and (b) compliance by Bank with any request Customer makes for a cancellation, stop payment, reversal or recall of any tax payment. Bank shall have no responsibility for any delay by any ACH Operator (as such term is defined in the NACHA Rules) or taxing authority in processing any tax payment Bank transmits to such entity or failure by such entity to process or apply any tax payment. 7. Stop Payments; Reversals and Recalls. Customer's instruction to stop payment of, reverse or recall one or more tax payments must be received by Bank in such time and manner as Bank specifies. Bank will process these transactions in accordance with Bank's procedures advised to Customer. Any reversal or recall initiated by Bank is subject to acceptance by the relevant taxing authority. Tax payment instructions may not be amended or modified. Payment Limits. Bank may from time to time establish or revise (a) maximum dollar limits for each payment to be made by the Customer to a specified taxing authority, and (b) aggregate limits for all payments to be made by the Customer to a specified taxing authority within a 24-hour period. Bank may change or cancel the limits at any time without prior notice to Customer, although Bank will endeavor to give prior notice to Page 30 of 37 Customer. Bank may require Customer to pay Bank the amount of any tax payment on the date of transmission to Bank or otherwise prior to the settlement date. Bank also may require Customer to maintain collateral with Bank in an amount Bank specifies. Limitation of Liability. Bank's maximum aggregate liability in connection with the Service shall be limited as provided in the Account Documentation (as defined in Section 9 below) and shall be further limited to the lesser of the amount of any penalty or interest actually imposed by the applicable taxing authority or the total fees Customer paid Bank during the prior 12 months. 10. Incorporation of Account Documentation; Termination. The Bank's terms governing the operation of business accounts and services ("Account Documentation") are incorporated herein, as the same may be amended from time to time. If and to the extent that there is a conflict between the Account Documentation and these Service Terms, the provisions of these Service Terms shall prevail. In addition to Bank's termination rights under the Account Documentation, Bank shall have the right to terminate or suspend these Service Terms and the Service upon notice to Customer in the event of Customer's breach of the NACHA Rules. J. VIRTUAL REMIT SERVICE TERMS Virtual Remit is a remote scanning service that processes remittances and promotes Customers' efficiency in their businesses. Through this service, the Customer's remittance deposits can be imaged and transferred to the Bank via a Bank supplied data platform for further processing and posting to the Customer's deposit account. 1. Service The Bank, which may include designated agents of the Bank, will provide Customer with Virtual Remit services for domestic transactions (the "Service") in accordance with the provisions set forth in this document (the "Service Terms"). The Service allows Customer to electronically transmit deposits of eligible checks and items (eligible checks and items are limited to personal checks, money orders, business checks, cashiers checks, traveler's checks payable in U.S. Dollars and drawn on U.S. banks or U.S. Postal Service Money Orders, payable to the Customer) by using a capture device, including a desktop scanner or mobile device (hereinafter referred to as a "Scanner"), to create an electronic image of an original paper check or item and other paper source documents (collectively, "Item") and transmitting the image of the Item ("Item Image") and related data to Bank. The provisions of the Lockbox Service Terms, Account Terms, Client Access Service Terms, and any other applicable Service Terms as may be amended from time to time (collectively, the "Account Documentation") are incorporated into these Service Terms by reference. By signing the applicable Account Documentation or by using or continuing to use the Service, Customer agrees to these Service Terms. If and to the extent there is a conflict between the Account Documentation and these Service Terms, the provisions of these Service Terms will prevail. Customer agrees that after the Item Image has been created and transmitted to the Bank for deposit, Customer shall not otherwise transfer or negotiate the original Item, substitute check or any other image of the Item. Customer further agrees that Customer shall be solely responsible for the original Items, including storage, retrieval and destruction. Customer must have in place policies and procedures for the secure storage and destruction of the original Items. Customer agrees that a copy made from the Item Image or substitute check of the Item, as defined by federal law, will become the legal representation of the Item for all purposes, including return item processing. Subpart B of Federal Regulation CC (availability of funds) does not apply when electronic images of Items are transmitted to Bank. Funds from deposits made via this Service will be available in accordance with the availability schedule for the Service. However, Bank may apply additional delays on the availability of funds based on any other factors as determined in the Bank's sole discretion. 2" Processing Customer shall provide through Bank approved devices, including a desktop scanner or mobile device, the Item Images in the format and specifications and in accordance with the procedures required by the Bank. The Bank may process the Items as substitute checks, electronic images or photos -in -lieu, as may be applicable for further clearing through another financial institution, clearinghouse or the Federal Reserve Bank. Customer assumes sole responsibility for the creation of these images and their subsequent provision to the Bank. If any Item Image does not meet the Bank's or any transferee's standard processing requirements, in processing such Items, Customer assumes all risk of loss or delay and authorizes the Bank to either (a) return the Item to the Customer without further processing, (b) process the Item as sent from the Customer, (c) process the Items as photos—in-lieu of the originals, or (d) repair or attempt to repair the items for further processing. Access to the Item Images and the use of a mobile device in conjunction with the Service are governed by the Client Access Service Terms, as may be amended from time to time. 3. Deposit Time Item Images are deemed received by the Bank when the Item Images have been transferred onto the Bank's system and validated by the Bank. Based upon the size of the batch of items, there may be a significant delay between the time Customer begins to send the items and the completion of the transfer as stated above. If Bank receives and validates the submitted deposit transmission no later than the Bank's designated cut off time (the "Cutoff Time") on a day that the Bank is generally open for business, i.e., Monday through Friday excluding weekends and state or federal holidays ("Business Day"), Bank will consider that Business Day to be the day of deposit (i.e., the date deposit is credited). If Bank receives and validates the submitted deposit transmission after the Cutoff Time or on a non -Business Day, the deposit will be considered to be made on the next Business Day. Whether the Cutoff Time has been met will be determined by the time displayed on the Bank's internal system clocks which may Page 31 of 37 not necessarily be synchronized with the internal clock displayed on Customer's computer or device. For this reason, Bank suggests that Customer submit its deposit transmissions to Bank sufficiently in advance of the Cutoff Time to avoid the possibility of missing the Cutoff Time. 0. Foreign Items The Service only accepts and processes Items drawn on U.S. chartered banks. & Warranties. Ll Customer represents and warrants to Bank that: • Customer will capture and transmit all Item Images using Bank approved hardware and software applicable to the Service's function; • Any image Bank receives accurately and legibly represents all of the information on the front and back of the Item as of the time the Item was truncated; • The information Customer transmits to Bank corresponding to an Item contains a record of all applicable MICR -line information required for a substitute check and the accurate amount of the Item; • The Item Image conforms to the technical standards for an electronic Item set forth in Regulation J or Federal Reserve Bank Operating Circular 3, and for a substitute check set forth in Regulation CC; • No person will receive a transfer, presentment, or return of, or otherwise be charged for, the Item (either the original Item, or a paper or electronic representation of the original Item) such that the person will be asked to make payment based on an Item it has already paid; • Customer will not redeposit through this Service any Item previously deposited and returned to Customer; • Customer will employ commercially reasonable security measures, including firewalls, sufficient to protect against unauthorized access or duplicate presentment; • Customer will only transmit Items that originated as paper checks; • Customer will comply with all applicable laws and regulations; • Customer will not use the Service for any purpose prohibited by foreign exchange regulations, postal regulations or any other treaty, statute, regulation or authority; and • If the Customer is depositing Items on behalf of third parties, the Customer also represents and warrants to the Bank that with respect to each Item deposited through the Service, the owner of the Item has authorized the electronic transmittal of the Item and guarantees all prior endorsements; Customer has established an anti -money laundering program in compliance with anti -money laundering laws and regulations applicable to it and such anti -money laundering program includes policies, procedures and controls designed to detect and prevent money laundering, including "know -your -customer" policies and procedures, monitoring of transactions for suspicious activities and reporting of suspicious activities, which Customer believes effectively prevents the use of Customer's operations, personnel or facilities for money laundering purposes. 6 New Features. Bank may, from time to time, introduce new features to the Service or modify or delete existing features in its sole discretion. Bank shall notify Customer of any of these changes to features if Bank is legally required to do so. By using any new or modified features when they become available, Customer agrees to be bound by the rules concerning these features. 7. Disclaimer. Bank makes no representations or warranties, whether express, implied or statutory regarding or relating to any of the software, capture devices or other hardware and/or access to or use of them or the related materials and the Service. Bank specifically disclaims any and all implied warranties of merchantability and fitness for a particular purpose and non -infringement. Bank and its subcontractors also do not guarantee that Customer's access to the Services will be uninterrupted, error free or secure. & Indemnification. Customer agrees to indemnify and hold the Bank harmless for any loss or expense (including attorney's fees and expenses of litigation) resulting from: breach of any of the warranties made by Customer pursuant to these Service Terms or the Lockbox Service Terms; any claim pertaining to any warranty or indemnity that Bank makes with respect to an Item under the Check Clearing for the 21st Century Act, Federal Reserve Board Regulations CC and J and all other laws, regulations and industry and clearing house rules applicable to Items as either the bank of first deposit, truncating or reconverting bank. Page 32 of 37 9. Customer Liability. Customer shall be solely responsible if any item for which Customer has been given provisional credit is returned or reversed, and neither Bank nor its subcontractors shall be liable or responsible for same. Customer acknowledges that all credits received for deposit are provisional, subject to verification, final settlement, warranty claims or return. Information and data reported under these Service Terms: (a) may be received prior to final posting and confirmation and are subject to correction and (b) are for informational purposes only and may not be relied upon. Customer agrees that Bank shall have no liability for the content of payment -related information as received from the Customer. Customer shall be solely responsible for the original Items, including storage, retrieval and destruction. Customer agrees to provide a legible copy of an image or the original Item if requested by the Bank. If Customer is unable to provide the original or legible copy, Customer shall be liable for any associated loss or claim involving the Item. 10. Suspension/Cancellation of Service. Bank reserves the right to suspend or terminate the Service, in whole or in part if Bank believes Customer is in breach of these Service Terms or is otherwise using or accessing the Service in a manner inconsistent with the rules and regulations relating to the Service being provided and such breach, use or access is not cured within three business days after notice to Customer. Further, this Service will automatically terminate if the Customer's account with the Bank is closed for any reason. Either party may terminate the Service upon thirty (30) days' prior written notice to the other party. 11. Intellectual Property Ownership. Neither these Service Terms nor the provision of the Service transfer to Customer any ownership or proprietary rights in the Bank's technology or any wont or any part thereof, and all right, title and interest in and to the Bank's technology will remain solely with Bank or its subcontractors. 12. Audits. Customer agrees that the Bank shall have the right to audit Customer's books, records, processes and procedures for managing and maintaining the security and safety of the scanners, transmissions and original Items, including the right to audit Customer's and Customer's agents, if any, physical locations where Customer scans original Items and processes electronic check images and data related to the Service.. Customer agrees that the use of scanners, including mobile devices, in conjunction with this Service is limited to the United States. K. ELECTRONIC CHANNELS 1. Service and Service Terms. The Bank will provide a service (the "Service") for electronic access to the Customer's account information, reports and data (collectively, "Data") and for the electronic transmission to the Bank of messages, service requests, and payment and non-payment instructions (each an "Instruction") and from the Bank of messages, notifications and alerts, via the J.P. Morgan Access® Online5m, J.P. Morgan Access® Mobiles", J.P. Morgan Host- to-Host/managed file transfer and J.P. Morgan Treasury Services API channels. The Bank reserves the right to modify the applications and products available via the Service. The Service is governed by these terms (the "Service Terms"), which incorporate the Bank's terms governing the business accounts and services, including service terms that govern the Bank's processing of Instructions transmitted via the Service (collectively, the "Account Documentation"), as the same may be amended from time to time. if and to the extent that there is a conflict between the Account Documentation and these Service Terms, the provisions of these Service Terms shall prevail. Capitalized terms used in these Service Terms, and not otherwise defined, have the meaning set forth in the Global Account Terms or other account terms applicable to the Customer. 2. Security Procedures and Other Controls 2.1. General. The security procedures for each channel are set forth below, as may be modified on notice to the Customer through any medium (each, a "Security Procedure"). Any Instruction, the authenticity of which has been verified through a Security Procedure, shall be effective as that of the Customer, whether or not authorized, and notwithstanding that the Instruction may result in an overdraft of an Account. Controls unilaterally implemented by the Bank shall not be deemed to be Security Procedures for purposes hereof unless explicitly identified as such in writing. The Customer is responsible for implementing any procedures and requirements set forth in the applicable documentation provided to it by the Bank, as well as any subsequent modification to the procedures and requirements that are designed to strengthen the Security Procedures. 2.2, Security Procedures for Access Online and Mobile Channels. 2.2.1. Access Online. The Security Procedure for verifying payment Instructions given in the Customer's name via the Access Online channel is validation of a user ID and confidential password of an Authorized User (as defined in Section 2.5 below), a token code generated by a Bank issued or approved security device ("Security Device") assigned to that Authorized User and Bank transaction review as specified in Section 2.4. 2.2.2. Access Mobile. The Security Procedure for verifying payment Instructions given in the Customer's name via the Access Mobile channel is either (i) validation of the registration with the Bank of the mobile device, a biometric identifier, and the private swipe key of an Authorized User (as defined in Section 2.5 below) and transaction review as specified in Section 2.4 or (ii) validation of a user ID and confidential password of an Authorized User (as defined in Section 2.5 below), a token code generated by Security Device assigned to that Authorized User and transaction review as specified in Section 2.4. Page 33 of 37 2.2.3. Controls Offered to Customer. For Access Online and Mobile, the Customer may choose to apply certain controls offered by the Bank to the Customer from time to time designed to reduce the Customer's risk of erroneous or unauthorized transactions. The Customer is responsible for choosing controls that are appropriate for the Customer taking into account, among other things, the nature and scale of the Customer's business, including the size, type and frequency of payment orders normally issued to the Bank, and the nature of its technical environment, internal accounting controls and information security policies and procedures (collectively, "Customer Internal Controls"). The Security Procedure that is established by agreement of the Customer and the Bank herein is established in view of the Customer Internal Controls applied by the Customer. 2.3. Security Procedures and Certificate Procedures for Host-to-Host/Managed File Transfer and API Channels. The Security Procedure for verifying payment Instructions given in the Customer's name via the Host-to-Host/managed file transfer and API channels is authentication of a digital signature certificate, which authenticates transmitted files on the basis of the corresponding security key (the "Signature Certificate") and transaction review as provided in Section 2.4. The Customer and the Bank will use the following procedures for the use of a transport certificate, which establishes a secure session between the Bank and the Customer on the basis of a corresponding security key (the "Transport Certificate") and the Signature Certificate. Each of the Signature Certificate and the Transport Certificate are referred to herein as a "Certificate" and the corresponding security key as a "Security Key". 2.3.1. Certificate Procedures and Requirements. The Customer shall comply with the Bank's procedures and requirements for Certificates and Security Keys notified to the Customer, including but not limited to Certificate validity period, key strength and cryptographic specifications, as amended from time to time. Any request to the Bank to add, update or delete a Security Key shall include the applicable Certificate, a text file or other physical representation of the public Security Key of such Certificate and any other information in the manner and form designated by the Bank. The Bank shall have the right to rely on any request that the Bank believes in good faith to have been sent by the designated security administrator ("Security Administrator'), notwithstanding that such Security Administrator may be a third party agent acting on behalf of the Customer. 2.3.2. Certificate Expiration. Notwithstanding any courtesy notifications the Bank may send to the Customer regarding the Customer's impending Certificate expiration, the Customer acknowledges that it is the Customer's sole responsibility to update the Certificate prior to its expiration date. The Bank shall have no liability for any loss or damage (including, for the avoidance of doubt, any indirect, special, punitive or consequential damages or losses) arising from the Customer's failure to timely update its Certificate. To allow for proper execution of administrative procedures, and to prevent any lapse in service or emergency procedures, the Customer must request a Certificate change at least 30 days prior to actual Certificate expiration. 2.4. Transaction Review. In addition to the Security Procedures described above, the applicable Security Procedure for each channel also includes transaction review based on various risk characteristics. The transaction review shall be conducted in accordance with commercially reasonable protocols selected by the Bank. Additional authentication from the Customer, such as call-back verification, may be required to complete certain transactions identified by the Bank through transaction review. 2.5. Confidentiality/Security Breach. The Customer will be responsible for safeguarding and ensuring that the Security Procedures and Security Devices are known to and used (i) in the case of Access Online and Mobile, only by individuals designated as users by the Security Administrators ("Authorized Users'), or, (ii) in the case of the Host-to-Host/managed file transfer and API channels, only by the Security Administrators. The Customer shall notify the Bank immediately in the event of any loss, theft or unauthorized use of a Security Procedure or a Security Device or any other breach of security. The Bank may dishonor or disable any Security Device or any aspect of the Security Procedures at any time without prior notice and will inform the Customer of the same. In addition, each Customer must implement its own physical and logical security, as well as management controls, that appropriately protect the hardware, software, and access controls used in the transaction process from unauthorized access and use. 2.6. Security Administrator Designation. The Customer shall designate Security Administrators who shall have equal authority as specified in Section 2.7 below. The Bank is entitled to rely on any such designation of a Security Administrator. The Customer agrees to notify the Bank of any change in Security Administrators in the manner and form designated by the Bank. Any such change shall be effective at such time as the Bank has received such notice and has had a reasonable opportunity to act upon it. 2.7. Security Administrator Responsibilities. Each Security Administrator shall be authorized by the Customer to and be responsible for (i) designating individuals as Authorized Users with respect to the Access Online and Mobile channels; (ii) identifying the functions of the Service that each Authorized User may access; (iii) requesting, creating, controlling, disseminating, and/or canceling user entitlements with respect to the Access Online and Mobile channels; (iv) managing the Customer's Certificates and corresponding Security Keys with respect to the Host-to-Host/managed file transfer and API channels; (v) receiving and distributing materials, notices, documents and correspondence relating to the Security Procedures; and (vi) advising each Authorized User of his/her obligations hereunder or under any of the applicable Account Documentation. The Security Administrators shall provide to the Bank, upon the Bank's request, a list of Authorized Users for the Access Online and Mobile channels. In the absence of a valid designation of a Security Administrator at any time or in the event that, after reasonable efforts, the Bank is unable to contact a Security Administrator, the Bank may deliver Security Devices and materials and deliver/receive Security Keys to/from any person authorized to act on behalf of the Customer with respect to the Accounts. 2.8. Processing. The Customer acknowledges that the application of the Security Procedures and any controls unilaterally implemented by the Bank may cause delays in processing Instructions or result in the Bank declining to execute an Instruction. Page 34 of 37 I Open Network Access; Equipment THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, STATUTORY OR IMPLIED, WITH REGARD TO THE SERVICE ARE HEREBY DISCLAIMED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND COURSE OF DEALING OR USAGE OF TRADE OR WARRANTIES OF NON -INFRINGEMENT OR WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICE. TO THE EXTENT THAT ANY IMPLIED WARRANTIES CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, ANY SUCH IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS FROM THE INITIAL DELIVERY DATE OF THE RELEVANT SERVICE. THE BANK AND ITS THIRD PARTY DATA AND SERVICE PROVIDERS DO NOT WARRANT OR GUARANTEE THE SECURITY, SEQUENCE, TIMELINESS, ACCURACY, PERFORMANCE OR COMPLETENESS OF THE DATA OR THAT ANY PART OF THE SERVICE WILL BE ERROR -FREE, WITHOUT DELAY OR UNINTERRUPTED. The Customer is responsible for, at its sole expense, obtaining, installing, maintaining and operating all browsers, software, hardware, telecommunications equipment or other equipment (collectively, "System") necessary for the Customer to access and use the Service in accordance with the Bank's recommended system configuration. The Bank makes no endorsement of any System or third party site, notwithstanding that the Bank may recommend certain Systems or provide a link to a third party site where the Customer may download software. The Customer shall at all times maintain current and effective anti-virus, anti-spyware or other security software and shall take all reasonable measures to maintain the security of its System. The Customer acknowledges that there are certain security, corruption, transmission error, and access availability risks associated with using open networks such as the Internet. The Customer further acknowledges that it has made an independent assessment of the adequacy of the Internet, the System and the Security Procedures in connection with the use of the Service. The Customer assumes all risks and liabilities associated with the operation, performance and security of its System and the use of the Internet or other open networks, failure or use of Customer's or third party equipment, hardware, browsers, operating systems and/or other software or programs, and services or persons outside of the Bank's control, and the Bank disclaims all such risks. The Customer shall not use any equipment, hardware, software or program that harms the Bank. The Customer agrees to indemnify and hold the Bank, and its agents, employees, officers and directors, harmless from and against any and all claims, damages, demands, judgments, liabilities, losses, costs and expenses arising, directly or indirectly, from the Customer's use of Customer's or third -party software or program. The Bank may in its discretion provide training or information on best practices to the Customer from time to time but in so doing it will not be considered a consultant or advisor with respect to cybersecurity. 0. Instructions; Data 4.1. The Customer shall be solely responsible for the genuineness and accuracy, both as to content and form, of all Instructions given to the Bank's in the Customer's name and verified through the applicable Security Procedure, 4.2. The Customer acknowledges that Data may not have been reviewed by the Bank, may be inaccurate, and may be periodically updated and adjusted. The Bank is not obligated to assure the accuracy of Data and will not be liable for any loss or damage arising out of the inaccuracy of Data. Further, the Bank shall have no liability for the receipt or viewing by any party of Data sent to the destinations designated by the Customer, including but not limited to email addresses, fax and telephone number(s). 5. Customer Warranties The Customer represents, warrants and covenants to the Bank that: (i) prior to submitting any document or Instruction that designates Authorized Users, the Customer shall obtain from each individual referred to in such document or Instruction all necessary consents to enable the Bank to process the data set out therein for the purposes of providing the Service; (ii) the Customer has accurately designated in writing or electronically the geographic location of its Authorized Users and shall provide all updates to such information; (iii) the Customer shall not access the Service from any jurisdiction which the Bank informs the Customer or where the Customer has knowledge that the Service is not authorized; and (iv) the Security Procedures offered to the Customer conform to the Customer's wishes and needs and the Customer has not requested Security Procedures other than those expressly agreed by the Customer and the Bank. The Customer hereby represents, warrants and covenants to the Bank that these Service Terms constitute its legal and binding obligations enforceable in accordance with its terms. 6. Miscellaneous 6.1. The additional jurisdiction specific provisions set forth in the attached Exhibit are applicable to the Customer based on the domicile of the Customer. Where any local laws or regulations of any jurisdiction apply as a result of the Customers Authorized Users accessing the Service from such jurisdiction or as a result of the location of such accounts in such jurisdiction, the jurisdictional specific provisions of that jurisdiction set forth in the attached Exhibit shall apply to the use of the Service by such Authorized Users. 6.2. These Service Terms shall be govemed by and construed in accordance with the laws of the State of New York, USA (without reference to the conflict of laws rules thereof). 6.3. All disputes relating to or in connection with these Service Terms solely arising outside the United States shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be (i) Singapore where the dispute arises solely in Asia and (ii) London where the dispute arises elsewhere (other than the United States) and the arbitration shall be conducted in English, except that (a) disputes solely between a Customer domiciled in the People's Republic of China and JPMorgan Chase Bank (China) Company Limited shall be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") for arbitration in accordance with its rules in effect at the time an application is made, with the place of arbitration being Beijing and the arbitration being conducted in English; and (b) disputes involving a Customer domiciled in Taiwan Page 35 of 37 shall be irrevocably submitted to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the borough of Manhattan in New York City. With respect to any dispute, suit, action or proceedings arising in the United States relating to these Service Terms, the Customer irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the borough of Manhattan in New York City. 7. Mobile 7.1. Accepting use of the Bank's SMS text notification service and/or Access Mobile channel constitutes the Customer's authorization for the Bank to send Data, message notifications and alerts through any communication service providers, including both Internet and telecommunications providers, which shall each be deemed to be acting as the Customer's agent. Such providers may not encrypt communications. 7.2. Authorized Users may be required to accept an application agreement or license in order to download Access Mobile. The Customer acknowledges that the Account Documentation shall in all cases govern the provision of these services. 7.3. The Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device. Exhibit A - Jurisdiction Specific Provisions A. Australia & New Zealand To the extent that any supply made by the Bank under these Service Terms is a taxable supply for the purposes of the Australian Goods and Services Tax, or that goods and services tax under the New Zealand Goods and Services Tax Act 1985 is payable in respect of any supply under this License Agreement, ("GST"), the fees payable in respect of that taxable supply ("original amount") will be increased by the amount of GST payable in respect of that taxable supply. Customer must pay the increased amount at the same time and in the same manner as the original amount. B. Indonesia The Bank and the Customer agree that, for the effectiveness of any termination of these Service Terms or the Services provided hereunder, they hereby waive any provisions, procedures and operation of any applicable law to the extent a court order is required for the termination of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms. Section 4.2 shall be replaced by "Except for losses directly resulting from errors or delay caused by the Bank's gross negligence or willful misconduct, the Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device." C. Malaysia/Labuan In relation to accounts held in Malaysia (excluding Labuan) and/or where the Service is provided in Malaysia (excluding Labuan) references in the Service Terms to "Bank," shall mean J.P. Morgan Chase Bank Berhad. In relation to accounts held in Labuan and/or where the Service is provided in Labuan, references in the Service Terms to "Bank," shall mean J.P. Morgan Chase Bank, NA., Labuan Branch. The Service provided by J.P. Morgan Chase Bank Berhad shall be accessed through http://www.jpmorganaccess.com.my and the Customer undertakes not to access or utilize or attempt to access or utilize the Service through any other JPMorgan website. D. Republic of China (Taiwan) Section 4.2 shall be replaced by "Except for losses directly resulting from errors or delay caused by the Bank's gross negligence or willful misconduct, the Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device." The Customer acknowledges that it will take steps to ensure it enters into the correct website before attempting to access the Service. European Union. The Customer acknowledges that it is not a "consumer" for the purpose of the European Union's Electronic Commerce Directive ("ECD") (i.e., that it is not an individual) and agrees that the Bank shall not be required to make any disclosures or do any other thing which a non- consumer may agree not to require under the UK rules and legislation implementing the ECD. For further information on the Bank, please see "Notice regarding EU e-commerce information" in the Terms & Conditions on http:/twww.jpmorgan.com. Details of the Bank's processing activities of personal data can be found in its EMEA Privacy Policy, which is available on the Bank's website at www.jpmorgan.com/privacy/EMEA. The Bank's EMEA Privacy Policy may be updated or revised from time to time without prior notice. The EMEA Privacy Policy may be used to assist the Customer with providing a fair processing notice to the Customer's underlying data subjects. Page 36 of 37 (ii) The Customer agrees that it has established rights necessary to provide personal data to the Bank and that the Customer will provide any requisite notice to individuals and ensure that there is a proper legal basis for the Bank to process the personal data as described in and for the purposes detailed in the Bank's EMEA Privacy Policy. Both the Customer and the Bank will comply with its respective obligations under applicable privacy laws. 02018 JPMorgan Chase & Co. All Rights Reserved. JPMorgan Chase Bank, N.A. Member FDIC. Eligibility for particular products and services is subject to final determination by J.P. Morgan and/or its affiliates. Page 37 of 37 EXHIBIT C SCHEDULE OF BILLING RATES J.P. Morgan Chase Bank, N.A. Page C-1 EXHIBIT C SCHEDULE OF BILLING RATES GEAERAL BANKING SERVICES Service Average Proposed Description Monthly Volume Unit Cost ACCOUNTGENERAL Account Maintenance 17 $5.0000 ZBA Master Account1 $5.0000 ZBA Sub Account 2 1 $5.0000 DEPOSITORY SERVICES Branch Deposits 6 $2.5000 Deposits - Electronic Web 141 $0.0200 Deposit Correction 3 NO CHARGE Deposited Items - On Us I Remote Deposit Capture 178 $0.0500 Deposited Items - Transit I Remote Deposit Capture 8,360 $0.0500 Currency Deposited (per $1) 151,232 $0.7000 Per $1,000 deposited Return Item Redeposit 6 $3.0000 ACH Return Item 1 $2.0000 Return Item 15 $4.0000 Deposit Reconciliation Service 1 560.0000 Deposit Reconciliation Service (Per Deposit) 332 $0.1000 per item Remote Deposit Capture Maintenance (Relationship) 1 NO CHARGE Remote Deposit Capture Maintenance (Terminal) 6 $5.0000 Remote Deposit Capture - Deposit Item 7,075 $0.0700 Return Item Special Handling 3 $3.0000 VAULT SERVICES Cash Vault Deposit 185 $1.5000 Cash Vault Deposit Surcharge - Mixed 58 N/A Cash Vault Deposit - Coin Bag - Loose - Standard 17 $1.5000 Cash Vault Deposit - Coin Bag - Loose - Non -Standard 18 $1.0000 Cash Vault Deposit - Coin - Mixed - Non -Standard 86 $3.7500 Exception Item Monitoring Maintenance 1 $0.0100 charge Positive Pay - Returned Check 1 per loose bill Positive Pay - Maintenance 2 ordered in a non Positive Pay Items 1.388 Fed standard Cash Vault Currency Furnished - Non -Standard (per Si) 1,817 strap Change Order - StandinglTelephone 2 $2.0000 Check Block - Maintenance per Account TBD $0.100 per Charge for a rolled con order that is less than a full box of 50 Cash Branch/Vault Rolled Coin Furnished 1 rolls. PAPER DISBURSEMENT SERVICES Checks Paid 1,388 $0.0500 Image Items Check Images 1.388 $0.0200 per image capture Image Items and Statement Check Images 1,388 $0.01500 per image storage Check Image CD-ROM - Item Maintenance 1 530.0000 Check Image CD-ROM - Item and Statement Maintenance 2 N/A Exception Item Monitoring Maintenance 1 N/A Positive Pay - Returned Check 1 $5.0000 Positive Pay - Maintenance 2 NO CHARGE Positive Pay Items 1.388 $0.0150 Positive Pay Exceptions 6 $1.0000 Payee Positive Pay - Maintenance (Per Account) 2 NO CHARGE Check Block - Maintenance per Account TBD NO CHARGE ACCOUNT RECONCILIATION SERVICES ARP Monthly Base - Full Reconciliation 2 $20.0000 EXHIBIT C SCHEDULE OF BILLING RATES ARP Full Recon - Item 1,388 $0.0200 Online ARP Statements & Reports - Monthly Base per Account 2 NO CHARGE ARP Statements & Reports (ExceUCSV) - Monthly Base per Relationship 1 N/A ARP Statements & Reports (ExceUCSV)- Per Item 1,388 N/A ARP Correction - Rejected IssueslVoids 23 $2.5000 ACH SERVICES ACH Item Received -Credit 804 $0.0300 ACH Item Received - Debit 89 $0.0300 ACH Notification of Chane 1 $4.0000 ACH Fraud Protection Maintenance 1 $3.0000 ACH Filler Authorizations 6 $0.5000 ACH ODA Blocks 2 $0.0500 ACH File Input 19 NO CHARGE VIA ONLINE PORTAL ACH Originated Credit (Transmitted via Online Platform NACHA File) 2,666 $0.0500 ACH Originated Credit (Transmitted via FTP) TBD $0.0200 ACH Originated Debit (Transmitted via Online Platform NACHA File) 37 $0.0500 ACH Originated Debit (Transmitted via FTP) TBD $0.0200 ACH Deleted Rem 1 $2.0000 ACH Reversal Item 1 $2.0000 ACH Online Return Subscription - Account 2 N/A ACH Online Return Subscription - Item 1 $2.0000 ACH Monthly Maintenance 2 N/A Online Access to ACH Module (Account) 1 $0.0000 ACH Online Fraud Filter Review - Monthly Base 2 $3.0000 ACH Online Fraud Filter Review - Per Item 1 $o 2500 WIRE TRANSFER SERVICES Incoming Wire - Domestic 5 $4.0000 Wire Notification - Phone 5 NO CHARGE Online Book Transfer - Debit 1 $3.0000 Online Automated Non -Repetitive Wire - Domestic 4 $4.0000 Online Wire Notification 9 NO CHARGE Online Wire Maintenance - Integrated 1 N/A Online Token Monthly Maintenance (per user) TBD NO CHARGE INFORMATION REPORTING SERVICES Previous Day Reporting - Maintenance (Per Relationship) 1 $25.0000 Previous Day Reporting - Maintenance (Per Account) 17 $12.5000 Previous Day Transaction Detail - Item- 2.727 $0.0700 Current Day Reporting - Maintenance (Per Relationship) 1 N/A Current Day Reporting - Maintenance (Per Account) 17 N/A Current Day Transaction Detail - Item- 2.727 N/A Stop Payment - Automated 4 $2.0000 Online Image View < 90 Days - Item 5 N/A Online Image View > 90 Days - Item TBD N/A Inline Image View - 1 year TBD $.0400 Online Positive Pay Exception - Integrated 1 $1.0000 Online Positive Pay File Import 1 $1.0000 Online Positive Pay Images 16 N/A E-mail Notification (Volume Estimated) 50 NO CHARGE INVESTMENT SERVICES Monthly Investment Sweep (Monthly Maintenance) 1 $0.0000 E -LOCKBOX SERVICE Online Account Maintenance TBD WA E -Lockbox Base Fee TBD $20.0000 Transmission TBD $0.0000 E -Lockbox Item TBD $0.0300 Electronic Credit TBD $0.0300 Electronic Debit TBD 1 $0.0300 Online Bank Statement TBD NO CHARGE EXHIBIT C SCHEDULE OF BILLING RATES POTENTIAL NEW SERVICES Remote Cash Safe - Monthly Maintenance Per Location TBD $30.0000 $0.7000 Per $1,000 Remote Cash Safe - Per $1 Deposited TBD deposited Remote Cash Safe - Per Deposit TBD $2.5000 ADDITIONAL REQUIRED SERVICES* ADD ADDITIONAL SERVICES BELOW AS NEEDED' TOTAL ANNUAL COST" 'Refer to the attached Pro Forma and Comprehensive Fee Sheet for accurate inclusive line -items. "Annualized estimated costs vary based upon different line -items and volumes between the incumbent banks and J.P. Morgan. The line -items listed in this pricing matrix may entail additional line items and volumes not listed. Please refer to the attached Pro Formas and Fee Sheets for accurate estimated costs. —J.P. Morgan does not charge per pull of reported items, intra -day, or current day reporting. Reporting is charged per transaction loaded to J.P. Morgan ACCESS Cash Balances and Transactions Reporting with a 45/90/tyr/2yr history (retention can be changed). Please refer to attached Pro Forma for accurate pricing for reporting. City of Newport Beach Pro Forma Analysis J.P. Morgan Updated Pricing Date: August 19, 2019 Request for Proposals NO 19.55 Comprehensive Banking Services Service Analysis* E('R Rate: 1.85ou, Service Description AFP Number of Units Unit _Price Charge for Service ACCOUNT SERVICES 105 - DAILY OVERDRAFT OCCURRENCE FEE 000212 0 $0.0000 $0.00 1005 -ACCOUNT MAINTENANCE 010000 17 $50000 S8500 1006 - ACCT MAINT-INT 010010 0 $5.0000 $0.00 1008 - ACCT MAINT-INT ADJ BAL 010010 0 $5.0000 $0.00 1010 - STATEMENT CYCLES 010307 0 $0.0000 $0.00 1014 - ACCOUNT STATEMENT - PAPER 010310 17 $5.0000 $85,00 2315 - OVERDRAFT NSF ITEM RETURNED 150340 0 $5.0000 $0.00 2316 -OVERDRAFT NSF ITEM PAID 150341 0 $5.0000 $0.00 3499 - POST NO CHECKS MAINTENANCE 150OZZ 0 $0.0000 $0.00 7640 - CREDIT POSTED- ELECTRONIC 010101 971 $0.0200 $19,42 7641 - DEBIT POSTED - ELECTRONIC 010100 94 $0.0200 $1.88 7856 - CASH CONCENTRATION MAINTMASTER 010020 1 55.0000 $5.00 7857 - CASH CONCENTRATION MAINT SUB 010021 2 $5.0000$10.00 52.67 Subtotal 250302 1 $2.0000 $206.30 ACH PAYMENTS 5149 - COP ZELLE TRANSACTION 250101 0 50.4000 50.00 Subtotal $0.00 AUTOMATED CLEARING HOUSE 2237 - TRANS REVIEW MAINTENANCE 250000 2 $3.0000 $6.00 2238 - TRANS REVIEW FILTER EXCEPTION 250102 1 $0.2500 $0.25 2239 - TRANS REVIEW REJECT - MANUAL 250302 0 ` $0.2500 $0.00 2268 - PAYSOURCE ORIGINATED ITEM 250102 0 $0.1400 $0.00 2695-ACH MAINTENANCE 250000 0 $100000 $0.00 2700 - CREDIT ORIGINATED 250101 0 $0.0200 50.00 2705 - DEBIT ORIGINATED 250100 0 50.0200 50.00 2710 - DELETION / REVERSAL - MANUAL 250620 0 $10.0000 50,00 2716 - CREDIT RECEIVED 250201 825 $0.0300 524,75 2717 - DEBIT RECEIVED 250200 89 50.0300 52.67 2720 - RETURN ITEM 250302 1 $2.0000 $2.00 2722 - NOTIFICATION OF CHANGE 251070 1 $4.0000 $4.00 2729 - RETURN NOTIFICATION - ONLINE 250400 1 $1.0000 $1.00 2730 - NOTIF OF CHANGE - ONLINE 250400 1 $1.0000 $1.00 2732 - ELOCKBOX FILE PROCESSING 259925 23 $0.0000 $0.00 2740 - RETURN ITEM REDEPOSIT 250310 0 $1.0000 $0.00 2742 - CREDIT ORIGINATED - JPM ACCESS 250101 2.666 $0.0500 $133.30 2744 - DEBIT ORIGINATED - JPM ACCESS 250100 37 $0.0500 $1,85 2746 - JPM ACCESS ACH MAINTENANCE 250000 1 $0.0000 $0.00 2751 - ELOCKBOX RETURN - ELECTRONIC 250302 0 52.5000 $0.00 2752 - ELOCKBOX NOC - ELECTRONIC 251070 0 $2.5000 $0.00 2753 - DELETION / REVERSAL - ELEC 250620 2 52.0000 $4.00 2765 - ACH BATCH/FILE PROCESSED 250501 0 $4.0000 $0.00 2796 - ADDENDA RECORD ORIGINATED 250120 0 $0.0300 $0.00 2809 - NOTIF OF CHANGE - EMAIL 251070 0 $1.0000 $0.00 2810 - RETURN NOTIFICATION - EMAIL 250400 0 $1.0000 $0.00 2812 - NOTIF OF CHANGE - FAX 251071 0 $2.0000 $0.00 2814 - NOTIF OF CHANGE - TRANSM 251070 0 S17500 $0.00 2818 - RETURN NOTIFICATION - TRANSM 250400 0 S10000 $0.00 2860 - TRANSACTION BLOCK MAINTENANCE 251050 1 $3.0000 $3.00 2861 - ACH TRANS BLOCK AUTHORIZED ID 251051 8 50.5000 $4.00 5159 - COP CLIENT PROGRAM MAINTENANCE 250000 0 $150.0000 $0.00 5160 - COP TRANS DECLINE/EXPIRE 250101 0 $0.2000 $0.00 5161 -COP TRANS ACCEPTED " 250101 0 $06500 $0.00 5488 - ELOCKBOX IMPLEMENTATION FEE WANED 251000 0 $0.0000 $0.00 5489 - ELOCKBOX MAINTENANCE 050030 1 520.0000 $20,00 5490 - ELOCKBOX TRANSACTION RECEIVED 050300 2.1 1 1 50.0300 563.33 5491 - ELOCKBOX TRANSACTION REFORMAT 050311 0 $0.0000 $0.00 5492 - ELOCKBOX RETURN - MANUAL 050530 0 $12.0000 $0.00 5493 - ELOCKBOX ADDENDA RECEIVED 250220 0 $0.0200 $0.00 5497 - ELOCKBOX TRN REPAIR MAINT 999999 0 $0.0000 $0.00 5498 - ELOCKBOX TRN REPAIR ITEM EDIT 999999 0 $00400 $0.00 8019 - ACH ORIGINATED SAME DAY CREDIT 250101 0 $0.5000 $0.00 8020 - ACH ORIGINATED SAME DAY DEBIT 250100 0 S0.5000 $0.00 8021 - ACCESS ACH CREDIT - SAME DAY 250101 0 50.7500 50.00 8022 - ACCESS ACH DEBIT • SAME DAY 250100 0 50.7500 $0.00 Subtotal 100000 0 50.0000 $271.15 BAIISWIFTASO REPORTING 100000 0 $0.0000 $0.00 " 3645 - DT FILE IMPLEMENTATION FEE WANED 4004ZZ 0 $0.0000 $0.00 3653 - H2H FILES TRANSMITTED OVER 67 4004ZZ 0 $0.0000 $0.00 3654 -H2H FILES TRANSMITTED OVER 5MB 4004ZZ 0 $5.0000 $0.00 6080 - H2H CURRENT DAY MONTHLY SVC 4004ZZ 0 $0.0000 $0.00 6085 - H2H ACCOUNTS REPORTED 4004ZZ 0 $0.0000 $0.00 6093 - H2H CHECK ITEMS REPORTED 400110 0 $0.1500 $0.00 6094 - H2H TRANS DETAIL REPORTED 400110 0 $0.1500 $0.00 6095 - H2H NON -CHECK ITEMS REPORTED 400110 0 $0.1500 $0.00 Subtotal 100000 0 $0.0035 $0.00 BANKING CENTER SERVICES 1306 - BRANCH CREDITS POSTED 100000 6 $2.5000 $15.00 1311 -ATM CHECK DEPOSIT -IMAGE 100000 0 50.0000 $0.00 1312 - ATM CASH DEPOSIT - IMAGE 100000 0 $0.0000 $0.00 1316 - BRANCH DEPOSIT -BAGGED COIN 100012 0 57.5000 $0.00 1317 - BRANCH COIN DEPOSIT FULL BAG 100014 0 $2.0000 $0.00 1318 - BRANCH ORDER - COIN ROLL 100044 0 $0.0500 $0.00 1319 - BRANCH ORDER CURRENCY STRAP 10004A 0 $0.2000 $0.00 1320 - BRANCH DEPOSIT IN NON STD BAG 100099 0 $2.0000 $0.00 1332 - BRANCH DEPOSIT ADJUSTMENT 100500 3 $0.0000 $0.00 1333 -BRANCH ORDER PROCESSED 100040 0 $3.0000 $0.00 7173 - NIGHT DROP CASH VERIFICATION 100000 0 $0.0015 $0.00 7174 - TELLER LINE CASH VERIFICATION 100000 0 $0.0035 $0.00 Subtotal $15.00 DEPOSITORY SERVICES 501 - CHECK DEPOSITED -ON US 100220 0 50.0500 $0.00 513 - CHECK DEPOSITED -TRANSIT 100224 0 50.0500 S0.00 519 - IMAGE GROUP ONE 100214 1.244 50.0370 $46.03 520 - ON -US STANDARD 100210 390 $0.0250 $9.75 521 - ]RD PERIOD ONE 100214 0 50.1000 $0.00 524 - FILE TRANSMISSION REC.- VPN 21 (FLAT) $150.0000 $150.00 526 - IMAGE GROUP TWO 100214 1.726 50.0270 $46.60 528 - IMAGE GROUP TWO - TIER 2 100214 1,290 50,0300 $38.70 541 - REMOTE DEPOSIT CAPTURE ITEM 101320 3,238 $0.0500 $161.90 548 - REMOTE DEPOSIT CAPTURE MAINT 101300 6 55.0000 $30.00 704 - DEPOSIT CORRECTION 100230 0 55.0000 $0.00 746 - ON US PREMIUM 100210 300 S0.0500 S15.00 748. ICL DEPOSIT LATE 100200 0 52.0000 $0.00 751 - IMAGE GROUP ONE - PERIOD TWO 100214 311 $0.0550 S17.11 752 - IMAGE GROUP ONE - PERIOD THREE 100214 0 $0.1200 $0.00 756 - ICL DEPOSIT STANDARD 100200 0 $1.5000 $0.00 757 - IMAGE QUALITY SUSPECT ITEMS 999999 27 50.2500 $6.75 758 - NON -CONFORMING IMAGE ITEMS 999999 1 $5.0000 $5.00 759 - ICL DEPOSIT EARLY 100200 0 $1.0000 $0.00 1390 - REMOTE DEPOSIT CAPTURE MOBILE 101300 0 $1.0000 $0.00 1400 - CREDITS POSTED 010101 0 $0.3000 $0.00 1435 - RETURN ITEM 100400 15 54.0000 S60.00 1437 - RETURN MULTIPLE LOCATIONS 100430 0 $0.6000 $0.00 1438 - RETURN ALTERNATE ADDRESS 100401 0 $1.0000 $0.00 1439 - RETURN EXPEDITED DELIVERY 100403 0 $1.0000 $0.00 1446 - RETURN IMAGE 100415 0 $0.2500 50.00 1448 - RETURN DETAIL REPORTING 100411 0 50.5000 50.00 1450 - RETURN ITEM REDEPOSIT 100402 6 $3.0000 518.00 Subtotal $604.84 DISBURSEMENT SERVICES 1321 -CHECK CASHING NON -ACCT HOLDER 150501 0 $8.0000 $0.00 2320 - STOP PAYMENT - MANUAL 150420 0 $15.0000 $0.00 2321 -RANGE STOP PAYMENT -ELECTRONIC 150410 0 $50.0000 $0.00 2322 - RANGE STOP PAYMENT -MANUAL 150421 0 $1500000 $0.00 2338 - STOP PAYMENT AUTOMATIC RENEWAL 150412 0 $10000 $0,00 2370 - CHECK / DEBIT POSTED 010100 1,388 $0.0500 $69.40 3495 - IMAGE STORAGE PER ITEM 151351 1.388 S00150 520.82 6616 -CHECK INQUIRY MAINTENANCE + $35.0000 $70.00 6620 - RECON REPORT I STATEMENT MAINT 200306 2 50.0000 $0.00 6625 - EXCEPTION NOTIFICATION - ACCT 150030 2 $5.0000 $10.00 6639 - STOP PAYMENT - ELECTRONIC 150410 4 52.0000 $8.00 6641 -DATA DOWNLOAD 200306 2 $20.0000 $40.00 6644 - ISSUE INPUT UPLOAD 200201 0 $1.0000 $0.00 6645 - IMAGE RETRIEVAL PER RETRIEVE 151352 0 S1.0000 $0.00 6646 - IMAGE RETRIEVAL >91DAY 151352 0 $2.0000 $0.00 Subtotal $218.22 HOST TO HOST " 3606 - PAYSOURCE TEST FILE FEE WANED 300440 0 S0.0000 $0.00 3608 - PAYSOURCE MTHLY MAINT (PER ID) 3000ZZ 0 5150.0000 $0.00 " 3609 - PAYSOURCE IMPLEMENT BASIC FEE 3622 - PAYSOURCE TRANSACTION FEE 3629 - PAYSOURCE SPLIT REMIT EMAIL 3630 - PAYSOURCE FILE TRANSMISSION 300400 300112 300105 300500 0 0 0 0 $0.0000 50.1500 52.5000 $10.0000 $0.00 $0.00 $0.00 $0.00 Subtotal 269999 0 $0.1300 $0.00 INT REC & PAY - COLLECT 310200 3.672 S0.3000 51101.60 6158 - REMOTE LOCKBOX CAPTURE MAINT 101300 0 520.0000 $0.00 6159 - REMOTE LOCKBOX CAPTURE ITEM 101320 0 $0.4000 $0.00 6161 - REMOTE LOCKBOX CAPTURE REJECT 050530 0 $1.0000 $0.00 6872 - REMOTE LOCKBOX CAPTURE MOBILE 101300 0 $1.0000 $0.00 Subtotal $0.00 INT REC & PAY - CONNECT 5586 - MAINTENANCE - ONLINE 999999 1 5100.0000 $100.00 5588 - IVR MINUTE 269999 0 $0.1300 $0.00 5590 - TRANSACTION INITIATED 310200 3.672 S0.3000 51101.60 5597 - STATEMENT/ BILL IMAGE STORED 310200 0 S0.0500 $0.00 5672 - IMPLEMENTATION & DEVELOPMENT 269999 1 50.0000 $0.00 5730 - MAINTENANCE - MULTI -CHANNEL 999999 0 50.0000 $0.00 5731 -MAINTENANCE -ACCOUNT STORAGE 999999 0 $0.0000 $0.00 Subtotal $1,201.60 INT REC & PAY - REPORT 6179 - RECEIVABLES MAINT - ONLINE 050005 11 $25.0000 $275.00 6187 - LONG TERM STORAGE - CHECK 050620 8,500 $0.0150 $127.50 6188 - LONG TERM STORAGE - DOCUMENT 050620 5.290 $0.0150 $79.35 6191 - ALERTS - PER ALERT 011021 0 $0.0000 $0.00 6198 - RECEIVABLES MAIN - REPORTS 05031Z 0 525.0000 $0,00 6280 - RECEIVABLES MAINT - RETURNS 100416 0 $25.0000 $0.00 6800 - TRANSMISSION MAINT - INBOUND 050400 0 5100.0000 $0.00 6846 - LONG TERM STORAGE - PAYMENT 050620 2,111 50.0200 $42.22 6852 - TRANSMISSION MAINT - DATA 050400 10 $20.0000 $200.00 6853 - TRANSMISSION PER ITEM - DATA 050401 10.611 $0.0100 $106.11 6854 - RECEIVABLES MAINT - DOWNLOADS 050406 0 $25.0000 $0.00 6855 - TRANSMISSION MAINT - IMAGE 050420 0 $100.0000 $0.00 6856 - TRANSMISSION PER ITEM - IMAGE 050420 0 $0.0300 $0,00 Subtotal $830.18 JPMORGAN ACCESS 6040 - MONTHLY SERVICE .100610 1 S250000 525.00 6041 -ACCOUNTS REPORTED 40044Z 17 $12.5000 $212,50 6043 - TRANSACTIONS REPORTED - 45 DAY 400662 0 S00300 $0.00 6044 - TRANSACTIONS REPORTED - 90 DAY 40066Z 0 S00300 $0.00 6045 -TRANSACTIONS REPORTED -1 YEAR 40066Z 2,748 $0.0400 $109,92 6051 -TRANSACTIONS REPORTED - 2 YEAR 40066Z 0 $0 1000 $0.00 6053 - EXTENDED TRANSACTION DETAIL 40066Z 8,181 $0.0000 $0.00 6076 -ACCT TRANSFER ITEM 400699 0 $1.0000 50.00 Subtotal $347.42 LIQUIDITY SERVICES 7849 - INVESTMENT SWEEP - MAINT 450020 0 S0.0000 S0.00 Subtotal 50.00 RECEIPTSTREAM/ENH REC SVCS 2629 - EDI SUMMARY REPORT JPMACCESS 300524 0 $2.0000 S0.00 2631 - EDI DETAIL REPORT JPMACCESS 300524 0 $20000 $0.00 " 2639 - EDI FORMAT IMPLEMENTATION FEE WANED 300320 0 $0.0000 $0.00 2642 - EDI ACCOUNT FEE 300010 0 $50.0000 $0.00 3614 - ENHANCED REC SVCS MTHLY MAINT 300010 0 $50.0000 $0.00 Subtotal $0.00 RECONCILIATION SERVICES 3205 - FULL RECONCILEMENT - PER ITEM 200110 1.388 S00200 $2776 3207 - FULL RECONCILEMENT - MAINT 200010 2 $20.0000 $4000 3209 - PARTIAL RECONCILEMENT - MAINT 200020 0 $10.0000 $0.00 3210 - PARTIAL RECONCILIATION -PER ITM 200120 0 $0.0150 $0.00 3228 - PAYEE NAME VERIFICATION 150122 1.388 $0.0150 $20.82 3262 - POSITIVE PAY MAINTENANCE 150030 2 $0.0000 $0.00 3263 - EXCEPTION ITEM 150300 7 $1.0000 $7.00 3268 - PP NON RECON MAINTENANCE 150030 0 $5.0000 $0.00 3269 - ISSUE INPUT WITHOUT RECON 200201 0 51.0000 $0.00 3271 -ISSUE INPUT FILE WITH RECON 200201 1 S1.0000 $1.00 3272 - CHECK EXCEPTION RETURN 150320 1 $5.0000 $5.00 3291 - OUTPUT FILE 200301 0 $0 0000 $0.00 3293 - EXCESSIVE ARP REJECTS 200210 0 $01500 $0.00 3294 - DATA ENTRY - MANUAL 200210 23 $2.5000 $57.50 3322 - DEPOSIT RECON MAINTENANCE 100600 0 560.0000 $0.00 3325 - DEPOSIT RECON ITEMS 100610 0 50.1000 $0.00 3376 - ARP CUSTOM REPORT 200324 0 50.0000 $0.00 3384 - CD ROM - PER CD 151353 0 $50.0000 $0.00 3385 - CD ROM MAINTENANCE 151353 0 $30.0000 $0.00 3386 - IMAGE CAPTURE PER ITEM 151351 1,388 $0.0200 $2776 Subtotal $186.84 SCANNABLE LOCKBOX 6107 - SNLB SCANNABLE ITEM 050101 5,262 50.2000 $1,052.40 6108 - SNLB OCR DOCUMENT 050122 5.262 $0.0100 $52.62 6141 - SNLB OCR DOC IMAGE CAPTURE 05011 R 5,262 $0.0400 $210.48 6142 - SPECIAL IMAGE HANDLING 05011 R 0 $0.2000 $0.00 6209 - SNLB SORT - MANUAL 050113 0 $0.1000 $0.00 6210 - SNLB BALANCING 05011 P 0 $0.0800 $0.00 6807 - SNLB MULTI ITEM (CHECK) 050202 0 S0,2800 $0.00 Subtotal 51,315.50 VAULT SERVICES 1310 - VAULT DEPOSIT 100100 185 $1.5000 5277.50 1459 - VAULT DEPOSIT PER $1,000 10011Z 151 $0.7000 $105.70 1468 -VAULT EMAIL NOTIFICATION 100154 0 $0.5000 $0.00 1475 - VAULT DEPOSIT ROLLED COIN 100110 0 $0.2000 $0.00 1476 -VAULT ORDER COIN ROLLS 100144 1 $0.1000 $0.10 1477 - VAULT ORDER - COIN ROLL BOX 100146 0 $0.0800 $0.00 1479 - VAULT ORDER COIN BAG LOOSE 100147 0 $3.0000 $0.00 1482 - VAULT DEPOSIT STD STRAP - NOTE 100115 7,908 50.0000 $0.00 1485 - VAULT NOTE -SPECIALIZED 100115 0 $0.0025 $0.00 1486 - VAULT DEP NON STI) STRAP - NOTE 100114 1.977 50.0000 $0.00 1493 - VAULT DEPOSIT IN NON STD BAG 100199 18 $1.0000 $18.00 1495 - VAULT STANDARD ORDERS 100141 2 52.0000 $4,00 1497 - VAULT ORDER CURRENCY STD STRAP 10014A 0 $0.4000 $0.00 1498 - VAULT EXPEDITED SPECIAL ORDERS 100143 0 525.0000 $0.00 1499 - VAULT ORDER CURR NON STD STRAP 100148 260 50.0100 $2.60 1506 - VAULT DEP PARTIAL OR MIXED BAG 100111 86 $3.7500 $322.50 1525 - VAULT DEPOSIT STD COIN BAG 100113 17 $1.5000 $25.50 1535 -VAULT ENVELOPE DEPOSIT VERIF 100104 0 S1.0000 $0.00 1617 - VAULT DEPOSIT ADJUSTMENT 100501 0 $5.0000 $0.00 1620 - SMART SAFE MAINTENANCE 100199 0 530.0000 $0.00 1621 - SMART SAFE ADVANCE CREDIT 100199 0 $2.5000 $0.00 1624 -WEB CUR SVCS -DEPOSIT DETAILS 100199 0 51.0000 50.00 1627 - WEB CUR SVC -VAULT TREND REPORT 100199 0 S2 0000 $0.00 Subtotal $755.90 WHOLESALE LOCKBOX 6101 - LOCKBOX - MAINT 050001 4 575.0000 5300.00 6102 - WNLB ADDITIONAL DAILY DEPOSIT 050302 0 $25.0000 $0.00 6103 - WEEKEND PROCESSING 050136 0 $30.0000 $0.00 6106 -WHOLESALE ITEM 050100 0 $0.4000 $0.00 6114 - UNPROCESSABLE ITEM 050530 25 $0.4000 $10.00 6115 - NO CHECK ITEM 05011 M 28 $0.4000 $11.20 6116 - CHECK CLEARING 100212 5,262 $0.0650 5342.03 6117 - INCOMING COURIER PACKAGE 05011P 0 $25.0000 50.00 6120 - CASH PROCESSING 050138 0 $6.0000 $0.00 6126 - CHECK MICR CAPTURE 050121 5.262 50.0200 $105.24 6127 - DATA CAPTURE 050126 110,502 $0.0100 51105.02 6135 - PAPER DELIVERY PREP 05011 L 25 50.2500 $6.25 6136 -OUTGOING PACKAGE PREP 05041Z 1 $10.0000 $10.00 6140 - DOCUMENT IMAGE CAPTURE 05011 R 0 $0.1000 $0.00 '• 6154 - ADDITIONAL PROGRAMMING FEE WAIVED 050137 40 $100.0000 $0.00 6167 - WNLB >10 ACCEP PAY > 5 UNACCE 050131 0 $0.2000 $0.00 6168 - WNLB 25+ ACCEP PAY 10+ UNACCEP 050131 0 $0.4000 $0.00 6171 -WNLB BALANCING 05011P 0 $0.0500 $0.00 6173 - FORGN ITEMS SENT FOR COLL 050105 0 $10.0000 $0.00 6245 - DEPOSIT PREPARATION 050301 0 $0.7500 $0.00 6805 - ONLINE DECISION MGR MAINT 050006 4 $75.0000 $300.00 Subtotal 52,189.74 WIRE - U.S. 5822 - ELECTRONIC BOOK DEBIT SIT 350124 1 $3.0000 $3.00 5823 - ELECTRONIC BOOK DEBIT REPAIR 350122 0 $4,0000 $0.00 5824 - ELECTRONIC FED DEBIT S/T 350100 4 $40000 $16.00 5825 - ELECTRONIC FED DEBIT REPAIR 350102 0 $5.0000 $0.00 5826 - ELECTRONIC CHIP DEBIT SIT 350110 0 $4.0000 $0.00 5827 - ELECTRONIC CHIP DEBIT REPAIR 350541 0 $5.0000 $0.00 5886 - BOOK CREDIT 350320 0 $3.0000 $0.00 5887 - FED CREDIT SIT 350300 5 $4.0000 $20.00 5888 - FED CREDIT REPAIR 350330 0 $5.0000 $0.00 5889 -CHIPS CREDIT SIT 350300 0 54,0000 $0.00 5890 - CHIPS CREDIT REPAIR 350330 0 $5.0000 $0.00 Subtotal $39.00 Total Charge for Services $B181.69 Pro forma Notes, Assumptions & Disclaimers ' Volumes and Balances on this Pro Forma are estimated. Actual volumes and balances may be different. which vall result in different charges than are Specified above. Denotes Service is a one-time charge and will not appear on customer statement on a monthly basis Additional Pricing Detall TRANSACTION INITIATED 5590 Unit Price 1 0.0000 Ranged Volume Price 1-10.000 0.3000 10.001-25.000 0.2700 25,001-50,000 0.2500 50.001-75.000 0.2200 75,001+ 0.2000 MAINTENANCE - MULTI -CHANNEL 5730 Unit Price 0.0000 Flat Charge 1100.0000 MAINTENANCE -ACCOUNT STORAGE 5731 Unit Price 0.0000 Flat Char a 500.0000 ALERTS - PER ALERT 0191 Unit Price 0.0000 Tiered Volume Price 11+1 1.0000 EXHIBIT D INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. J.P. Morgan Chase Bank, N.A. Page D-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. J.P. Morgan Chase Bank, N.A. Page D-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own J.P. Morgan Chase Bank, N.A. Page D-3 judgment may be necessary for its proper protection and prosecution of the Work. J.P. Morgan Chase Bank, N.A. Page D-4 EXHIBIT B U.S. SELECT GOVERNMENT MERCHANT PROCESSING AGREEMENT Table of Contents U.S. SELECT GOVERNMENT MERCHANT PROCESSING AGREEMENT...................................................3 1. SERVICES; COMPLIANCE WITH APPLICABLE LAWS AND CARD NETWORK RULES................3 10. CHASENET AVAILABILITY.........................................................................................................................12 11. LIMITATIONS OF LIABILITY; DISCLAIMER OF WARRANTIES.......................................................12 12. MISCELLANEOUS...........................................................................................................................................12 U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 1 of 17 1.1 SERVICES......................................................................................................................................................3 1.2 COMPLIANCE WITH APPLICABLE LAWS AND CARD NETWORK RULES..........................................................3 1.3 CHASE PAY.........:.........................................................................................................................................4 2. AUTHORIZATION AND SETTLEMENT.......................................................................................................5 2.1 SUBMISSION OF DATA..................................................................................................................................5 2.2 AUTHORIZATIONS.........................................................................................................................................5 2.3 MERCHANT'S SETTLEMENT ACCOUNT.........................................................................................................5 2.4 TRANSFER OF SETTLEMENT FUNDS..............................................................................................................5 2.5 COLLECTION OF AMOUNTS DUE...................................................................................................................6 2.6 RESERVE ACCOUNT......................................................................................................................................6 3. ONLINE REPORTING.......................................................................................................................................7 4. FUTURE DELIVERABLES, INSTALLMENT SALES, AND DEFERRED PAYMENT; REFUNDS; CHARGEBACKLIABILITY.............................................................................................................................7 4.1 FUTURE DELIVERABLES...............................................................................................................................7 4.2 REFUNDS......................................................................................................................................................7 4.3 CHARGEBACK LIABILITY..............................................................................................................................7 5. FEES; ADJUSTMENTS......................................................................................................................................7 5.1 SCHEDULE A................................................................................................................................................7 5.2 PRICE ADJUSTMENTS....................................................................................................................................8 6. TERMINATION..................................................................................................................................................8 6.1 TERM............................................................................................................................................................8 6.2 EVENTS OF DEFAULT....................................................................................................................................8 6.3 OTHER TERMINATION EVENTS.....................................................................................................................8 6.4 BUDGET APPROPRIATIONS............................................................................................................................9 6.5 ACCOUNT ACTIVITY AFTER TERMINATION..................................................................................................9 7. INDEMNIFICATION..........................................................................................................................................9 8. CONFIDENTIAL INFORMATION; USE OF DATA; CARD INDUSTRY COMPLIANCE ......................9 8.1 CONFIDENTIALITY........................................................................................................................................9 8.2 USE OF DATA.............................................................................................................................................10 8.3 PAYMENT CARD INDUSTRY COMPLIANCE..................................................................................................11 8.4 ACCESS TO INFORMATION..........................................................................................................................11 9. INFORMATION ABOUT MERCHANT AND MERCHANT'S BUSINESS...............................................11 9.1 ADDITIONAL FINANCIAL INFORMATION.....................................................................................................1 1 9.2 OTHER INFORMATION................................................................................................................................. 12 10. CHASENET AVAILABILITY.........................................................................................................................12 11. LIMITATIONS OF LIABILITY; DISCLAIMER OF WARRANTIES.......................................................12 12. MISCELLANEOUS...........................................................................................................................................12 U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 1 of 17 12.1 TAXES........................................................................................................................................................ 12 12.2 SECTION HEADINGS....................................................................................................................................13 12.3 ASSIGNMENT; OTHER EVENTS....................................................................................................................13 12.4 PARTIES; INDEPENDENT CONTRACTOR.......................................................................................................13 12.5 REPRESENTATIONS.....................................................................................................................................13 12.6 PUBLICITY..................................................................................................................................................13 12.7 SEVERABILITY............................................................................................................................................13 12.8 WAIVERS....................................................................................................................................................13 12.9 ENTIRE AGREEMENT..................................................................................................................................14 12.10 NOTICES.....................................................................................................................................................14 12.11 GOVERNING LAW; WAIVER OF RIGHT TO CONTEST JURISDICTION; WAIVER OF JURY TRIAL ..................... 14 12.12 FORCE MAJEURE........................................................................................................................................14 12.13 AMENDMENT..............................................................................................................................................14 12.14 COUNTERPARTS AND ELECTRONIC SIGNATURE..........................................................................................14 12.15 MERCHANT TAXPAYER CERTIFICATION AND CMS REPORTING OBLIGATIONS..........................................14 13. SURVIVAL.........................................................................................................................................................15 14. DEFINITIONS....................................................................................................................................................15 SCHEDULEA: FEES.................................................................................................................................................18 SCHEDULE B: CERTAIN SPECIFIC CARD NETWORK REQUIREMENTS................................................22 U.S. Select Government INTERNAL PAYMENTECH USE Merchant Name: Rev. 1/26/201 2 of 17 CHASE! j JTMorgan U.S. SELECT GOVERNMENT MERCHANT PROCESSING AGREEMENT THIS U.S. SELECT GOVERNMENT MERCHANT PROCESSING AGREEMENT (the "Agreement") is entered into by and between JPMorgan Chase Bank, N.A., a national banking association ("Chase"), Paymentech, LLC, ("Paymentech") a Delaware limited liability company (Paymentech together with Chase, comprise Chase Merchant Services or "CMS"), and the City of Newport Beach, a California municipal corporation and charter city ("Merchant"). WHEREAS, Chase is a member of several Card Networks and CMS is authorized, through Chase, to process the Merchant's Transactions; and WHEREAS, Merchant wishes to accept Cards from its Customers as a method of payment for goods or services offered by Merchant; ACCORDINGLY, in consideration of the mutual promises made and the mutual benefits to be derived from this Agreement, CMS and Merchant agree to the following terms and conditions intending to be legally bound: 1. Services; Compliance with Applicable laws and Card Network Rules. 1.1 Services. CMS agrees to provide authorization, conveyance, settlement and related services with respect to Merchant's Transactions, together with those additional ancillary services identified or described in any schedule, addendum or amendment hereto (the "Services"). The parties acknowledge that the pricing set forth in this Agreement, and CMS' ability to provide the Services set forth herein is dependent upon satisfactory completion of a technical discovery process related to Merchant's specific technical implementation requirements. In the event that such process reveals any significant costs, expenses, development requirements or technical obstacles not currently known to CMS and which materially impact CMS' ability to implement and provide the Services for Merchant (or the cost to CMS of doing so), the parties agree to discuss such issues in good faith in an attempt to resolve such issues; provided, however, that in the event that such matters cannot be resolved in a manner satisfactory to CMS, CMS shall be entitled to terminate the Agreement with no further obligation hereunder. Except as otherwise agreed in writing between the parties, this Agreement shall apply only to Merchant's Transactions originating in the U.S. 1.2 Compliance with Applicable Laws and Card Network Rules. Merchant agrees to comply with all Card Network Rules for any Card accepted by Merchant, including, without limitation, those specific Card Network Rules required by the Card Networks to be included in every processing agreement which are set forth on Schedule B: Certain Specific Card Network Requirements attached hereto. Merchant shall not, through act or omission, cause CMS to violate any Card Network Rules. Merchant shall perform its obligations under this Agreement in compliance with all applicable federal, state and local laws and regulations and shall not submit any Transaction that it knows to be illegal. Merchant acknowledges receipt of the Chase Requirements and agrees to abide by the Chase Requirements with respect to all Chase Transactions. CMS reserves the right to refuse to process any Transaction prepared in violation of any provision of this Agreement, applicable law, or the Card Network Rules. . Merchant agrees to pay any and all fines, fees, penalties, liabilities, charges and other amounts which may be imposed or assessed by the Card Networks on Merchant or CMS as a result of Merchant's actions, omissions, Transactions or Chargebacks, including without limitation, Merchant's failure to comply with the Card Network Rules, Chase Requirements, this Agreement or Security Standards (the "Card Network Liabilities"). CMS shall provide Merchant with prompt written notification of any Card Network Liabilities of which it receives notification from the Card Networks. In the event that Merchant desires to contest or appeal any such Card Network Liabilities, and such contest or appeal is permitted under the applicable Card Network Rules, CMS shall reasonably assist and cooperate with Merchant, and reasonably advocate on Merchant's behalf, in connection with such contest or appeal, provided, however, that Merchant shall be responsible for the payment of any appeal fees or other direct costs associated therewith. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 3 of 17 1.3 Chase Pay If CMS makes Chase Pay available to Merchant and Merchant decides to implement Chase Pay, then the terms of this Section shall apply to the Parties: (a) Support. Merchant and CMS shall integrate, implement and support Chase Pay, and accept Chase Pay Transactions: (i) at Merchant's retail Points -of -Sale (via the Chase Pay Application and/or the Merchant Application, if any), (ii) within the Merchant Application (if any), or (iii) on any of Merchant's online or mobile ecommerce website(s) (via the Chase Pay "button"). (b) Technical and Security Requirements. CMS will provide or make available to Merchant all technical specifications and requirements (including, but not limited to, all required software development kits ("SDKs")) and security requirements (including, without limitation, Chase's authentication requirements for any Merchant mobile-application(s) in which Chase Pay is enabled), and Merchant shall comply with such specifications and requirements in connection with the development, testing, enablement, operational ization, and processing of Chase Pay Transactions. To the extent Merchant utilizes any fraud screening or prevention technologies, tools or other measures with respect to its Transactions, Merchant agrees to utilize the same technologies, tools or measures for its Chase Pay Transactions (to the extent such technologies, tools or measures can be reasonably applied to Chase Pay Transactions). (c) Acceptance Technologies. Except as may otherwise be agreed between the parties, CMS shall provide or license (or sublicense) to Merchant, and Merchant shall use, the Acceptance Technologies in connection with acceptance of Chase Pay Transactions at the Point of Sale. Without limiting the generality of the immediately preceding sentence, Merchant represents, warrants and covenants that when processing Chase Pay Transactions at a Point of Sale, (i) any data or information (including, without limitation, Card Information and other payment credentials) captured, obtained or processed by Merchant from or through the Acceptance Technologies in connection with a Chase Pay Transaction will pass through Merchant's systems only on a transitory basis and will not be retained, stored, copied, or saved (including on any backup system or server's random access memory memory), and (ii) Merchant will not (and will not attempt to) reverse engineer, encrypt or decrypt, reveal, convert to readable form or otherwise access any information or data captured from or during transmission by or through the Acceptance Technologies other than as expressly permitted by the applicable Acceptance Technologies specifications; provided, however, that the foregoing shall not prevent Merchant from receiving, utilizing, retaining, storing and/or saving any payment tokens or other Chase Pay Transaction Data which CMS may provide to Merchant separately and apart from its use of the Acceptance Technologies for use in connection with the processing of post -transaction activity (e.g. refunds, recurring billing, etc.). If the applicable Acceptance Technology is licensed by CMS from a third party, then the applicable Acceptance Technologies may include pass-through sublicense terms that Merchant must comply with. The Acceptance Technologies provided by CMS to Merchant may be updated from time to time, and Merchant will implement each such update communicated by CMS to Merchant within six (6) months of the update being received by Merchant, or such shorter time as CMS may require in its commercially reasonable discretion if necessary to address a third party claim of intellectual property infringement or to remediate a significant security, interoperability, or functional defect. (d) Intellectual Property and Trademarks. CMS and its respective licensors will retain ownership of all of their trademarks, service marks and logos, and SDKs, application program interfaces ("APIs") and other technology developed, acquired or licensed by any of them (other than any SDKs, APIs or technology licensed to CMS by Merchant or its affiliate under this Agreement), and all derivative works thereof and all related intellectual property rights therein (collectively "Chase IP"). Except for any license expressly provided in this Agreement, nothing in this Agreement grants or transfers to Merchant any rights in Chase IP. No party will use any other party's trademarks or service marks in any marketing materials without the other party's prior written approval, and a party may withdraw any such approval(s) by giving the other party reasonable prior notice of the same. Any party's use of the other party's trademarks under this Agreement shall be limited to the approved use, for the marketing, promotion, and administration of the acceptance of Chase Transactions, and in compliance with such other party's current brand guidelines, as the same may be provided by each party to the other from time to time. Notwithstanding the foregoing, Chase shall be entitled to identify Merchant by name as a Chase Pay acceptor, and specify Merchant locations accepting Chase Pay (by address or otherwise), including, without limitation within a directory of Chase Pay acceptors, on a map displaying each location) within the Chase Application or on Chase's website. INTERNAL PAYMENTECH USE Merchant Name: U.S. Select Government Merchant Processing Agreement - Rev. 1/26/20 4 of 17 (e) Non -Discrimination and Complaints. Merchant agrees that it will not in any way discourage Chase Pay usage or discriminate against or disadvantage Chase Pay or Chase Pay Transactions (relative to customers using, or Transactions involving, other payment methods), including, without limitation, by excluding them from receiving or participating in any discounts, rebates, savings, offers, incentives, or loyalty program benefits, points or rewards, which may offered by Merchant to its Customers using other methods of payment. Merchant will reasonably notify CMS of any material issues or complaints of Chase Customers related to the acceptance of Chase Pay Transactions at Merchant and to address any such issues that require such cooperation to resolve. Merchant shall cooperate reasonably (such cooperation including, but not limited to, making any requested or required changes) with any CMS inquiry or concern regarding Merchant's or CMS' compliance with any applicable law with respect to this Agreement. 2. Authorization and Settlement. 2.1 Submission of Data Merchant shall submit all of its Transactions to CMS electronically in accordance with CMS' standard protocols, specifications, formats and procedures for the creation and transmission of data to CMS. CMS shall not be liable or responsible for (i) the authenticity, or accuracy, of transaction data received from Merchant, or (ii) the corruption, loss, alteration, theft, or destruction of Transactions or Transaction data, during transmission of such data to CMS (by Merchant or its service provider), and CMS shall be entitled to rely on data received from or on behalf of Merchant in the discharge of its obligations hereunder. 2.2 Authorizations. Merchant shall obtain an authorization code through CMS for each Transaction and CMS reserves the right to refuse to process any Transaction presented by Merchant unless it includes a proper authorization. Merchant acknowledges that authorization of a Transaction does not constitute a representation from CMS, a Card Network, or a card issuing bank that a particular Transaction is in fact valid or undisputed. 2.3 Merchant's Settlement Account. Merchant shall designate and maintain one or more accounts to be used exclusively for business purposes and that are capable of receiving ACH or wire transfers and that permits CMS to debit and credit such account for amounts due under this Agreement (collectively referred to as "Settlement Account"). During the term of this Agreement, and for 180 days thereafter or such longer period of time as CMS may notify Merchant is reasonably required for the payments of amounts due under this Agreement. Merchant shall not close or revoke its consent to debit its Settlement Account without giving CMS at least five (5) business days' prior written notice and designating another Settlement Account. Merchant shall be liable for all fees, costs, and overdrafts associated with the Settlement Account. Merchant authorizes CMS or its authorized agent(s) to initiate electronic credit and debit entries (via ACH, wire transfer, or other means) to the Settlement Account, or to any other bank account designated by Merchant in writing, at any time and from time to time, for amounts due under this Agreement, without regard to the source of any monies therein, and this authority will remain in full force and effect until all amounts which are or may reasonably become due from Merchant under this Agreement have been paid in full. 2.4 Transfer of Settlement Funds. CMS shall submit Merchant's Transactions to the applicable Card Network. Promptly after CMS receives funds for Merchant's Transactions from the applicable Card Network, CMS will fund the Settlement Account. Transactions received after the established cutoff time will be combined with the next business day's transactions. CMS will not be liable for any delays in receipt of funds or errors in Settlement Account entries caused by third parties, including, without limitation, delays or errors by the Card Networks or Merchant's bank. The funds payable to Merchant in this Section shall be equal to the total Transaction amounts minus the sum of the following: (a) all fees, charges, and other amounts described on Schedule A or that Merchant has otherwise agreed to pay; (b) all Chargebacks and Refunds; (c) any required Reserve Account amounts; (d) any Card Network Liabilities. Merchant agrees that all fees and other amounts are due and payable at the time the Services are performed or such fees or amounts are incurred. In the event CMS does not deduct any such amounts from Merchant's proceeds when such amounts first become due and payable, CMS may collect such amounts in any manner set forth for the collection of amounts due, as set forth in this Agreement._Furthermore, Merchant agrees to reimburse Paymentech, Member, the Card Network, and their respective affiliates, officers, directors, employees, agents, and sponsoring banks from any U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Pageo17 losses, liabilities, and damages of any and every kind (including, without limitation, Paymentech's costs, expenses, and reasonable attorneys' fees) arising out of any claim, complaint, or Chargeback (a) made or claimed by a Customer with respect to any Transaction or Transaction data submitted by Merchant; (b) caused by Merchant's noncompliance with this Agreement or the Card Network Rules (including without limitation any breach of a representation or warranty made by Merchant or Merchant's failure to comply with the Security Standards); (c) resulting from any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; or (d) related to Merchant's placement or the placement of any person owning or controlling Merchant's business in one or more databases of terminated or high risk merchants maintained by the Card Networks. The obligations provided for in this Section shall survive termination of this Agreement and do not apply to any claim or complaint to the extent they are caused by Paymentech's own negligence or willful misconduct. 2.5 Collection of Amounts Due. In addition to any other rights and remedies CMS may have under this Agreement, CMS may pursue one or more of the following options with respect to amounts due under this Agreement: (a) withhold all or some of Merchant's settlement funds (or any other funds that would otherwise be payable by CMS to Merchant) and apply them against the amounts due. (b) debit the Settlement Account for the amounts due; (c) request and receive prompt payment for such amounts; and (d) apply funds held in any existing Reserve Account against the amounts due. 2.6 Reserve Account. If: (a) Merchant begins accepting payment in advance of the shipment of goods or fulfillment of services, or materially increases the amount of time between Merchant's acceptance of payment and the anticipated shipment or delivery of goods or fulfillment of services; (b) Merchant receives a number of Chargebacks in excess of 1% of its total number of Transactions over a period of sixty (60) or more consecutive days, or CMS is notified by any Card Network of Merchant's inclusion in any chargeback monitoring or similar risk-based program, or of any Card Network Liabilities to be assessed as a result of Merchant's Chargebacks; (c) CMS has received notification from any Card Network(s) or has otherwise become aware of any material violation of the Card Network Rule(s), causing CMS to believe that it is reasonably likely to be subject to Card Network Liabilities; (d) either party provides notification of non -renewal or termination of this Agreement, or this Agreement is terminated for any reason; or (e) required by CMS, and communicated to Merchant in writing prior to the execution of this Agreement, as a condition of CMS' entering into this Agreement and communicated in writing to Merchant; they] CMS may designate an amount of funds that shall be funded by Merchant and maintained by CMS to protect CMS against the reasonably anticipated risk associated with Merchant's account (such funds being hereinafter referred to as the "Reserve Account"). Any required Reserve Account shall be due upon request, and may be collected by CMS in any manner provided in this Agreement for the collection of amounts due. The amount of such Reserve Account shall not exceed the sum of (i) one month's average fees including without limitation, processing fees, interchange assessments and third -party fees collected by CMS; plus (ii) one month's average monthly Chargebacks multiplied by six; plus (iii) one month's average monthly Refunds multiplied by two; plus (iv) the aggregate value of Transactions, if any, submitted by Merchant to CMS with respect to goods and/or services not yet delivered to Customers; plus (v) the amount of any Card Network Liabilities reasonably anticipated by CMS. For purposes of this calculation, each monthly average shall be calculated over the immediately preceding consecutive twelve (12) month period (or, if CMS has not yet been processing for Merchant for twelve (12) consecutive months, such shorter period of time as CMS may have been processing for Merchant or the parties may otherwise agree). CMS may (but is not required to) apply funds in the Reserve Account toward, and set off any funds that would otherwise be payable by CMS to Merchant against, the satisfaction of any amounts due from Merchant pursuant to this Agreement. Funds in the Reserve Account will be held and controlled by CMS, will not bear interest, and may be commingled with other funds, (but will be accounted for separately). Merchant shall have no interest in the Reserve Account other than a contingent right to receive funds, as set forth below. Reserve Accounts (and CMS' right to require a Reserve Account U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 6 of 17 after termination of this Agreement as set forth above) shall survive termination of the Agreement. Upon satisfaction of all of Merchant's reasonably anticipated obligations under this Agreement and the expiration of the applicable timeframes for Chargebacks (as set by the various Card Networks), CMS will return to Merchant any unused funds remaining in the Reserve Account. In addition, upon Merchant's request from time to time, but in no event more than once per month, CMS will review the risk associated with Merchant's account and as needed adjust the amount currently held in the Reserve Account and return to Merchant any funds in the Reserve Account which CMS no longer believes to be reasonably necessary to cover the remaining risk. 3. Online Reporting. CMS will provide online access to reporting reflecting the activity of Merchant's account(s) and allowing Merchant to generate detailed statements of such activity. Merchant agrees that it has responsibility to monitor its account activity and that it waives all claims against CMS for any errors that are not reported to CMS within 180 days from the posting of the activity in Merchant's online account report. 4. Future Deliverables, Installment Sales, and Deferred Payment; Refunds; Chargeback Liability. 4.1 Future Deliverables. Unless Merchant has notified CMS on its Application or CMS has otherwise agreed in writing in advance, Merchant shall not submit Transactions to CMS (including in connection with any installment sales or deferred payment plans) until (i) the goods are delivered or shipped or (ii) the services are performed. The foregoing restriction applies to installment sales, deferred payment plans and recurring transactions, 4.2 Refunds. To the extent required by the Card Network rules, Merchant shall maintain a written policy with regards to Refunds and shall disclose or make available such policy to its customers. Upon request, Merchant shall make such policy available to CMS. Merchant shall not accept any payment from a Customer as consideration for issuing a Refund. Except to the extent permitted by the Card Network Rules or expressly required by applicable law, Merchant shall not give cash (or cash equivalent) refunds to a Customer in connection with a prior Transaction. Unless otherwise required by the Chase Requirements or Card Network rules, any Refunds shall be prepared and submitted to CMS within three (3) days of Merchant's approval of Customer's request for such Refund. Merchant has liability for all Refunds it submits or submitted by its representatives. Merchant shall have liability for all Refunds submitted by Merchant, its employees, agents or representatives. In addition, Merchant shall have liability for Refunds submitted by third parties using Merchant's identification number without Merchant's authorization, except where such third party obtained Merchant's identification number as a result of the negligence of CMS. 4.3 Chargeback Liability. Merchant shall have full liability for all Chargebacks assessed to CMS in accordance with the applicable Card Network Rules; provided, however, that (i) in the event that any Chargeback is ultimately reversed in favor of Merchant, CMS shall refund Merchant for the amount thereof, and (ii) Merchant shall not be liable for Chargebacks resulting from consumer -initiated, fraudulent Chase Pay Transactions made at Merchant except to the extent that Merchant or any of its employees, affiliates, agents, vendors or Service Providers is complicit in the fraudulent activity. For purposes of the foregoing, consumer -initiated fraudulent Chase Pay Transactions means sales that are initiated through activities such as the unauthorized use of a lost/stolen mobile device or other unauthorized use of a Chase Card to process a Chase Pay Transaction at Merchant. Merchant shall use reasonable efforts to provide CMS with all necessary data relating to the investigation and management of the fraud that is reasonably requested by CMS (such data to be used by CMS for fraud protection and prevention purposes only). 5. Fees; Adjustments. 5.1 Schedule A. Merchant shall pay all fees and amounts (e.g. interchange and assessments) set forth on Schedule A. Unless otherwise indicated on Schedule A, Merchant shall be solely responsible for all communication expenses required to transmit Transactions to CMS. For each file or batch submitted by Merchant, CMS will group the Transaction data by Transaction characteristics, including, without limitation, type of Transaction, method of payment, and interchange U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: P7e7.f17 qualification category. For each such group, CMS will calculate the applicable fees to two decimal places. The fees for each will be rounded to the nearest full cent using conventional mathematical rounding logic for currency. 5.2 Price Adjustments. Fees set forth in this Agreement are based upon Merchant's annual volume, average Transaction size, as set forth in Schedule A, or in any amendment to this Agreement, and other information provided by Merchant. To the extent any of the foregoing proves to be materially inaccurate, CMS may modify Merchant's pricing set forth in this Agreement upon thirty (30) days' prior written notice; provided, however, that in such event, Merchant shall be entitled to terminate this Agreement by providing CMS with notice of termination no later than 180 days after Merchant's receipt of notification of such increase. In addition, Merchant's fees may be adjusted to reflect (i) increases by Card Networks in interchange, assessments, (ii) other Card Network fees, additional fees imposed by the Card Networks, or (iii) increases in third party fees identified in this Agreement, Schedule A or as otherwise agreed by the parties in writing. Merchant shall pay all such fees, as so adjusted. Each such adjustment shall become effective upon the date the corresponding increase or additional fee is implemented by the Card Network or third party provider. 6. Termination. 6.1 Term. This Agreement takes effect upon the date on which it first becomes signed by all parties hereto (i.e. the date on which the last party to the Agreement signs), and continues for three (3) years from such date. Unless otherwise terminated by either party as provided in this Agreement, this Agreement will automatically renew for successive one- year terms. Either party may give notice of non -renewal of this Agreement in writing no more than ninety (90) days and no less than thirty (30) days prior to any expiration date. 6.2 Events of Default. In the event that either party fails in any material respect to comply with any provision, term, warranty, condition, covenant, or agreement contained in this Agreement, including, without limitation, the Card Network Rules and Security Standards, or any representation in this Agreement is or was false or incorrect in any material respect when made (any such event, an "Event of Default"), and such party fails to cure such Event of Default within thirty (30) days of its receipt of written notification from the non -defaulting party specifying such Event of Default, then the non -defaulting party shall be entitled to terminate this Agreement upon written notice of termination; provided, however, that no cure period shall be allowed, and CMS shall be entitled to terminate this Agreement immediately, in the event that Merchant fails in any material respect to perform any of its obligations with respect to the funding or establishing of a Reserve Account, as detailed in Section 2.6 above. 6.3 Other Termination Events. In addition, CMS shall be entitled to terminate this Agreement immediately upon written notice to Merchant in the event of any of the following: (a) Merchant is placed in any Chargeback monitoring or similar risk-based program designated by any Card Network for merchants with high levels of Chargebacks or presenting high levels of risk, and are not removed from such program by the applicable Card Network within 90 days; (b) CMS reasonably determines Merchant, based on its financial statements, payment record with creditors, and other relevant factors, to be financially insecure and unlikely to be able to meet its obligations under this Agreement; (c) any Card Network: (i) notifies CMS or Chase that it is no longer willing to accept Merchant's Transactions; (ii) requires CMS or Chase to terminate or limit this Agreement or Merchant's ability to accept Cards; or (iii) imposes unduly burdensome, costly or impractical conditions or requirements relating to Merchant or Merchant's transactions; (d) a party or any individual entity or organization holding any material ownership interest in such party or any officer or director of such party, is determined at any time to be an individual, entity, or organization (i) with whom the other parties are prohibited from dealing by any United States law, regulation or executive order, including names appearing on the U.S. Department of Treasury's Office of Foreign Asset Control's Specially Designated Nationals and Blocked Persons List, or (ii) that is listed in one or more databases of terminated or high risk merchants maintained by the Card Networks; U.S Select Government Merchant Processing Agreement - Rev. INTERNAL PAYMENTECH USE Merchant Name: n„ 8of17 (e) Merchant (i) ceases to exist (other than as a result of a permitted assignment or sale by such party) or to conduct its normal and customary business operations; (ii) becomes involved in a material violation of applicable law or other domestic or foreign law or regulation, (iii) engages in bribery, fraud, money laundering or corruption, (iv) is convicted of or pleads no contest to a felony charge, or (v) otherwise becomes the subject of public disrepute, contempt, or scandal that CMS reasonably determines may cause a material adverse impact on the reputation and goodwill of CMS or any Card Network, regardless of whether such controversy relates to this Agreement; (f) Merchant is in material breach or default of any term, condition, covenant, representation, or warranty contained in any credit facility, loan document or other agreement between Merchant and Chase or any affiliate of Chase (and such breach is not cured in any applicable cure period provided in such document); or (g) Merchant does not transmit Transactions to CMS for a period of more than 180 consecutive days. 6.4 Budget Appropriations. Upon thirty (30) days written notice, Merchant, if it is a government entity, may terminate this Agreement in the event that funds are not appropriated/allocated by Merchant for the expenses associated with credit card processing for any fiscal year. However, Merchant will continue to be responsible for any liabilities, commitments or obligations arising from payment transactions processed pursuant to this Agreement prior to the effective date of termination. 6.5 Account Activity After Termination. After termination of this Agreement, Merchant shall continue to be liable for Chargebacks, Refunds, fees, Card Network Liabilities, credits, and adjustments resulting from or relating to Transactions processed pursuant to this Agreement. If Merchant submits Transactions to CMS after the date of termination, CMS may, but is not required to process such Transactions in accordance with and subject to all of the terms of this Agreement. 7. Indemnification. CMS agrees to indemnify and hold harmless Merchant and its affiliates, officers, directors, employees, and agents from any losses, liabilities, and damages of any and every kind (including, without limitation, Merchant's costs, expenses, and reasonable attorneys' fees) arising out of any third party claim or complaint relating to: (a) CMS' noncompliance with Card Network Rules or the Security Standards, or (b) a Data Compromise Event of CMS or its Service Providers; (c) any voluntary or involuntary bankruptcy or insolvency proceeding by or against CMS; or (d) CMS' violation of applicable federal, state and local laws and regulations. This indemnification does not apply to any claim or complaint to the extent caused by Merchant's sole negligence, recklessness or willful misconduct. The indemnification provided under this Section shall survive termination and is subject to the limitation of liability set forth in Section 11 of this Agreement. 8. Confidential Information; Use of Data; Card Industry Compliance. 8.1 Confidentiality. (a) Each party has made and will continue to make available to the other party information that is not generally known to the public and at the time of disclosure is identified as, or would reasonably be understood by the receiving party to be, proprietary or confidential ("Confidential Information"). Confidential Information may be disclosed in oral, written, visual, electronic or other form. Information meeting the definition of Confidential Information that is disclosed by a party during the term of this Agreement and that is not otherwise subject to a separate nondisclosure agreement between the parties will be considered Confidential Information, even if the information is unrelated to this Agreement or the Services to be provided hereunder. Each party's Confidential Information includes its: (i) business plans, strategies, forecasts, projects and analyses; (ii) financial information and fee structures (including CMS' pricing and pricing proposals); (iii) business processes, methods and models; (iv) employee, customer, dealer, business partner and supplier information; (v) hardware and system designs, architectures, structure and protocols; (vi) product and service specifications and (vii) the terms of this Agreement. The following information shall be deemed the Confidential Information of CMS (i) any SOC1 (Disclosure of Service Organization Control Report No. 1), SSAE-16 or SSAE-18 (Statement on Standards for Attestation Engagements No. 16 or No. 18) report provided by CMS; (ii) any attestation of compliance or similar letter or report provided by CMS with respect to its compliance with the Security Standards; (iii) any data and information (including data analytics and attribution data) about U.S. Select Government Merchant Prnceaemn Aore—nt _ R— tnuont R, av INTERNAL PAYMENTECH USE Merchant Name: Page 9 of 17 Chase Customers provided to Merchant by CMS or any of its affiliates; (iv) Card Information associated with a Chase Card or Chase Customer, and (v) the fact that any Customer(s) is/are a Chase Customer. For Transactions that are processed under this Agreement, information (other than Card Information associated with a Chase Card) that is customarily part of the payment transaction (e.g., transaction date and amount) may be utilized by each of the parties subject to the Security Standards, Card Network and Chase Requirements, as applicable, and shall not be deemed the Confidential Information of any party. (b) Except as otherwise permitted under this Agreement or with the prior written consent of the disclosing party, the receiving party will not disclose, transmit or otherwise disseminate in any manner whatsoever any Confidential Information of the disclosing party to any third party. The receiving party will use the same care and discretion to avoid disclosure, publication or dissemination of any Confidential Information received from the disclosing party as the receiving party uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care). CMS may disclose Merchant's Confidential Information: (i) to the Card Networks in connection with the processing of Transactions and the provision of ancillary services (including services made available directly through the Card Networks such as Address Verification and Account Updater, if used by Merchant) and activity for which such disclosure is otherwise required (e.g., Retrieval Requests, Chargeback adjudication, fraud detection and prevention); (ii) to its or its subcontractors' employees, consultants or agents for the purpose of performing its obligations under this Agreement and only to those who are obligated to maintain the confidentiality of Merchant's Confidential Information upon terms similar to those contained in this Agreement; and (iii) as may be necessary by reason of legal, accounting or regulatory requirements. (c) The obligations set forth in this Section do not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed prior to disclosure by the disclosing party, without an obligation of confidentiality; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its Affiliates. Either party may disclose the terms of this Agreement to potential parties to acquisition, divestiture or similar transactions to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non -disclosure obligations and limitations on use only for the prospective or closed transaction, each party to that transaction using commercially reasonable efforts to limit the extent of the disclosure. (d) If the receiving party is legally required to disclose any Confidential Information of the disclosing party in connection with any legal or regulatory proceeding, the receiving party will, if lawfully permitted to do so, endeavor to notify the disclosing party within a reasonable time prior to disclosure and to allow the disclosing party a reasonable opportunity to seek appropriate protective measures or other remedies prior to disclosure and/or waive compliance with the terms of this Agreement. If these protective measures or other remedies are not obtained, or the disclosing party waives compliance with the terms of this Agreement, the receiving party may disclose only that portion of that Confidential Information that it is, according to the opinion of counsel, legally required to disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to that Confidential Information. However, nothing contained in this Agreement will restrict CMS' ability to disclose Merchant's Confidential Information to regulatory or governmental bodies asserting jurisdiction over CMS or its affiliates. 8.2 Use of Data. Certain Merchant Confidential Information, including without limitation, financial information, information related to Merchant's Transactions, and other information that Merchant provides to CMS may be shared by CMS with its affiliates and the Card Networks. CMS may also share and exchange such information with any Referral Partner (as defined below), as reasonably necessary to administer any referral or similar program between Referral Partner and CMS. This may include the sharing or exchanging of Merchant information for the purposes of calculating any referral fees payable in connection with, and otherwise implementing and maintaining such program, and, in some cases, servicing and managing Merchant's account. The information that may be shared or otherwise exchanged may include Merchant's name, identification/account number, transaction volume, card summary, status with CMS (e.g. the existence and terms of this Agreement, whether Merchant's application was accepted or declined, and whether this Agreement has terminated or expired), Merchant's status with Referral Partner (e.g. membership or participation in any Referral Partner organization or program), and such other information that is reasonably necessary for the U.S. Select Government Merchant Processing Agreement - Rev. INTERNAL PAYMENTECH USE Merchant Name: p„ 10 of 17 purposes described above. Merchant understands and agrees that CMS shall not be responsible for Referral Partner's subsequent use or disclosure of such information. Except as otherwise agreed by the parties in writing, CMS shall not otherwise use or disclose such information other than, (a) as necessary to process Merchant's Transactions or otherwise provide services and maintain Merchant's account pursuant to this Agreement, (b) for CMS' internal and operational purposes; (c) to monitor, detect, prevent, reduce, or otherwise address fraud, risk, security, or technical issues; (d) to enhance or improve CMS' products and services generally, or (d) as required or permitted by the Card Networks or applicable law. CMS may use and/or share with third parties information derived from Transactions provided that it is either aggregated or de -identified (meaning that reasonable steps have been taken to ensure that the information does not identify Merchant and does not identify any individual person). 8.3 Payment Card Industry Compliance. (a) Each party agrees to comply with all applicable Security Standards. (b) Merchant further agrees to provide CMS, upon its request, with such tests, scans, and assessments of Merchant's compliance with Security Standards as may from time to time be required by the Card Network Rules in order for CMS to confirm or validate Merchant's compliance with the Security Standards. (c) Merchant understands that its or its Service Providers failure to comply with the Card Network Rules, including the Security Standards, may result in Card Network Liabilities for which Merchant shall be responsible. (d) Merchant shall immediately notify CMS of its use of any Service Provider(s), and Merchant is responsible for ensuring that any and all Service Providers and third -party payment software or applications used by Merchant to transmit, store or process Card Information, are compliant with all applicable Security Standards and appropriately registered with, or otherwise recognized as being compliant with the Security Standards, by all applicable Card Networks. (e) If a forensic examination of Merchant or any of Merchant's Service Providers is required pursuant to the Card Network Rules, Merchant agrees to engage an approved PCI Forensic Investigator ("PFI") (a list of which is available from the PCI Council), and cause such forensic examination to be completed within the timeframe required by the Card Network Rules, and cooperate with the PFI in connection therewith. Notwithstanding the foregoing, the Card Networks may directly engage, or demand that CMS engage, an examiner on behalf of the Merchant in order to expedite the investigation of a suspected Data Compromise Event, and/or may require CMS to investigate such Data Compromise Event. Merchant agrees to pay for all costs and expenses related to any required forensic examination and all liabilities associated with any Data Compromise Event. Furthermore, if Merchant is undergoing a forensic investigation at the time this Agreement is executed, Merchant shall fully cooperate with the investigation and agrees to continue so cooperating until the investigation is completed. 8.4 Access to Information. Merchant shall be responsible for ensuring that only employees and representatives with a need to know shall have access to Card Information. Merchant may, from time to time, designate certain employees or representatives for which CMS shall provide access (via login credentials or otherwise) to Merchant reporting, which may include access to Card Information. Merchant shall be responsible for any unauthorized access to such information or any unauthorized transactions submitted, utilizing the login credentials of Merchant's employees and representatives. In the event that any employee or other representative previously designated by Merchant to CMS for purposes of allowing such access, Merchant agrees to notify CMS promptly in the event such representative ceases to be employed by or associated with Merchant, or otherwise no longer has a reasonable business need to retain such access. 9. Information About Merchant and Merchant's Business. 9.1 Additional Financial Information. Upon five (5) business days' written notice, Merchant agrees to furnish to CMS (i) complete audited financial statements of Merchant (or such lesser format financial statements of Merchant as CMS may agree to accept) from the most recently completed fiscal year if such request occurs more than 120 days after the end of such fiscal year, and otherwise from the fiscal year immediately prior thereto, and (ii) its most recently prepared interim financial statements. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 11 of 17 9.2 Other Information. Merchant agrees to provide CMS at least thirty (30) days' prior written notice of: (i) any significant changes to the nature of its business, product lines or services, (ii) Merchant beginning to accept payment in advance of the shipment of goods or fulfillment of services, or materially increasing the amount of time between acceptance of payment and the anticipated delivery or shipment of goods or fulfillment of services, (iii) any sale of all or substantially all of the assets of Merchant, or (iv) any person or entity becoming the beneficial owner, directly or indirectly, of securities representing more than fifty percent (50%) of the combined voting power of Merchant's securities, or otherwise acquiring voting control of Merchant. If CMS determines such a change is material to its relationship with Merchant, CMS may refuse to process Transactions made subsequent to the change or terminate this Agreement. Merchant agrees to provide CMS with prompt written notice if Merchant is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. 10. ChaseNet Availability. CMS reserves the right to suspend or discontinue the processing of Merchant's eligible Transactions as Chase Transactions in the event Chase's agreement with Visa, Inc. which provides for CMS' ability to process Chase Transactions should expire or terminate for any reason, in which case Transactions involving Eligible Chase Cards (i.e. Transactions which would otherwise have been processed as Chase Transactions and/or Chase Pay Transactions) shall be processed as regular Visa Transactions subject to Visa pricing as set forth on Schedule A and normal Visa interchange rates; provided, however, that CMS shall provide at least 60 days' prior written notice of such event where CMS is reasonably able to do so (or such shorter period of notice as CMS may otherwise be reasonably able to provide). 11. Limitations of Liability; Disclaimer of Warranties. Under no circumstances will CMS' collective financial liabilities arising out of or related to this Agreement exceed the total fees paid to CMS under this Agreement (net of Card Network and other third party fees including, without limitation, Interchange, assessments, and Card Network Liabilities) for the six months prior to the time the liability arose; provided, however, that such limitation shall not apply with respect to CMS' indemnity obligations with respect to a Data Compromise Event pursuant to Section 7.1(b). EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL ANY PARTY, ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CARD NETWORK LIABILITIES SHALL BE DEEMED TO BE DIRECT DAMAGES. ALL PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR COMMERCIAL SERVICES. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY AND CMS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, MADE TO MERCHANT OR ANY OTHER PERSON, REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (REGARDLESS OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OF ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY GOODS PROVIDED INCIDENTAL TO SUCH SERVICES. 12. Miscellaneous. 12.1 Taxes. The fees described in this Agreement are exclusive of all taxes. Unless Merchant is otherwise exempt, and, if applicable, provides a valid exemption certificate, Merchant agrees to pay all applicable taxes and similar charges however designated (other than taxes assessed on CMS' net income) including sales, use, property, lease, excise, goods and services, value added, gross receipts and like taxes (Taxes) which are imposed by any governmental authority on the Services, equipment, supplies, software, intellectual property and other goods provided under this Agreement. Merchant also agrees to pay any Taxes imposed on interchange, assessments or other third party fees collected by CMS pursuant to this Agreement. Merchant authorizes CMS to increase the amount collected from Merchant to reflect any and all such Taxes and any assessments or increases in the Taxes imposed on such sale or lease of the Services, equipment, supplies, software, intellectual property and other goods provided under this Agreement. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 12 of 17 12.2 Section Headings. The section headings of this Agreement are for convenience only and do not define, limit, or describe the scope or intent of this Agreement. 12.3 Assignment; Other Events. (a) CMS may not transfer or assign this Agreement, in whole or in part, without the prior written consent of Merchant, not to be unreasonably withheld, except that such prior written consent shall not be required in connection with: (i) the transfer of all or substantially all of the merchant acquiring business of CMS (whether by merger, stock sale, asset sale or otherwise); (ii) an internal reorganization resulting in an assignment or transfer to an affiliate of CMS; or (iii) as permitted under the Card Network rules, the substitution of another Card Network member for Chase, as the member bank under whose sponsorship the Services are provided. (b) Merchant may not transfer or assign this Agreement without the prior written consent of CMS, not to be unreasonably withheld subject to CMS' standard credit and risk underwriting policies and procedures (which shall in no event be deemed unreasonable). 12.4 Parties; Independent Contractor. This Agreement is binding upon and inures to the benefit of the parties and their respective heirs, administrators, representatives, and permitted successors and assigns. Merchant agrees that it is responsible for its employees' and Service Provider's actions. In providing services to Merchant, CMS will not be acting in the capacity of agent, partner, or joint venturer; CMS is acting solely as an independent contractor. 12.5 Representations. (a) Merchant represents and warrants that all written information that it has or will submit to CMS, including without limitation statements made on its Application and any subsequent addendums, are true, complete and not misleading as of the date the statements were or will be made. Merchant further represents and warrants that only its authorized representatives will submit written information to CMS. (b) CMS and Merchant each represent and warrant that its execution of and performance under this Agreement (i) in no way breaches, contravenes, violates, or in any manner conflicts with any of its other legal obligations, including, without limitation, its corporate charter or similar document or any agreement with any third party or affiliated entity; (ii) has been duly authorized by all necessary action and does not require any consent or other action by or in respect of any third party; and (iii) that the person signing this Agreement is duly authorized to do so. 12.6 Publicity. Except to the extent required by applicable law, neither party shall make press releases or similar public statements regarding the business relationship that is the subject of this Agreement, without the prior written consent of the other. Neither party shall use the other party's name or trademarks, except as otherwise provided in this Agreement, without the other party's prior written permission. 12.7 Severability. Should any provision of this Agreement be determined to be invalid or unenforceable under any applicable law, rule, regulation, or Card Network Rule, such determination will not affect the validity or enforceability of any other provision of this Agreement 12.8 Waivers. No term or condition of this Agreement may be waived, and failure by either party to enforce any terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or of the future performance of any such term or condition, except pursuant to a written waiver executed by the party against whom such waiver is sought to be enforced. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018df INTERNAL PAYMENTECH USE Merchant Name: P7�13of 17 12.9 Entire Agreement. The Application, taxpayer identification and certification documentation, and all schedules, supplements, exhibits and attachments to this Agreement are made a part of this Agreement for all purposes. This Agreement represents the entire understanding between Merchant and CMS with respect to the matters contained herein and supersedes any prior agreements between the parties. Merchant agrees that in entering into this Agreement it has not relied on any statement of CMS or its representatives. This Agreement shall prevail over any conflicting terms of any agreement governing the Settlement Account.. In the event that any of the terms and conditions of this Agreement contradicts or conflict with the terms and conditions of Merchant's previously submitted Request for Proposal ("RFP") or Paymentech's subsequent response to Merchant's RFP, the terms and conditions of this Agreement shall control. 12.10 Notices. Except as otherwise provided in this Agreement, all notices shall be given in writing and either hand delivered, mailed first class, postage prepaid (return receipt requested), or sent via overnight courier (with package tracking capability) (and will be deemed to be given when so delivered or mailed) to the addresses set forth below or to such other address as either party may from time to time specify to the other party in writing. 12.11 Governing Law; Waiver of Right to Contest Jurisdiction; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the laws of the State in which Merchant has its primary residence without reference to conflict of law provisions; unless otherwise mandated by applicable law. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO CONTEST JURISDICTION. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. 12.12 Force Majeure. Neither party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, internet failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this Section will affect or excuse Merchant's liabilities and obligations for Chargebacks, refunds, or unfulfilled goods and services. 12.13 Amendment. Except as otherwise set forth in this Agreement, the Agreement may be amended only by written agreement of the parties. Notwithstanding the foregoing, in the event the terms of this Agreement must be amended pursuant to a change required by the Card Network Rules or required for compliance with applicable law, such amendment will be effective immediately upon written notice to Merchant. 12.14 Counterparts and Electronic Signature. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 12.15 Merchant Taxpayer Certification and CMS Reporting Obligations. Pursuant to 26 USC 6050W, CMS is a "payment settlement entity", obligated to collect and report certain taxpayer information to the United States Internal Revenue Service. Therefore, in conjunction with the execution of this Agreement, Merchant shall provide CMS with the appropriate taxpayer certification documentation, via Internal Revenue Service (IRS) Form W-9 (or the appropriate versions of Form W-8, if applicable). Merchant shall promptly notify CMS if there are any changes in this information. CMS may deduct withholding taxes, if any, from proceeds payable to Merchant or any entity that is a party to this agreement where required under applicable law. CMS may, in accordance with applicable law and from time to time during the term of this Agreement, request Merchant to recertify its taxpayer certification hereunder. Furthermore, Merchant shall be responsible for any penalties related to the reporting obligations of CMS hereunder to the extent such penalties accrue based on the actions or inactions of Merchant despite reasonable notice from CMS. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 14 of 17 13. Survival. The terms that expressly or by their nature contemplate performance after the termination or expiration of this Agreement shall survive and continue in full force and effect. For the avoidance of doubt the provisions relating to Authorization and Settlement, Refunds, Chargebacks, Termination, Indemnification, Confidentiality, Use of Data, Audit Rights and Limitation of Liability each, by their nature, contemplate performance or observance after this Agreement expires or terminates and therefore shall survive. 14. Definitions. "Acceptance Technologies" means the quick response code or other entry methods (e.g. near field communication or Bluetooth low energy enablement) following Chase's (or its licensor's) formats and specifications used by Merchant's Point of Sale terminals or a user's mobile device to relay data relating to the user and/or the user's Transaction between a user and Merchant, regardless of the interface, together with any upgrades, modifications or enhancements thereto. "Application" means a statement of Merchant's financial condition, a description of the characteristics of Merchant's business or organization, and related information Merchant has previously or concurrently submitted to CMS, including credit, financial and other business related information, to induce CMS to enter into this Agreement with Merchant and that has induced CMS to process Merchant's Transactions under the terms and conditions of this Agreement. "Card" means a physical or virtual credit or debit card, or any evidence thereof (e.g. account number, access number, token, code, payment credential, or other form factor or access device), or any device, mobile application, digital wallet or other technology, medium or method (regardless of form) used to access an account or account number through which Card Network payment services are delivered, authorized and established between a Customer and a Card Network, or representatives or members of a Card Network that Merchant accepts from Customers as payment for goods or services. "Card Information" means information related to a Customer or the Customer's Card, that is obtained by Merchant from the Customer's Card, or provided by the Customer in connection with his or her use of a Card, including, without limitation, Card account numbers and expiration dates, security codes (e.g. CVV2, CVC2, etc.), PIN numbers, credit limits, account balances, or Customer billing address, phone numbers, or zip codes (when provided solely as part of an identity verification system), and any data read, scanned, imprinted, or otherwise obtained from the Card, whether printed thereon, or magnetically, electronically, or otherwise stored thereon. For the avoidance of doubt, information about Customers which is not specific to Customer's Card and which is voluntarily provided to Merchant by Customers for purposes of shipping or delivering goods or services, Customer's participation in a loyalty program, mailing list, special offers, or similar purposes (e.g., Customer's name, mailing address, phone number, email address, birthdate or age), shall not be deemed Card Information. "Card Network" means any payment card network provider whose payment method is accepted by CMS for processing, including, without limitation, Visa Inc., MasterCard International, Inc., Discover Financial Services, LLC, American Express, Pulse, and STAR. "Card Network Rules" means all bylaws, rules, programs, regulations, specifications, and manuals, as they exist from time to time, of the Card Networks. With respect to the Chase Transactions, the Chase Requirements are the applicable Card Network Rules. "Chargeback" means a reversal of a Transaction Merchant previously presented to CMS pursuant to Card Network Rules. "Chase" means JPMorgan Chase Bank, N.A., a principal party to this Agreement through which Merchant's acceptance of Card Network products is extended. "Chase Card" means a Card issued by Chase or its affiliates and used to access a line of credit, prepaid account, or deposit account, issued or maintained by Chase or its affiliates. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Paee 15 of 17 "Chase Customer" means any person or entity to whom a Chase Card is issued or who is otherwise authorized to use a Chase Card. "ChaseNet" means Chase's payment processing platform(s) where Transactions involving Eligible Chase Cards are processed directly between Merchant and Chase, bypassing the traditional Card Network "interchange" system. "Chase Transaction" means a Transaction utilizing an Eligible Chase Card and which is processed over the ChaseNet platform. "Chase Pay" means Chase's proprietary Chase Pay -branded digital wallet product allowing Chase Customers to use their Eligible Chase Pay Cards to purchase goods or services from merchants by using: (i) the Chase Pay Application at the Point of Sale, (ii) the Merchant Application, at the point of sale and/or for purchases made within the Merchant Application, (iii) any third party mobile application(s) which may support Chase Pay and which CMS has notified Merchant in writing can be utilized for Merchant's Chase Pay Transactions at the Point of Sale, or (iv) Chase's Chase Pay -branded "payment button" which may be incorporated into or embedded in Merchant's online and/or mobile ecommerce websites, in each case together with all associated Chase software, code, applications, technical specifications, application program interface, software development kit ("SDK"), and related tools and materials. "Chase Pay Application" means a mobile software application published by Chase which houses Chase Pay and provides payment options and other loyalty solutions to Chase Customers. "Chase Pay Transaction" means a Chase Transaction which is facilitated by use of Chase Pay and processed by CMS pursuant to this Agreement. "Chase Requirements" means the Chase Merchant Program Requirements, as amended, revised and updated from time to time, which set forth the rules and requirements applicable to the acceptance of Chase Transactions. "Customer" means the person or entity to whom a Card is issued or who is otherwise authorized to use a Card. "Data Compromise Event" means an occurrence that results, or may have resulted, directly or indirectly, in the unauthorized access to or disclosure of Card Information in the possession or control of a party to this Agreement or its service providers. "Effective Date" means the date the Agreement takes effect pursuant to Section 6.1. "Eligible Chase Card" means a Chase Card of a type that Chase, in its sole discretion, has determined to be eligible for use in Chase Transactions processed over ChaseNet generally. Unless CMS has notified Merchant otherwise in writing (or the parties have agreed in writing to Chase Transaction pricing specific to another Card type, e.g. PIN debit), Eligible Chase Cards shall be limited to consumer and small business Chase Cards for which a Visa - branded credit or signature debit card has been issued. "Merchant" means the legal entity identified in the Application and on the first and signature pages of this Agreement. "Merchant Application" means any software application developed by or on behalf of Merchant that provides various services and capabilities for Merchant's customers including the ability purchase or otherwise effect payment for Merchant goods or services. "Point of Sale" means the physical point of sales systems (including fuel pumps) owned or managed by Merchant and used by Merchant to accept payment for their own goods and services. "Refund" means any refund or credit issued for any reason, including, without limitation, for a return of merchandise or cancellation of services, and any adjustment of a Transaction. U.S. Select Government Merchant Processing Agreement - Rev. 1/26/2018 df INTERNAL PAYMENTECH USE Merchant Name: Page 16 of 17 "Referral Partner" is a third party that has entered into a (i) formal referral relationship with Paymentech pursuant to which it referred Merchant to Paymentech for payment processing services and/or (ii) preferred pricing program with Paymentech. The Referral Partner may be involved in the servicing and maintenance of Merchant's account. Referral partners may include, as applicable, without limitation, financial institutions, Merchant's franchisor, independent sales organizations, trade associations or groups and service providers. "Reserve Account" shall have the meaning set forth in Section 2.6. "Security Standards" means all rules, regulations, standards, or guidelines adopted or required by the Card Networks or the Payment Card Industry Security Standards Council relating to privacy, data security, and the safeguarding, disclosure, and handling of Payment Card Information, including, without limitation, the Payment Card Industry Data Security Standards ("PCI DSS"), Visa's Cardholder Information Security Program , Discover's Information Security & Compliance Program , American Express's Data Security Operating Policy, MasterCard's Site Data Protection Program , Visa's Payment Application Best Practices , the Payment Card Industry's Payment Application Data Security Standard , MasterCard's POS Terminal Security program, and the Payment Card Industry PIN Transmission Security program, in each case as they may be amended from time to time. "Service Provider" means any party that processes, stores, receives, transmits, or has access to Card Information on Merchant's behalf, including, without limitation, its agents, business partners, contractors, and subcontractors. "Transaction" means any transaction conducted between a Customer and Merchant utilizing a Card in which consideration is exchanged between the Customer and Merchant. "U.S." means the forty eight (48) contiguous states of the United States, District of Columbia, Alaska and Hawaii. For the avoidance of doubt, all other United States possessions and territories are excluded, except as may otherwise be provided in an addendum hereto. IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement. Agreed and Accepted by: Merchant Legal Name By (authorized signature) Print Name and Title Date Address City, State Zip Agreed and Accepted by: PAYMENTECH, LLC for itself and on behalf of JPMORGAN CHASE BANK, N.A By Print Name and Title Date 8181 Communications Pkwy, Blda C, Floor 03 Address Plano, Texas 75024 City, State Zip V. 14252 To Be Completed By Paymentech, LLC Merchant Agreement Contract Number is: Merchant Processing Identification Number Will Be Provided At Time of Processing Set Up Merchant Processine Aereement - Rev. INTERNAL PAYMENTECH USE Merchant Name: Page 17 of 17 CHASE Schedule A to Merchant Agreement n Merchant: City of Newport Beach J.l'.1�1t"�r�clil NAPFINSCHEDAICPTIF 20180101 V3.18.1 ASSLImptions Transaction• assumptions Other assumptions Payment Transaction Sales Volume $21,570,000 Number of locations 22 Average Transaction Amount !__j05.0% g _ $30.00 � Authorization /Capture % � 105A% PIN Debit / EBT Transactions 0 ; Chargebacks as % of Sales Transactions 0.0300% Conveyed Transactions 13,000 ( Billing Frequency_ Monthly Safetech Encrypted Items N/A TargetMasterCard: Public Sector MUPS Qualification __ Visa: CPS_Retail 2 (Emerging Markets) vcR2 Level: Discover: PSL Public Services - Core pT61 MasterCard, Visa & Discover Interchange Rates _ as set by each Payment Brand MasterCard, Visa & Discover Incremental Discount Rate _. ` - 0.0400% PIN Debit and/or EBT Network Fees All standard PIN Debit Network Fees will be assessed PIN Debit — Incremental Discount Rate_ N/A JCB (Japanese Credit Bureau) N/A Y_. Voyager. Discount Rate (If settled) N/A Credit transactions $ 0.130% MasterCard Network Access--��� MasterCard and all Debit transacc tionsns _ Brand Usage Fee (NABU) $0.0195 $0.0195 Credit transactions > $1000 0.140% (Charged per Authorization & per Refund) Visa Debit transactions 0.13_0% Visa Processing Fee (APF) Credit transactions 0.130% (Charged per Authorization $ per Refund) $0.0195 $0.0155 Discover 0.130% Discover Data Usage Fee $0.0195 $0.0195 MC File Transmission Fee per transaction * 0.0014 $0.0018 $ Visa Financial Transaction Fee " MasterCard assesses a file transmission fee based on the number of bytes of data contained in a transmitted file. Because file size may vary from transaction to transaction, the parties acknowledge that it is not possible to accurately translate the byte based fee into a consistently accurate transaction -based fee. In light of the foregoing, the parties have agreed that Merchant shall pay Chase a fee in the amount stated above for each transaction submitted under this Agreement. Such fee shall be deemed to be the file transmission fee imposed by MasterCard on each transaction for all purposes of this Agreement, and Chase may change the amount of such fee in accordance with the terms of this Agreement in the event MasterCard changes the amount or calculation of its file transmission fee. MasterCard per transaction N/A Visa per transaction N/A Discover per transaction N/A JCB per transaction N/A —+ American Express per transaction $0.0400 PIN Debit per transaction $0.0400 EBT per transaction N/A Check Verification — Scan per transaction _ N/A Voyager per transaction N/A Wright Express per transaction N/A Hosted Pay Page per transaction N/A Customer initials X MasterCard per authorization $0.0400 Visa per authorization _ i $0.0400 Discover per authorization $0.0400 JCB per authorization N/A American Express per authorization N/A _., Voyager per authorization _ N/A Wright Express per authorization N/A Private Label per authorization N/A Dial Backup authorization surcharge NIA nc Safetech Encryption per transaction( ryp p $0.02500 Safetech Tokenization per transaction — N/A Please initial to acknowledge page 1 of the Schedule A pricing sheet CONTROL NUMBER: 536008.V3181 Printed: December 12, 2018 Page 1 of Account Setup Fee N/A Monthly Service Fee' N/A I Annual Fee I N/A Rush Fee N/A Monthly Minimum Fee 2 _ $25.00 Payment Brand Fees Terminal Reprogram Fee N/A Monthly Helpdesk Fee N/A j Visa Fixed Acquirer Varies PIN Debit Setup Fee N/A Online Reporting Tool �� N/A ._ ' Network Fee 4 PIN Pad Encryption Fee N/A Safetech Encryption 3 1 N/A MC Merchant Internet Product: NIA Location Fee 5 $1.25 Setup Fee N/A :�Monthly Fee N/A _ Third Party Setup Fee N/A Third Party Monthly Fee NIA 1 — Monthly service fees will be debited for the first time in the month after your account has been set up. These fees will be debited regardless of whether you are processing transactions through your account. 2 — We will apply the Monthly Minimum Fee only when the total amount of all processing fees (Sections 1, 3A, & 4) is less than $25.00. If your processing fees do not reach $25.00, we will charge the difference. For example, if processing fees total $17.00 we would charge an additional $8.00 to meet the $25.00 minimum. 3 — If Merchant obtains point of sale devices) from Chase for use with Safetech Encryption, the following additional fees shall be assessed: (a) a one-time fee of $10.90 per device; and (b) an encryption injection fee of $34.95 per device per occurrence. These assessments are in addition to the above Safetech Encrypfion Fee(s). If Merchant obtains point of sale device(s) from a third party, additional fees may apply. Merchant acknowledges and understands that its use of any fraud mitigation or security enfacement solution (e.g. an encryption product or service), whether provided to merchant by Chase or a third party, in no way limits Merchant's obligation to comply with the Security Standards or Merchant's liabilities set forth in this Agreement. 4 — Visa Fixed Acquirer Network Fee is a monthly fee assessed by Visa based on Merchant Category Code (MCC), dollar volume, number of merchant locations, number of Tax IDs, and whether the physical Visa card is present or not present at the time of the transaction_ This fee can vary monthly. 5 — MC Merchant Location Fee of $1.25 will be applicable for each month with $200 or more in MasterCard volume_ This fee will be assessed annually in May based on the previous 12 months activity. Chargeback Fee $10.00 Charged when a cardholder or card -issuing bank formally protests a charge Voice Authorization Fee $0.65 Charged when you call the Voice Authorization phone number to authorize a credit card AVS Fee — Electronic N/A Charge for each electronic address verification authorization Batch Settlement Fee N/A Charged for each batch of transaction(s) you submit for settlement ACH fee N/A Charged for each ACH (transmission of funds) sent to your account ACH Return Fee $25.00 Charged when Chase is unable to debit fees from your account 3B. Per Request Fees: Charged every time you request one of the below items Statement Fee (Email / ROL) N/A No charge if statements are sent to a valid email address or accessed by Merchant through Resource Online, as elected by Merchant on the Application. Statement Fee (Mail) $5.00 Charged each month Chase mails a statement (whether at the request of Merchant or because delivery to a valid email address has failed) Statement Fee (Reprint) N/A Charged for each archived statement you request to have printed Supplies: Billed Per Order N/A Charges for supply orders vary based on the items ordered Dynamic Debit Surcharge Fee N/A Charged for each PIN Debit transaction routed with the Dynamic Routing product PIN Debit Injection Fee $40.00 Charged when merchant elects PIN Debit processing and applies to each device not purchased from Chase. Statement Type: Resource Online y No Statement / No Recap Statement Frequency: N/A Customer initials X CONTROL NUMBER: 536008.V3181 Please initial to acknowledge page 2 of the Schedule A pricing sheet s Printed: December 12, 2018 Page 2 of 4 4. Payment Brand Fees — Per Incidence MC Acquiring License Fee " 0.004% Charged on MasterCard Gross Sales volume. See additional information under Payment Brand Charges section on page 4. MC Digital Enablement / Card Not Present Fee 0.010% Charged on MasterCard Card Not Present Gross Sales volume. Discover Network Authorization Fee $0.0025 Charged by Discover on all authorizations for card transactions that are settled through the Discover Network MC Auth Access Fee — AVS Card Present $0.010 Charged by MasterCard when a merchant uses the address verification MC Auth Access Fee — AVS Card Not Present $0.010 service to validate a cardholder address MC Auth Access Fee $0.005 Charged by MasterCard when an authorization is reversed or the authorization is provided by MasterCard if the card Issuer is not available. MC Card Validation Code 2 Fee $0.0025 Charged by MasterCard when a merchant submits the Card Validation Code 2 (CVC2) in an authorization request MC SecureCode Transaction Fee $0.030 Charged on MC SecureCode transactions that are sent for verification - MC Account Status Fee (Intra -regional) $0.025 MC Account Status Fee (Inter -regional) $0.03 Charged by MasterCard or Visa when a merchant uses this service to do an inquiry that a card number is valid Visa Zero $ Account Verification Fee $0.025 MC Processing Integrity Fee Pre Authorization $0.045 Charged when a card is authorized but not deposited and the authorization is Final Authorization " 0.250% not reversed in a timely manner. " the minimum fee amount for a Final Authorization is $0.04 Visa Misuse of Authorization Fee $0.093 Visa Zero Floor Limit Fee $0.20 Charged when a transaction is deposited but never authorized Visa Transaction Integrity Fee — Credit $0.10 Charged on Visa transactions that do not meet qualification criteria for US Visa Transaction Integrity Fee — Debit / Prepaid $0.10 Custom Payment Service (CPS) categories_ MC Ineligible Chargeback Blocking Fee $3.00 Charged when a fraud related Chargeback is blocked by MasterCard. MC Cross Border Assessment Fee 0.60% Visa International Service Assessment Fee 0.80% Charged by MasterCard, Visa and Discover on foreign bank issued cards. Discover International Service Fee 0.80% MC International Support Fee 0.85% Visa Interregional Acquiring Fee 0.45% Additional fee charged by MasterCard, Visa and Discover on foreign bank issued cards_ Discover International Processing Fee 0.50% Visa Partial Auth Non -Participation Fee $0.01 Applies to Petroleum merchants using automated fuel pumps that do not support Partial Authorization MC Global Wholesale Travel Transaction ° 1.57 /o Applies to Travel merchants for transactions qualifying at the MasterCard Program B2B Fee Commercial Business -to -Business interchange category. Visa Global B26 Virtual Payment Service 1.55% Applies to Travel merchants for transactions qualifying at the Visa Global B2B Fee Virtual Payments interchange category. Applies to transactions qualifying at the MasterCard Humanitarian Prepaid MC Humanitarian Program Fee 0.25% card interchange category. When this fee applies, other MC Payment Brand fees will be waived. Customer initials X Please initial to acknowledge page 3 of the Schedule A pricing sheet CONTROL NUMBER: 536008.V3181 Printed: December 12, 2018 Page 3 of 4 Equipment Swap Fees Type Description Fee Replacement Fee (swap) In warranty - Terminals, Printers, & Pinpads$50.00 Replacement Fee (swap)Out of warranty - Terminals, Printers, & Pinpads: Replacement (swap) fees vary p I based on Manufacturer and Model and will fall within the specified range to the right $100-$250 Injection Fee (swap) I Safetech Encryption Injection I $34.95 Late Fee For all equipment returned late, or not returned I $500.00 1) Equipment: In Warranty timeframe 1 Year — applies only to new equipment purchased from Chase Amount payable upon Termination In addition to the other amounts due under this Agreement (including without limitation, the fees and charges described in this Schedule A), you may owe an amount in the event you terminate this Agreement. Whether you will owe that amount, and how much you will owe, will be determined in accordance with Section 10 of the Merchant Agreement_ Payment Brand Charges Part of the fees that we charge you for processing your transactions consist of fees we pay to the Payment Brands. These charges, called "Payment Brand Charges", include, but are not limited to, interchange rates, assessments, file transmission fees, access fees, and international and cross border fees. Therefore, in addition to the rates set forth above, you also will be charged Payment Brand Charges_ Payment Brand interchange rates can be accessed online by visiting the Support & Resources section of Chase Merchant Service's website, and selecting "Interchange"_ Please note that Paymentech, LLC ("Chase") may, from time to time, elect not to charge you for certain existing, new or increased Payment Brand Charges. If we elect not to charge you, we still reserve the right to begin charging you for existing, new or increased Payment Brand Charges at any time in the future, upon notice to you. No such Payment Brand Charges will be imposed retroactively. " MasterCard assesses the MasterCard Acquiring License Fee annually to each Acquirer based on the total annual volume of MasterCard -branded sales (excluding Maestro PIN debit volume) of its U.S. domiciled merchants. To fairly distribute the fee across all Chase MasterCard -accepting merchants, a rate of 0.004% will be applied to all of your MasterCard gross sales transactions. 6. Authorized Signature Authorized Representative Signature: Must appear on Merchant Application section 10 Print Name Title Signature Date Please ensure you have initialed pages 1, 2 and 3 CONTROL NUMBER: 536008.V3181 Printed: December 12, 2018 Page 4 of 4 SCHEDULE B: CERTAIN SPECIFIC CARD NETWORK REQUIREMENTS 1. Merchant agrees to: • Perform all of its obligations under this Agreement incompliance with applicable laws and regulations • Comply with the Card Network Rules regarding use of the Card Network trademarks or service marks ("Marks"), Card Network acceptance, risk management, Transaction processing, and any Card Network products, programs or services in which the Merchant is required to, or chooses to participate. • Not knowingly submit any Transaction that is illegal or that the Merchant should have known was illegal. 2. Merchant agrees that each Card Network shall be entitled to limit or terminate (or cause CMS to limit or terminate) this Agreement. 3. CMS shall be entitled to immediately terminate this Agreement for any significant circumstances that create harm or loss of goodwill to the Card Networks or their respective payment systems. Merchant shall not submit any Transaction that it knows or should have known to be either fraudulent or not authorized by the Customer. Merchant is responsible for its employees' actions. Merchant shall not submit any Transaction that does not result from an act between the Customer and Merchant. 4. Merchant must not deposit a Transaction until the Transaction is completed and all goods or services are shipped or provided, except: (i) if the Customer has agreed to a delayed delivery or an advance deposit, (ii) in the case of a prepayment of services or custom merchandise, if the Merchant advises the Customer of the immediate billing at the time of the Transaction; or (iii) Customer consent has been obtained for a recurring transaction. 5. For recurring Transactions, Merchant shall (i) obtain the Customer's legally recognized consent to periodically charge the Customer on a recurring basis for the goods or services purchased, which consent shall include the frequency of recurring charges, the amount of the recurring Transactions (unless the recurring Transactions are for varying amounts), and the duration of time for which the charges may be made; (ii) retain such consent and provide it upon request to CMS or the issuing bank of the Customer's Card; (iii) not submit any recurring Transaction after beyond the duration specified in such consent or after receiving a cancellation notice from the Customer or a notice from CMS or any Card Network (via authorization decline response code or otherwise) that the Transaction is not authorized or that the Card is not to be honored; and (iv) include in its Transaction data the electronic indicator that the Transaction is a recurring Transaction. 6. Merchant must not establish a minimum or maximum Transaction amount as a condition for honoring a Card except as permitted by the applicable Card Network Rules or to the extent applicable laws or regulations expressly require that Merchant be permitted to impose such minimum or maximum. Merchant must not require any Customer to pay a surcharge, any part of Merchant's discount rate, or any contemporaneous finance charge in connection with a MasterCard Transaction, and shall not add any amount over the advertised or normal price to a Transaction, except to the extent expressly permitted by the applicable Card Network Rules or by applicable laws or regulations expressly require that Merchant be permitted to impose such surcharge or amount. Any surcharge amount, if allowed, must be included in the Transaction amount and not collected separately. If Merchant chooses to impose any surcharge, Merchant shall provide each Card Network and CMS with no less than 30 days' advance written notice that the Merchant intends to impose such surcharge on Transactions at either the brand level or product level. Merchant may not impose any such surcharge at both the brand and product level. 7. Merchant may request but may not require Customer identification as a condition of Card Acceptance, unless such information is required to complete the Transaction, such as for shipping purposes. If the name on the identification does not match the name on the Card, Merchant may decide whether to accept the Card. If the Customer does not have or is unwilling to present Customer identification, Merchant must honor the Card. 8. Merchant must not accept a Card to collect or refinance an existing debt. Merchant must not: (i) accept Customer payments for previous card charges, or (ii) complete a Transaction that represents the collection of a dishonored check. 9. Merchant must not accept a Card for the purchaser of scrip. 10. Merchant must not provide cash to a Customer (unless the Merchant is a hotel or cruise line, or is participating in a Card Network program that specifically allows cash back). A prepaid Card must not be redeemed for cash. Schedule B: Certain Specific Card Network Requirements- Rev. 10/5/2017 df INTERNAL PAYMENTECH USE Merchant Name: Paee 1 of 3 11. Merchant and its Service Providers shall comply with the provisions of VISA'S Cardholder Information Security Program ("CISP"). Merchant shall be responsible for demonstrating compliance by its Service Providers with the requirements of CISP. Merchant shall notify MasterCard and CMS immediately if Merchant becomes aware of a Data Compromise Event. If Merchant is undergoing a forensic investigation at the time this Agreement is signed, Merchant shall fully cooperate with the investigation until completed. 12. Merchant agrees to accept all categories of Visa and MasterCard Cards (i.e., debit and credit cards), unless Merchant has notified CMS on its Application or otherwise in writing of its election to accept one of the following "limited acceptance" options: (i) all Visa and MasterCard consumer credit cards and Visa and MasterCard commercial credit and debit cards; or (ii) Visa and MasterCard debit cards only (but no credit cards). Notwithstanding the election of one of the foregoing limited acceptance options, Merchant must honor all foreign bank -issued Visa and MasterCard Cards. If Merchant elects one of the limited acceptance categories: Merchant must display appropriate signage to indicate the limited acceptance category; and CMS, at its option, may process any Transactions submitted to CMS outside of the limited acceptance category, in which case such Transactions will be assessed the applicable interchange fees plus any additional fees/surcharges assessed by CMS or the Card Networks. Merchant must honor all valid Cards within Merchant's range of acceptance without discrimination when properly presented for payment. Merchant must maintain a policy that does not discriminate among customers seeking to make purchases with a Card. 13. Merchant's use or display of any Card Network Marks will terminate effective with the termination of this Agreement or upon notification by the Card Network to discontinue such use or display. Any use of a Card Network Mark by Merchant in advertising, acceptance decals, or signs, must be in accordance with the Card Network Rules, including the Card Network's reproduction, usage, and artwork standards, as may be in effect from time to time. 14. Merchant shall prominently and unequivocally inform the Customer of the identity of the Merchant at all points of interaction, so that the Customer readily can distinguish the Merchant from any other party, such as a supplier of products or services to the Merchant. 15. Merchant's electronic commerce website shall: • Prominently display the name of the Merchant (at least as prominently as any other information depicted on the website, other than images of the products or services being offered for sale), and identify such displayed name as both the Merchant and as the name that will appear on the Customer statement • Display a customer service contact, including email address and telephone number; • Display the address, including the country, of Merchant's fixed place of business (regardless of website or server locations), either on the same screen view as the checkout screen used to present the final Transaction amount, or within the sequence of web pages the Customer accesses during the checkout process; • Clearly indicate Merchant's return/refund policies either on the checkout screen used to present the final Transaction amount, or within the sequence of web pages the Customer accesses during the checkout process; • Contain the Merchant's policy for delivery of multiple shipments; and • Provide a description of its security methods, capabilities and policy for transmission of Card Information. Merchant must ensure that the Customer understands that the Merchant is responsible for the Transaction, including delivery of the products (whether physical or digital) or provision of the services that are the subject of the Transaction, and for customer service and dispute resolution, all in accordance with the terms applicable to the Transaction. 16. Merchant shall prominently display the appropriate Card Network Marks indicating acceptance at the point of interaction, wherever payment options are presented. Such Card Network Marks may also be displayed in advertising or other materials or images at the physical or electronic point of interaction to indicate brand acceptance. No other Card Network Marks or marks may be used for these purposes. Upon request, Merchant shall supply CMS with samples of any materials or images bearing the appropriate acceptance Card Network Marks. 17. Merchant may request or encourage a customer to use another form of payment, a Card of a different Card Network, or a Card of a different type (for example, traditional cards, premium cards, or rewards cards) than the one the consumer initially presents. Except where prohibited by law, it may do so by methods that include, but are not limited to: • Offering the customer an immediate discount from the Merchant's list, stated, or standard price, a rebate, a free or discounted product or service, or any other incentive or benefit if the customer uses a particular Card with an acceptance brand other than the Card Network or other particular form of payment; • Offering the customer an immediate discount from the Merchant's list, stated, or standard price, a rebate, a free or discounted product or service, or any other incentive or benefit if the customer, who initially presents a Card, uses instead another Card or another form of payment; Schedule B: Certain Specific Card Network Requirements- Rev. 10/5/2017 df INTERNAL PAYMENTECH USE Merchant Name: Page 2 of 3 Expressing a preference for the use of a particular Card or form of payment; Promoting the use of a particular general purpose Card with an acceptance brand other than the Card Network or the use of a particular form or forms of payment through posted information, through the size, prominence, or sequencing of payment choices, or through other communications to customers (provided that the Merchant will abide by the Card Network Rules relating to the display of the Card Network Marks including, but not limited to, the Card Network Mark indicating acceptance); or Communicating to customers the reasonably estimated or actual costs incurred by the Merchant when a customer uses particular Cards or forms of payment or the relative costs of using different general purpose Cards or forms of payment. Notwithstanding the foregoing, Merchant may not offer a discount or other benefit to a Customer if the Customer uses a particular issuing bank's Card, unless the discount or other benefit is available for all other Cards of the same product type or is accessed 1) after the Transaction has been completed (for example, a credit on the billing statement or a rebate); or 2) at the time of or after the Transaction and is effected by a separate instrument and not by the Card (for example, a coupon or a voucher). Merchant must not promote a discount or other benefit for use of a particular issuing bank's Card. 18. At its sole discretion, at any time, a Card Network may, either itself or through CMS or any agent of such Card Network, investigate, review, audit, or inspect Merchant, including by inspecting the premises and auditing the books, records, and procedures of Merchant to ensure that it is complying with the Card Network Rules and applicable brand and security standards and procedures. Merchant agrees that in such event it shall cooperate fully with such Card Network (or its agent) in connection with such investigation, inspection, audit or review, including, without limitation by providing access to Merchant's premises and to all pertinent records and requested information. 19. Except as expressly permitted in the Card Network Rules, Merchant must not directly or indirectly require any Customer to pay a surcharge or any part of any Merchant discount or any contemporaneous finance charge in connection with a Transaction. Merchant may provide a discount to its customers for cash payments. Merchant that chooses to impose a permitted surcharge must provide the Card Networks and CMS with no less than 30 days' advance written notice that the Merchant intends to impose a surcharge on Transactions at either the brand level or product level. 20. Merchant may set a minimum Transaction amount to accept a Card that provides access to a credit account, under the following conditions: (i) the minimum Transaction amount does not differentiate between Card issuers; and (ii) the minimum Transaction amount does not differentiate between one Card Network and another Card Network; and (iii) the minimum Transaction amount does not exceed USD 10 (or any higher amount established by the Federal Reserve by regulation). 21. The Card Network Marks indicating acceptance must not be displayed at any POS Terminal that dispenses scrip. Merchant must not submit to CMS any Transaction that arises from the acceptance of a Card at a scrip -dispensing Terminal. 22. Merchant must not submit any Transaction that represents the refinancing or transfer of an existing Customer obligation that is deemed to be uncollectible, or arises from the dishonor of a Customer's personal check. 23. Merchant shall not impose, as a condition of acceptance of a Card, a requirement that the Customer waive a right to dispute a Transaction. 24. Merchant shall not submit any Transaction that is illegal, or in the sole discretion of any Card Networks, may damage the goodwill of the Card Network or reflect negatively on the Card Network Marks, including, without limitation, (i) for the sale or offer of sale of a product or service other than in full compliance with any law then applicable to CMS, the issuing bank, Merchant, Customer the Card, or the Card Networks, or (ii) for the sale of a product or service, including an image, which is patently offensive and lacks serious artistic value (such as, by way of example and not limitation, images of nonconsensual sexual behavior, sexual exploitation of a minor, nonconsensual mutilation of a person or body part, and bestiality), or any other material that a Card Network deems unacceptable to sell in connection with a Card Network Mark. Merchant shall submit to CMS only valid Transactions between the Merchant and a bona fide Customer, and shall not submit any Transaction which it knows or should have known to be fraudulent or not authorized by the Customer, or to be authorized by a Customer colluding with the Merchant for a fraudulent purpose. 25. Merchant shall not disparage any Card Network or any of the Card Networks' products, programs, services, networks, or systems. 26. Merchant must not sell, purchase, provide, exchange or in any manner disclose Card Information to anyone other than CMS, to the Card Networks, or in response to a valid government demand. This prohibition applies to Card imprints, TIDs, carbon copies, mailing lists, tapes, database files, and all other media created or obtained as a result of a Transaction. Schedule B: Certain Specific Card Network Requirements- Rev. 10/5/2017 df INTERNALPAYMENTECH USE Merchant Name: Page 3 of 3 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2019-89, was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 8th day of October, 2019; and the same was so passed and adopted by the following vote, to wit: AYES: Mayor Diane Dixon, Council Member Brad Avery, Council Member Joy Brenner, Council Member Duffy Duffield, Council Member Jeff Herdman, Council Member Kevin Muldoon NAYS: None RECUSED: Mayor Pro Tem Will O'Neill IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of October, 2019. 4, r Leilani I. Brown City Clerk Newport Beach, California Nf,W 12fi