ExecuBanc Agreement

Ultima Bank Minnesota

Corporate Internet Banking Agreement

ExecuBanc & Related Services

Please read carefully this Internet Banking Agreement (hereafter “Agreement”) for the use of ExecuBanc and Related Services (hereafter “ExecuBanc”) as provided by Ultima Bank Minnesota (hereafter “UBM”). This Agreement includes disclaimers of liability and other matters of interest to ExecuBanc users.

Your Use of ExecuBanc

UBM is a privately held, commercial bank, chartered in Minnesota. It is a full service bank that provides a full array of “business” oriented, Internet Banking Service hereinafter referred to as ExecuBanc.

This Agreement between you and UBM governs your use of ExecuBanc, an electronic, online banking service that permits UBM customers to access certain “business” oriented, online financial services. Products and services provided by UBM that you can access through ExecuBanc are also governed by other agreements with you.

ExecuBanc, as used in this Agreement, includes the following Internet based UBM products and services: ExecuBanc, ACH Manager, and Electronic Delivery of Imaged Statements and Checks. In this Agreement, we will use the term “ExecuBanc” to refer to all of the above electronic services both individually and/or collectively. Additional services may be available in the future that will be automatically covered by this Agreement.

In addition to this Agreement, UBM’s Privacy Policy and Online Security Statement also apply to your Accounts. We suggest that you review these items in order to understand all of your relative rights and responsibilities in connection with your use of ExecuBanc.

You may use ExecuBanc to access your UBM business Accounts through the Internet. Currently, you can access your savings, checking, certificate of deposit and loan accounts at UBM.

Terms Used in this Agreement

• “We,” “us”, “our”, and “UBM” refer to Ultima Bank Minnesota located in Minnesota and any other affiliates that are involved in maintaining your UBM Account(s) and providing you with online banking services pursuant to this Agreement;
• “You” or “your” refers to the owner of a UBM account or your Authorized Representative.
• “Authorized Representative” refers to a person whom you authorize to transact business on your account by delivering to us a written document that shows the person has the authority to act with respect to your account. We may continue to recognize the authority of an Authorized Representative until we have received and had a reasonable time to act upon written notice from you that an Authorized Representative is no longer authorized to transact business on your account.
• “Account” refers to any business deposit or loan account maintained at UBM not used for personal, family or household purposes.
•  “Client Authorization” refers to your application by an Authorized Signer for ExecuBanc services.
• “Employee Information” allows an Authorized Signer to identify which accounts can be accessed by each Authorized Representative and to limit the types of authorized transactions.

Accepting This Agreement

You understand that by using ExecuBanc or by authorizing others to use the service, you have agreed to the terms and conditions of this Agreement and that no signature by you is required on this Agreement. You agree to use ExecuBancsolely as provided in this Agreement and agree to give UBM authority to monitor, store and retrieve electronic transmissions (including messages and data) between the us and you, our customer. When any transfer, payment, ACH transaction or online service generates items to be charged to your UBM Account, you agree that we may debit your Account without requiring a signature by an Authorized Representative on the item and without prior notice to you.

We may, from time to time, introduce new ExecuBanc related services. When this happens, we will update the Website to include them. By using any such ExecuBanc related service, you agree to be bound by the terms contained in this Agreement at that time.

Changes in Terms/Fees

We may change the ExecuBanc services and the terms, including fees, set forth in this Agreement at any time. You will be notified of any such change as required by applicable law, either by mail or by an electronic message. You understand that by using ExecuBanc after a change becomes effective, you have agreed to it.

Maintaining Your Accounts

You agree to properly maintain your UBM Accounts, to comply with the rules governing your UBM Accounts, and to pay any fees associated with the use or maintenance of your UBM Accounts. Any issue relating to a UBM Account or service with UBM or any UBM affiliate which you access through ExecuBanc shall be governed by the law(s) specified in the agreement for that UBM Account or service.

Your UBM deposit and loan accounts can be linked together and accessed and viewed via ExecuBanc. Your UBMAccounts will continue to be governed by the Terms and Conditions of your account and your loan agreements, except where it is noted in this Agreement. This Agreement will control if there is a conflict with your other agreements and this Agreement for ExecuBanc Services. In addition, each UBM Account and ExecuBanc service is subject to the following:

• Terms or instructions appearing on a screen when using ExecuBanc;
• UBM’s rules, procedures and policies applicable to your Accounts;
• Rules and regulations of any funds transfer system used in connection with ExecuBanc; and
• Applicable state and federal laws and regulations.

Account Access Via ExecuBanc

Through ExecuBanc, you can access your UBM Accounts to check balances, transfer funds, view transaction history, view check images and receive UBM Account Statements and other related documents electronically. You may choose the UBM accounts that you want to access and by whom. You can also customize the level of authority of such selected employees (“Authorized Representative”) and you can limit their online access time when you provide us with your account set-up information.

 To access your UBM Accounts via ExecuBanc you must have an Access ID, a Password or token and the required hardware and software. You are solely responsible for having the required hardware and software and for securing an Internet Service Provider (“ISP”). Subject to the terms of this Agreement, you will generally be able to access your Accounts via ExecuBanc at www.ultimabank.com seven days a week, 24 hours a day. A transfer requested through ExecuBanc before the transfer cutoff time on a business day will generally be posted to your UBM Account the same day. All transfers requested after the posted transfer cutoff time on a business day or on a day that is not a business day, will be posted on the next business day. Every day is a business day except Saturdays, Sundays, and banking holidays.

At certain times, ExecuBanc may not be available due to system maintenance or circumstances beyond our control. During such times, you may use, a UBM automated teller machine (“ATM”) or call one of the UBM facilities to obtain information about your UBM Accounts.

Password, Access ID and Multifactor Authentication

You and each of your Authorized Representatives will be provided a Password and Access ID that will allow each of you online access to ExecuBanc. During your first logon session(s), each of you will be required to activate your token and create a PIN.  When logging in thereafter, the Access ID will be used in conjunction with the 8-digit token value and PIN to gain access to your accounts.

We are entitled to act on instructions received under your company‘s authenticated access. You are responsible for familiarizing all authorized signers with the terms of this Agreement and for keeping your ExecuBanc PIN, token and Access ID confidential.

We use Multifactor Authentication as a means to let you know that you are dealing with our true and trusted website, and to let us know that we are dealing with you.  By utilizing a token and PIN process, UBM has increased the security for its online login process.

Tokens are used for our ACH and Deposit services when logging into and transferring funds within ExecuBanc and/or Remote Deposit.  It is important that you not share access of your token with anyone, and that you keep your PIN confidential.  If your token is ever lost, please report it to us at (800) 421-2588, option 2 immediately.

Electronic Mail (E-mail)

You can communicate with us via e-mail at tech@ultimabank.com. Please remember that we will not immediately receive an electronic message sent by you. No action will be taken on any electronic message you send to us until we actually receive your message and have a reasonable opportunity to act on it. You cannot use e-mail to make an account balance inquiry, deposit, a stop payment or a funds transfer. You cannot use e-mail as a sole means to cancel a transfer, or a loan payment. Never send us your ExecuBanc Password or Access ID or other sensitive UBM Account information via e-mail.

If you need to contact us immediately, please call (800) 421-2588 and press option 2.

Account Statements

All of your daily transactions, payments, and funds transfers can be displayed on your Account statement(s) via ExecuBanc. You can also access and download such transaction data from either your current or previous statement into your money manager software. You generally have up to 30 days after the last day of your previous statement (or 30 days after your previous statement is prepared) to export the information.

 

ELECTRONIC PAYMENT SERVICE

ePay

Through ExecuBanc, you are allowed to make certain payments electronically.  There is no limit to the number of payments that may be authorized from UBM Checking Accounts. However, only one payment may be sent to each payee on the same day. A Payee can be either a Business Payee or a Non-business Payee. You may not pay alimony, child support, taxes or other governmental fees or court-directed payments or make payments to anyone outside the United States via ExecuBanc. The mailing address of any Payee must be in the United States and you are responsible for ensuring that you provide us with a correct address. By furnishing us with the names of your payees and their addresses, you authorize us to follow your instructions regarding payment to your Payees.

Payee Information

In addition to your Payee names and addresses, you will need to enter your Payee account number for each Business Payee (name, address and account number together are “Payee Information”) to ensure your payments are properly credited to your Payee account. Please note that your Business Payee may require that payments be sent to a specific address; this mailing address may be different than other addresses that appear on your invoice or billing statement. You may need to contact the Business Payee to obtain their payment mailing address.

Payee information is retained by ExecuBanc and can be retrieved by you at any time. Additions, deletions, and changes to Payee information can be made at any time from your personal computer, subject to the timing requirements noted in the Stop or Change Instructions section below. Such Payee information is used solely for the purpose of processing payments from your UBM Accounts and is subject to UBM’s Privacy Policy as described in the Disclosure of Information section of this Agreement. The date the payment is to be paid, whether electronically or by check, is called the Pay Date. When we receive a payment instruction (for the current or a future date), we will make payment to the payee on your behalf from the funds in your UBM Account upon the Pay Date.  ePay funds will clear your account either by electronic means or a check drawn on your UBM account directly or the CheckFree corporate checking account.

We will not be obligated to make a payment unless your UBM Account and/or linked overdraft protection plan has sufficient funds or credit availability to pay the bill on the date the payment clears your account. Funds for ALL bill payments (whether we make these payments electronically or by check) will be withdrawn from your UBM account upon the date of the electronic payment or once the check clears your account.

Scheduling Payments

 Any payments made via ExecuBanc will require sufficient time for your Payee to receive your payment and credit your payment properly.  To avoid incurring finance or other charges, you should schedule your payment sufficiently in advance of the due date. When you schedule payments, please take special care to select your appropriate date from the ePay calendar.  Expedited delivery is possible available for a fee that is your responsibility.

Stop or Change Instructions

You have the right to stop or change any one-time bill payment as long as it is done before the check processes. Please click on the Help section within ePay for more details or contact us at (800) 421-2588 and press option 2 for assistance.

Reimbursement Responsibility

If we do not transfer or otherwise issue a payment from your Account, as requested by you in accordance with the terms and conditions of this Agreement and/or in accordance with the ExecuBanc on-line instructions; or in the amount requested by you in accordance with the terms and conditions of this Agreement and/or the ExecuBanc on-line instructions, we will reimburse you for any late payment fees or penalties that you are charged in connection with such occurrence, up to a maximum of $50 for each such occurrence.

However, we will not reimburse you if:

• Through no fault of ours, you did not have enough money in your UBM Account to complete the transaction.
• The transaction would have caused you to exceed your available credit.
• The money in your UBM Account was attached, subject to legal process, or was blocked in some other way.
• The payment was made to a non-business Payee.
• You knew there was a technical malfunction in ExecuBanc and you used it anyway.
• You were trying to defraud us.
• Circumstances beyond our control, or a natural disaster such as a flood or fire, prevented the transaction from taking effect.

ONLINE “BUSINESS” BANKING

ExecuBanc and Related Services

To use ExecuBanc, you need:

• A business checking account or a business loan account located at UBM;
• Service through an Internet Service Provider;
• An Online Access ID and Password for each Authorized Representative, and
• A computer, Internet access and current version of Internet Explorer and 256 bit SSL (Secured Sockets Layer) encryption capability.

You may use ExecuBanc to:

• Transfer funds among your linked UBM accounts either on a one-time or recurring basis;
• View previous day balance information for your linked UBM checking, loan and/or savings accounts;
• Review transactions for the current statement cycle and transactions from your previous bank statement for up to 30 business days after your statement end date;
• Access your personal accounts;
• Send us e-mail messages and questions regarding your online banking;
• Originate ACH transactions;
• Stop payments, and more.

Use of ACH Manager

This Agreement governs your ability to initiate Credit and Debit Entries via ACH Manager, a Related Service of ExecuBanc, to accounts maintained at UBM and other financial institutions through the Automated Clearing House ("ACH") pursuant to the rules of the National Automated Clearing House Association ("NACHA"). It also defines our willingness to act as an Originating Depository Financial Institution with respect to such Entries as set forth below:

NACHA Operating Rules

The NACHA Operating Rules, applicable to ACH transactions, have been separately provided to you. You agree to comply with and be subject to the applicable NACHA Operating Rules, as amended from time to time. Your specific duties and responsibilities set forth in this Agreement shall in no way limit this undertaking. All undefined capitalized terms used in this Addendum shall have the meanings given them in the Operating Rules.

Maintaining Your Settlement Account

You agree to properly maintain a Settlement Account with UBM, to comply with the procedures and regulations governing these accounts, and to pay any fees associated with the use or maintenance of these accounts.

1. 1. You will maintain in your Settlement Account, as of the settlement date, immediately available funds sufficient to cover all Entries initiated by you, unless we require you to Pre-fund Entries.
   2. You authorize us, without prior notice or demand, to debit your Settlement Account on the settlement date in the amount of each Entry.
   3. You also authorize us, without prior notice or demand, to debit your Settlement Account for any other amount payable under this Agreement and to credit the Settlement Account for any amount payable to you.
   4. Settlement of all Entries will be made to your account on the posting date, either by crediting or debiting your account for the total amount of readable Entries processed.
   5. Your total ACH Entries outstanding at any point in time will not exceed your approved ACH Exposure Limit that will be separately provided to you and may be amended from time to time.
   6. You agree to immediately provide sufficient available funds to indemnify UBM if any debit Entry is rejected after you have withdrawn the funds made available as a result of a debit Entry or if any adjustment relating to any debit Entry is received by us.
   7. You agree to grant UBM a security interest in all your property in our possession to secure payment of your obligations under this Addendum.

Origination of ACH Entries

You agree to abide by our procedures and deadlines for originating Entries that may change from time to time. You agree to conform all Entries to the format, content, and other specifications contained in the NACHA Operating Rules.

1. 1. You agree to obtain a signed Authorization Agreement from your own employees and customers permitting you to initiate Entries to your employees´ and customers´ accounts at a Receiving Financial Institution. You agree to retain the original or a copy of each such authorization for a period of two (2) years after revocation or termination of such authorization and to provide a copy of each authorization within a reasonable time to us.
   2. We will notify you (by e-mail or standard mail) of all Notifications of Changes received by UBM related to Entries transmitted by you no later than three (3) business days after we receive them. You agree to make reasonable efforts to correct the information prior to your next ACH transmission to us.
   3. You may process your ACH by selecting the File Transfer Template and browsing for your ACH file. Each Template may only be submitted once daily. Additional Templates are required to be set up by UBM’s Online Support Team.
   4. We process ACH files continuously during the day. You may submit corrections, reversals or changes of ACH entries to us telephonically on the day the original information was scheduled for processing. We will make our best efforts to reverse an ACH Entry if we receive your request telephonically at (800) 421-2588 and press option 2 in a reasonable time prior to the release and if your request contains all of the required information. We may request that you provide additional written confirmation.
   5. If you discover an erroneous Entry after 3:00 PM Central Standard Time on the day the Scheduled Information is scheduled for processing, you should contact our Online Support at (800) 421-2588 and press option 2. Consistent with the Rules, we will use our best efforts on your behalf to cancel the erroneous information. You agree to indemnify us and save us harmless from any and all claims, demands, liabilities or expenses resulting directly or indirectly from our actions.
   6. No later than one business day after the business day of receipt, we will contact you by telephone and will send a notice electronically or by mail of a returned debit Entry for more than $2,500 or a returned credit Entry. We have no obligation to retransmit a returned Entry to the ACH.

Security Procedures

You agree to designate Authorized Representatives to act on the your behalf, who shall have the authority to authorize all actions necessary in the preparation and generation of your Entries. You agree that we shall not be under any duty to inquire as to the authority or propriety of any instructions given to us by you or any of your employees and we shall be entitled to rely upon all ACH instructions conveyed to us, however we may require verbal or electronic verification of ACH files sent before processing.

We shall be entitled to act upon the instructions of any person whom we reasonably believe to be your Authorized Representative, whether or not you have authorized such instructions. We shall not be liable for any loss, cost, expense or other liability arising out of any such instructions.

ACH Exposure Limit Documentation

In the event services requested by you may result in credit exposure to UBM, we may limit our exposure by transaction volume or dollar amount and may refuse to execute transactions that exceed any such limit. You agree, when requested by us, to provide financial information and statements and other documentation that we may request to evaluate our credit exposure and your credit-worthiness.

Pre-funding

From time to time, we may, in our discretion require that you irrevocably make available to us, in actually and finally collected funds, the total amount of all ACH Credit originations prior to the time we process the items (to "Pre-fund"). You may Pre-fund your credit originations by transfer from another depository institution, or by maintaining a sufficient balance of actually and finally collected funds in your account. Unless you indicate that you will Pre-fund in another way and actually do so, you authorize us to deduct from your account the amount needed to Pre-fund the ACH credits prior to processing the items.

If you fail or refuse to Pre-fund the full amounts of your ACH credits in a cycle, we may, at our discretion, refuse to process items that have not been Pre-funded. If you only partially Pre-fund the amount of your ACH credits and you do not indicate which items have been Pre-funded, we may, in our sole discretion, determine which items shall be considered to have been Pre-funded, or may refuse to process all items.

If you Pre-fund the ACH credits, your obligation to settle in respect of the Pre-funded ACH credit items up to the amount of the Pre-funding shall be automatically satisfied and discharged and replaced by an irrevocable obligation of UBM to settle for the Pre-funded items on the settlement date.

Cancellation

You understand that you may cancel your use of ACH Manager at any time by notifying us via e-mail or standard mail. This will cancel any ACH services you have agreed to but will not terminate your Accounts with UBM.

UBM may cancel this Agreement and terminate your use of ACH Manager for any reason at any time. We will try to notify you in advance of such cancellation, but we are not obligated to do so.  

Limit of UBM and Other Providers´ Responsibility

UBM agrees to make reasonable efforts to ensure full performance on all ACH transactions. We will be responsible for acting only on those instructions that are actually received and cannot assume responsibility for malfunctions in communications facilities not under our control that may affect the accuracy or timeliness of messages you send. UBM is not responsible for any losses or delays in transmission of instructions arising out of the use of any participating financial institution. We are not responsible should you give incorrect instructions or if your payment instructions are not given prior to published cutoff times.

If a third party sends ACH Entries to us on your behalf, you acknowledge that said third party is your agent and you agree that you shall require any such third party to comply with the provisions of this Agreement.

You agree to indemnify each participating financial institution, NACHA, and the Federal Reserve Bank from all claims, demands, liabilities or expenses resulting from any failure on your part to exercise reasonable care in the creation of or presentment of Entries, or to comply with any of the provisions of the Operating Rules.

Any information you receive from UBM is believed to be reliable. However, it can only be provided on a best-efforts basis and is not guaranteed. We are not liable for any deficiencies in the accuracy, completeness, availability or timeliness of such information or for any investment or other decision made using this information.

Except as provided in this Agreement and in the absence of negligence on the part of UBM, neither UBM, nor any participating financial institution is responsible for any direct, indirect, special, incidental or consequential damages arising in any way out of the use of ACH.

Customer Service

If you need assistance with ACH Manager, or if you need to communicate with us, you may contact our Online Support at (800) 421-2588 and press option 2 .

You agree that we may record the conversations our employees have with you. We may do this from time to time to monitor the quality of service and accuracy of information our employees give you, and to ensure that your instructions are followed.

Our Online Support can help resolve ACH problems but they are not authorized to waive any provision of this Agreement.

Electronic Funds Transfers

ExecuBanc, in conjunction with ACH Manager, enables you to transfer funds to or from your UBM Accounts. The Electronic Funds Transfer Act provides you with certain rights and responsibilities with respect to certain of these transfers, commonly referred to as an Electronic Funds Transfer (hereafter “EFT”). Such rights and responsibilities are fully described in our Electronic Funds Transfer Disclosure that has been separately provided to you. You can also click here on EFT Disclosure for online access.

We will initiate properly authorized and completed Funds Transfer Requests, as defined by UCC 4A (subject to funds availability) communicated to us online or telephonically on the date requested provided the request is received by us prior to the posted online cutoff time and provided the request includes all required information. We may make payments solely on the basis of the account number provided as proper identification of the intended beneficiary.

We shall not be liable for any delay or refusal to honor instructions for a transfer or related act if in good faith we are unable to satisfy ourselves that the instructions are given by an authorized employee. Our failure to verify or authenticate the transactions shall not be evidence of any failure to exercise reasonable care or good faith. If you did not authorize a payment order, the applicable provisions of UCC 4A will govern liability.

We agree to make reasonable efforts to complete all fund transfers as requested. We will be responsible for acting only on those instructions actually received by us and cannot assume responsibility for malfunctions in communications facilities or acts of others not under our control that may affect the accuracy or timeliness of messages you send. We are not responsible if you provide incorrect instructions or if your instructions are not received prior to our published cutoff times.

You have no right to cancel or amend a transfer after we execute it. We may attempt to revoke an order that has not been executed if the request is received in a time and manner that gives us a reasonable time to act upon it. However, we make no warranty as to our ability to revoke or cancel a transfer once made. You agree to hold us harmless against claims of third parties when you revoke or cancel any Funds Transfer instructions.

Stop Payment Request

We will accept online requests from an authorized employee to stop payment on any check, except for cashier’s checks, official checks or other cash equivalent items. We will process requests received prior to the posted cutoff time on the same Business Day received. Requests received after the posted cutoff time will be processed on the next business day. We must receive a stop payment request at a time that will give us a reasonable opportunity to act on it prior to payment of the item. Generally, stop payments are not processed until the cutoff time or later on that business day.

Stop Payment requests are not effective if, either before or within 24 hours of when the stop payment order was placed, we have already cashed the item or become otherwise legally obligated for its payment. Stop Payment request are processed by computer.  We will assume no responsibility if any information provided is incorrect or incomplete that would cause the check to be paid (i.e. incorrect check number, amount, account number or date). Once placed, the stop payment order will remain in effect for six months from the date when it was authorized.  An authorized business representative may renew the Stop Payment order for an additional six-month period when the expiration date arrives.  You are responsible for monitoring the expiration of Stop Payments.  No notice will be provided to you that a Stop Payment is expiring. A fee will be charged for each stop payment and extension of a stop payment.

In order to cancel a stop payment, an Authorized Representative is required to fax or deliver a written request to UBM. Stop payments cannot be canceled via e-mail.

LIABILITY

Your Responsibility To Notify Us

Call us IMMEDIATELY at (800) 421-2588 and press option 2 if you believe that any Access ID or Password or Token has been lost or stolen, or if you believe someone has transferred or may transfer money from your UBM Account without your permission, or if you suspect any fraudulent activity on your UBM Account.

If your token has been lost or stolen, we will issue you a new token to gain access via ExecuBanc or Remote Deposit.  The cost of the replacement token will be passed on to you and be debited to your main UBM account.  The amount we charge for the replacement token will be our true cost for acquiring the token.

Contact by UBM or Affiliated Parties

No UBM employee will contact you via e-mail or phone requesting your online Access ID or Password. If you are contacted by anyone requesting this information please contact us immediately.

Our Liability

Our liability to you is limited to the extent stated in any other Account and/or loan agreements, notices, and disclosures that are separately provided to you from time to time regarding your UBM Accounts and/or this Agreement. This section explains the complete extent of our liability to you only to the extent that it has not been separately disclosed to you by any of these agreements, notices, or disclosures.

Neither UBM, nor any of its Directors, Employees or Agents make any representations or warranties of any kind regarding the performance or quality of any UBM Online Banking service, including ExecuBanc and its related services as defined in this agreement, or the results that may be obtained from using any UBM Online Banking service.   UBM specifically disclaims any express or implied warranties, including, without limitation, warranties of fitness for a particular purpose, warranties of merchantability or warranties against infringement.

Neither UBM, nor any of its Directors, Employees or Agents shall be liable for any damages or losses, including, without limitation, direct, indirect, consequential, special, incidental or punitive damages, resulting from or caused by the use, or attempted use, of any UBM Online Banking Service, or its content, including, without limitation, losses related to: your use, or inability to use, any UBM Online Banking Service; any errors, omissions or defects in any content; any interruptions or delays in transmission to the UBM Online Banking Service; or computer viruses received by you as a result of your use of any UBM Online Banking Service. In any event, any liability of UBM, its Employees, Agents, Content Providers and Licensors shall not exceed those amounts specifically provided for in the agreement.

 Further, we will not be obligated to honor, in whole or in part, any transaction or instruction which:

• Is not in accordance with any term or condition applicable to the relevant service in this Internet Banking Agreement or your UBM Account Agreement;
• We have reason to believe may not have been authorized by you or any third person whose authorization we believe is necessary, or which involves funds subject to a hold, dispute, restriction or legal process we believe prevents their withdrawal;
• Would violate any applicable provision of any risk control program of the Federal Reserve or any applicable rule or regulation of any other federal or state regulatory authority;
• Is not in accordance with any other requirement of our applicable policies, procedures or practices; or
• We have reasonable cause not to honor for your protection, or ours.

Indemnification

Except to the extent of UBM’s liability pursuant to the terms of this Agreement or any other agreement or notice that otherwise governs your UBM Account, you agree to indemnify and hold us, our directors, officers, employees and agents harmless from any and all loss, liability, claims, demands, judgments and expenses (including attorney’s fees) arising out of, or in any way connected with, your use or misuse of ExecuBanc. This indemnification is provided without regard to whether our claim for indemnification is due to the use of ExecuBanc by you, or your Authorized Representatives.

Corporate and Partnership Authorizations

You represent that each Authorized Representative who has been issued an Access ID and Password or token has general authority from your organization to give instructions within the access capability associated with such Access ID and Password/token (including general authority over the movement of your organization’s funds and over accounts with UBM), all as evidenced by the banking resolution, partnership declaration or other agreements you have provided to UBM, and that UBM has full authorization from your organization to rely and act upon instructions identified by such Access ID and Password or token.

Protecting your Passwords

You agree that we may send notices and other communications, including Access ID and Password or token, to the current address shown in our records, whether or not that address includes a designation for delivery to the attention of any particular individual. You further agree that UBM will not be responsible or liable to you in any way if information is intercepted by an unauthorized person, either in transit or at your place of business. You agree to:

1. Keep your Passwords and tokens secure and strictly confidential, providing it only to Authorized Representatives on your account(s);
2. Instruct each person to whom you give a Password or token that he or she is not to disclose it to any unauthorized person; and
3. Immediately notify us and select a new PIN if you believe an unauthorized person may know a given PIN and have access to a token.

We will have no liability to you for any unauthorized payment or transfer made using your passwords that occurs before you have notified us of possible unauthorized use and we have had a reasonable opportunity to act on that notice.  We may suspend or cancel your Passwords even without receiving such notice from you, if we suspect a Password is being used in an unauthorized or fraudulent manner.

Acknowledgement of Commercially Reasonable Security Procedures

By using ExecuBanc, you acknowledge and agree that this Agreement sets forth security procedures for electronic banking transactions that are commercially reasonable. You agree to be bound by instructions, whether authorized or unauthorized, which we implement in compliance with these procedures, unless you have given us prior notice of possible unauthorized use as described above (and we had a reasonable opportunity to act on such notice).

Limitation of UBM’s Liability

If we fail or delay in making payment or transfer pursuant to your instructions, or if we make a payment or transfer in an erroneous amount which is less than the amount per your instructions, unless otherwise required by law our liability shall be limited to interest on the amount which we failed to timely pay or transfer, calculated from the date on which the payment or transfer was to be made until the date it was actually made or you canceled the instructions. We may pay such interest either to you or the intended recipient of the payment or transfer, but in no event will we be liable to both parties, and our payment to either party will fully discharge any obligation to the other. If we make a payment or transfer in an erroneous amount which exceeds the amount per your instructions, or if we permit an unauthorized payment or transfer after we have had a reasonable time to act on a notice from you of possible unauthorized use as described above, unless otherwise required by law our liability will be limited to a refund of the amount erroneously paid or transferred, plus interest thereon from the date of the payment or transfer to the date of the refund, but in no event to exceed 60 days´ interest. If we become liable to you for interest compensation under this Agreement or applicable law, such interest shall be calculated based on the average federal funds rate at the Federal Reserve Bank in the district where the Bank is headquartered for each day interest is due, computed on the basis of a 360-day year.

Unless otherwise required by law, in no event will be liable to you for special, indirect or consequential damages including, without limitation, lost profits or Attorney’s Fees, even if we are advised in advance of the possibility of such damages.

GENERAL PROVISIONS

Termination

Unless otherwise required by applicable law, UBM may terminate this Agreement and/or your access to ExecuBanc(including all Related Services as defined in this Agreement), in whole or in part, at our discretion at any time. If reinstated, the current terms of this Agreement will control. You may request reinstatement of ExecuBanc by calling UBM at (800) 421-2588 and press option 2.

Assignment

We may assign our rights and delegate our duties under this Agreement to a company affiliated with us or to any other party. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties.

Notices

Unless otherwise required by applicable law, in the event that we are required to provide a notice or other communication to you in writing, that notice or other communication may be sent to you electronically to your email address as reflected in our then current records.

Disclosure Of Information

The circumstances under which we will disclose information about you or your UBM Accounts, has been separately disclosed to you in our Privacy Policy and in other disclosures which have been provided directly to you. Our Privacy Policy may change from time to time and is always available on-line and at our banking locations.

Authorization to Obtain Information

You agree that we may obtain and review your credit report from a credit bureau at any time during the life of this Agreement.

Area of Service

The ExecuBanc service is available through UBM only to businesses both located in and registered to do business in the United States of America.

Venue

Any action at law, suit in equity or other judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts of Polk County located in the State of Minnesota.

Legal Process

If we are served with any notice of lien, attachment, levy, garnishment or other legal process relating to you or your UBM Account, we are authorized without notice to you or any joint Account Holder, except where required by law, to withhold the withdrawal or payment of so much of the funds in your UBM Account that may be the subject of such notice or legal process. We may disburse such amount out of your Account to a court or to such persons as applicable state or federal law either requires or permits because of such powers. We have no liability to you for such withholding or disbursements or for refusal by us to permit withdrawals or payment against your Account because of a court order or other legal process including the return by us of items presented against your Account as unpaid that otherwise would be paid. Any lien, attachment, levy, or garnishment against your Account is subject to our right of set-off as provided in the Agreement unless prohibited by law. You agree to pay our costs and expenses for complying with such legal process, including legal costs and attorney fees, costs of research and copying and administrative fees.

Arbitration

You and we agree that all disputes, claims and controversies between us, whether individual or joint in nature, arising from this Agreement shall be arbitrated pursuant to the Rules of the American Arbitration Association in effect at the time the claim is filed. No act to take or dispose of any property shall constitute a waiver of this arbitration agreement or be prohibited by this arbitration agreement. This includes without limitation, obtaining injunctive relief or a temporary restraining orders. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction located in Polk County Minnesota. Nothing in this Agreement shall preclude any party from seeking equitable relief from a court of competent jurisdiction. The statute of limitations, which would otherwise be applicable in an action brought by a party, shall be applicable in any arbitration proceeding, and the commencement of an arbitration proceeding shall be deemed the commencement of an action for these purposes. The Federal Arbitration Act shall apply to the construction, interpretation and enforcement of this arbitration provision.

Governing Law

This Agreement will be governed by, construed and enforced in accordance with federal law and the laws of the State of Minnesota that govern and are applicable to your UBM Account.

FEES

Telephone and ISP Charges

You will be responsible for any telephone charges that you incur and any fees charged by your Internet Service Provider when you use ExecuBanc.  We reserve the right to charge for ExecuBanc access and associated services.