Welcome to BBVA USA, Member FDIC. This booklet contains your deposit account agreement and certain additional disclosure information. Please read this information carefully and keep it with your other financial records.
This Agreement covers any type of non-consumer deposit account (as defined below) you may have with us now or in future. By opening your account, by conducting any transaction involving your account, or by maintaining your account after receipt of this Agreement, or by obtaining services or products relating to this Agreement or your account, you agree to the terms of this Agreement. This Agreement incorporates, by reference, your signature card, your Relationship Summary form, the Account Terms & Conditions and any supplemental provisions we may provide concerning your account. This Agreement also includes any new or amended provisions and disclosures we may provide concerning your account. All of these documents together are a contract between you and us.
YOUR ATTENTION IS DRAWN TO THE ARBITRATION AND WAIVER OF JURY TRIAL PROVISIONS IN SECTION 2. IF A DISPUTE ARISES BETWEEN US, THEN YOU OR WE MAY REQUIRE THAT IT BE RESOLVED THROUGH ARBITRATION, RATHER THAN THROUGH A TRIAL.
Spanish Language Preference: If you express a preference for Spanish as your preferred language for communication with us, we may not be able to accommodate this preference at all of our branches or in the case of any particular product and service. Where we can accommodate Spanish as your preferred language, communications in Spanish are provided as a courtesy only, and English will be the language controlling and governing your banking relationship with us. The English version of this Agreement, as well as the English versions of any other account documents that may be available in Spanish, shall be the official, governing account documents. However, as a courtesy, at your request, and for your convenience only, we may, at account opening and thereafter, provide you with unofficial Spanish translations of the official English versions of certain account documents.
The following terms and definitions apply when used in this Agreement. Terms used in this Agreement but not defined below shall have the meaning assigned to them in the Uniform Commercial Code. References to the Uniform Commercial Code are to the Uniform Commercial Code in effect in the state where we maintain your account.
Account or Deposit Account. Any type of account used primarily for business, commercial, or any other non-consumer purpose to which funds may be deposited. Time deposits are excluded from this definition and are not covered by this Agreement.
Account Owner or Owner. Each person named in our records as an owner of an account.
ATMs. Automated teller machines.
Authorized Agent. Any person who has signed a signature card, any other person who is authorized by this Agreement, any resolution, or otherwise to access and/or use the account, and any person who has been permitted by you or another authorized agent to act on your behalf in dealing with us. You agree that we may, in our sole discretion, not honor any power of attorney, terminate our acceptance of a power of attorney at any time, and/or restrict the types and dollar amount of transactions an authorized agent may conduct.
Available Balance. The balance of funds in your account that is available for immediate withdrawal. Unlike the posted balance, the available balance reflects holds placed on your account, including the restrictions described in the Funds Availability Disclosure included with this Agreement. Your available balance may be more or less than the amount of your posted balance, but does not include any credit available under any BBVA USA Overdraft Protection Line of Credit you may have.
Business Days. Although many of our branches are open on Saturdays, for the purposes of this Agreement, our business days are Monday through Friday, excluding Federal holidays.
Dormant Account. An account will be considered dormant if, for one year or more in the case of checking and NOW accounts (two years or more for an account maintained in Florida), or for two years or more in the case of savings and money market accounts (one year or more for an account maintained in California or Texas), (a) no customer-initiated transaction activity has been conducted on the account, (b) no correspondence regarding the account has been received by us, and (c) no account owner has otherwise indicated an interest in the account. Recurring ACH credits (i.e., Direct Deposit) are considered to be automatic and, therefore, are not considered to be customer-initiated transactions for this purpose.
Frozen Account. An account where all posting activity is suspended or is allowing only credits or debits to post.
Item. A check, substitute check, draft, withdrawal order, payment order or other similar instrument, order or instruction, whether oral, written, or electronic either for the credit of funds to your account or for the payment of funds from your account. Items include debit and credit point- of-sale, ATM, and debit card transactions.
Posted Balance. The balance of funds in your account based solely on items that have been posted as credits or debits to your account. Unlike the available balance, the posted balance does not reflect any holds placed on your account. Your posted balance may be more or less than the amount of your available balance, but does not include any credit available under any BBVA USA Overdraft Protection Line of Credit you may have or holds based on transactions you initiated.
Person. Any natural person, organization or entity, including a corporation, agency, estate, trust, partnership, proprietorship, cooperative, LLC, or association.
Service Charges. Any charge, fee, or similar amount due to us, whether for a service we may provide or for a particular condition or status of your account or any item relating to your account, which has been disclosed by us in this Agreement or in the schedule of service charges incorporated into this Agreement, as amended from time to time. Other charges, fees, and similar amounts due to us, but not disclosed in this Agreement, may apply under other agreements you may have with us.
Substitute Check. A paper reproduction of an original check that (1) contains an image of the front and back of the original check; (2) bears a MICR line containing all the information appearing in the MICR line of the original check at the time the original check was converted to an electronic image; (3) conforms in paper stock, dimension and otherwise with industry standards; (4) includes a legend stating, “This is a legal copy of your check. You can use it the same way you would use the original check”; and (5) is suitable for automated processing in the same manner as the original check.
We, Our, Us, BBVA, BBVA Compass or BBVA USA. BBVA USA, Member FDIC, or any other affiliate bank of BBVA USA Bancshares, Inc. For the purposes of the Section of this Agreement entitled “Dispute Resolution” only, these terms also include the directors, officers and employees of BBVA USA and its affiliates.
You, Your and Yours. The account owner(s) and all authorized agents.
Arbitration: Either you or we may ask to settle disputes by arbitration. Arbitration is a way of working out disputes without going to court. If you or we ask for arbitration, we would all meet with a person called an arbitrator. An arbitrator is like a referee or a judge. The arbitrator will listen to what you and we have to say. The arbitrator will decide who is right. The arbitrator’s decision is called an award. The party who wins the award can take it to any court that could have heard the dispute and get an official judgment.
Please read the rest of this section carefully. It explains how arbitration works.
Some Legal Rights May Not Be Available in Arbitration: After any party asks for arbitration of a dispute, neither you nor we can ask a court to hear that dispute.
There will be no jury trial of that dispute. You cannot be part of any class action relating to that dispute. The right to get information from each other and other procedures may be more limited in arbitration than in court. With a few limited exceptions, the arbitrator’s award will be final and unchangeable. Other rights that you or we would have in a court also may not be available in arbitration.
What Disputes Are Covered: Any dispute that arises from or relates to this Agreement, your Account and any transaction involving the Account or any service or product related to your Account will be settled by arbitration unless it is described below in “What Disputes Are Not Covered.”
This means that disputes about the following are covered:
It doesn’t matter whether the dispute is based on contract, fraud, tort, intentional tort, statute, regulation, constitution, common law, equity or otherwise. It also doesn’t matter when the dispute began (whether before this Agreement, now or in the future). This arbitration provision will continue to apply after this Agreement ends and/or after you or we close the Account.
What Disputes Are Not Covered: This arbitration provision does not cover any dispute:
No Class Disputes: You cannot join together in a dispute with anyone other than people who use your Account. Even if other people have disputes similar to a dispute that you or we ask to arbitrate, those people and their disputes cannot be part of any arbitration between you and us. You cannot arbitrate any dispute on a class action, private attorney general or other representative basis. Only a court, and not an arbitrator, may decide whether this provision prohibiting class disputes can be enforced.
Who Will Arbitrate: The American Arbitration Association (“AAA”) or JAMS ADR (“JAMS”) may arbitrate any dispute, or you and we may agree upon a different arbitrator. For more information about arbitration, contact the AAA (www.adr.org or 1-800-778-7879) or JAMS (www.jamsadr.com or 1-800-352-5267). If for any reason the AAA or JAMS is unable or unwilling to arbitrate, or you and we cannot agree on an arbitrator, we will use another national or regional arbitration group.
The number of arbitrators will depend on the total dollar amount of all disputes by both you and us. If the total is $250,000 or less, one arbitrator will hear the dispute(s). If the total is over $250,000, three arbitrators will hear the dispute(s).
Each arbitrator must be an active member in good standing of the bar for any state in the continental United States, and either: (a) actively engaged in the practice of law for at least 5 years or (b) a retired judge.
What Rules Apply: The arbitration of any dispute will be conducted according to the rules of the arbitrator (“Rules”). If an arbitrator other than the AAA is chosen, the Rules of the AAA will be applied to any circumstance that is not addressed by the Rules of the chosen arbitrator. If the total of all disputes is $250,000 or less, we will use any expedited procedures in the Rules. If this Agreement and the Rules say something different, we will follow this Agreement and not the Rules.
How To Start Arbitration: Either you or we may start an arbitration by giving written notice to the other party. At a minimum, this notice must describe the subject of the dispute and the result requested in arbitration by the party giving the notice. If you ask us to arbitrate, you can choose the AAA or JAMS, or suggest another national or regional arbitration group to arbitrate the dispute. If we ask you to arbitrate, we will give you 10 days to choose the AAA or JAMS, or to suggest another national or regional arbitration group. In either case, if you suggest an alternative to the AAA and JAMS, we will work with you to determine if you and we can agree on a different group or arbitrator. If you and we are unable to agree, the arbitration will be conducted by the AAA or, if the AAA is not available, by a similar arbitration group. The party asking for arbitration must file a notice with the arbitration group following the Rules in effect at that time.
When a Party May Ask for Arbitration: You or we may ask for arbitration before or after a lawsuit has been filed. You or we must ask for arbitration within the statute of limitations that would apply to the same dispute in court. If it is too late to resolve the dispute in court, it is also too late to resolve it in arbitration.
What the Arbitrator(s) Must and May Not Do: Each arbitrator must:
Who Pays for Arbitration: There will be costs for arbitration. Contact the AAA or other arbitration group to find out what the arbitration charges will be. You may have to pay some of the arbitration charges unless this Agreement, an applicable law or the Rules say we must pay. If the total dollar amount of all disputes is $50,000 or less, we will pay that portion of the arbitration filing fee that is more than the cost of filing a lawsuit in the federal court where you live. You can ask us to pay some or all of the other arbitration charges you have to pay, but we don’t promise to do as you ask. At the end of the arbitration, the arbitrator(s) will decide who has to pay for any arbitration charges that are greater than those we agreed to pay. The arbitrator(s) also may order us to pay some or all of your attorneys, expert and witness fees. Unless ordered otherwise by the arbitrator(s), each of us must pay for its own attorneys, expert and witness fees, no matter who wins.
Where Will Arbitration Take Place: Any arbitration will take place in the state where we maintain your Account. Or, you and we could agree that arbitration will take place somewhere else.
What Law Applies: This arbitration provision is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act will apply to the construction, interpretation and enforceability of this arbitration provision despite any other choice of law provision in this Agreement.
Other Rights and Remedies: Nothing in this arbitration provision will limit certain other rights you or we may have. This means that you or we could, for example:
If you or we do any of these things or take part in any other court case, it does not affect your or our rights under this arbitration provision.
What Happens If Part or All of This Arbitration Provision Cannot Be Enforced: Only a court and not an arbitrator can determine if any part of this arbitration provision cannot be enforced. If a court with proper jurisdiction says that any part of the “No Class Disputes” subsection above (which prohibits arbitration of class disputes) cannot be enforced, then none of the arbitration section in this Agreement will apply, and this section will be considered deleted from the Agreement. If a court with proper jurisdiction says that any other part of this arbitration provision cannot be enforced, then the rest of this arbitration subsection still will apply, including the “No Class Disputes” subsection above.
Waiver Of Jury Trial: This provision limits your rights to a jury trial. You should review this section carefully. If you and we have any dispute related to this Agreement, your Account, or any transactions involving your Account or any service or product relating to your Account and (i) neither you nor we seek to compel arbitration of the dispute, or (ii) some or all of the arbitration section is unenforceable and the dispute will be resolved in court, then you and we agree voluntarily and knowingly to waive any right each may have to a jury trial to the fullest extent permitted by law.
Attorneys’ Fees. In any action between you and us in court, the prevailing party will be entitled to receive from the other party an amount equal to the reasonable attorneys’ fees the prevailing party incurred in bringing or defending the court action.
Identification. To help the government fight the funding of terrorism and money laundering activities, federal law requires us to obtain, verify and record information that identifies each person who opens an account. For these and other purposes, when you apply for an account, we will ask for information that will allow us to identify you. We may also ask for driver's license or other identifying documents for your business, authorized signers, account owners, and your officers, directors, beneficial owners, controlling shareholders and others.
Our Relationship. Unless otherwise expressly agreed in writing, our relationship with you will be that of debtor and creditor. No fiduciary, quasi-fiduciary or other special relationship exists between you and us. Any internal policies or procedures that we may maintain in excess of reasonable commercial standards and general banking usage are solely for our own benefit and shall not impose a higher standard of care than otherwise would apply in their absence. There are no third- party beneficiaries to this Agreement.
Assignment of Account. No pledge, assignment, or other transfer of any account, whether by purchase and assumption, assignment, sale, merger, acquisition, gift or otherwise, shall be binding on us unless acknowledged by us in writing. Unless we agree otherwise in writing, the account will remain subject to our rights of set off even after we receive notice of the transfer. Accounts are transferable only on our records. We reserve the right not to acknowledge or accept any attempted transfer of an account. We are not required to accept or recognize an attempted assignment of your account or any interest in it, including a notice of security interest or deposit account control agreement, except as required by law. If you have granted to us a security interest in your account to secure debt you owe to us, we will be deemed to have control of your account under the Uniform Commercial Code.
Authority. You agree that we may honor and rely upon the execution, delivery, and/or negotiation of any item or document by any authorized agent regardless of the necessity or reasonableness of such action, the circumstances of the transaction effected thereby, the amount of the transaction, the source or disposition of any proceeds, and regardless of whether the relevant item(s) and/or document(s) are drawn to the individual order or tendered in payment of an individual obligation of any authorized agent or otherwise. With respect to such actions, you agree you are estopped to deny the authenticity, validity, binding effect, and authorization of any such action unless you previously have delivered to us a signed writing and we have accepted that document in writing limiting your responsibility for any of the foregoing.
Management of Your Account. You agree to maintain safeguards to ensure that there is dual control over all your financial matters, including without limitation, that the individuals empowered to sign, endorse, execute, and/or deliver items or documents do not have the authority to reconcile and are not permitted to reconcile the transactions effected thereby. You specifically agree to assume the risk of unauthorized acts by your authorized agent(s) and any loss, costs, or expenses caused or incurred thereby if you do not maintain adequate control of and properly manage your account. We may rely conclusively on the validity and binding effect of any item signed, drawn, endorsed, executed, delivered, presented, issued, or otherwise transferred by you or any authorized agent, and you are expressly estopped from denying the validity of any such item and binding effect and authorization of any such action. We shall be under no duty to investigate the authority for the execution and/or delivery of any item or document or the application of any proceeds thereof.
Authorization to Pay and Debit the Account. You authorize us to pay or withdraw funds from the account, without any notice to you, on the order of any account owner or authorized agent. You authorize us to honor orders to pay or withdraw funds received by us from any of these persons in writing, orally, or electronically (including, but not limited to by telephone, VOIP, mobile phone, etc.).
Processing and Posting Order. You authorize and agree that we may, in our sole discretion, determine the order that we process and post credits, debits and holds to your account. You also authorize and agree that the order and/or manner in which we process and post credits, debits and holds may vary by product, service, account type or type of transaction. You also authorize and agree that we are allowed to pay or authorize some credits, debits and holds, and decline or return others, in any order we deem appropriate. The order in which we post credits, debits and holds to your account may not be the same as the order in which you make the withdrawals from or deposits to your account. You agree that any order in which we process and post credits, debits and holds to your account will not be an abuse of discretion. If two or more items are presented for payment from your account on the same day, we may pay or charge the items to your account in any order without regard to any contrary instructions from you, even if paying a particular item or items causes the available balance for your account to be insufficient to pay one or more other items that otherwise could have been paid, which may result in the occurrence of additional or other service charges that otherwise may not have occurred. We may pay items drawn on us, debit your account for any service charges and other amounts that you owe us under this Agreement or otherwise, and we may exercise any rights of set off we may have against the account before we pay any other item.
If an item was initiated at a point-of-sale terminal or is a VISA or ATM transaction, you agree that we may charge the amount of the item to your account or place a hold on your account in the amount requested by the merchant immediately upon authorization of such transaction, even though we have not then actually received the item for payment. We will make payment for a transaction only after the actual transaction is presented to us physically or electronically. Each such hold will reduce the Available Balance in your account by the amount of the hold.
Signatures; Facsimile Signatures. We may rely on each signature reflected in our records for your account, including signatures on prior authorized items, in all transactions connected with the account. We may, but are not required to, act upon instructions received by fax transmission, voice mail or e-mail. As such, it may not be appropriate to use these methods of communication
If you need to reach us with time-sensitive information. If you use a facsimile signature or other mechanical or electronic device for signing or authenticating items drawn on your account or for other purposes, you assume the entire risk that the facsimile signature or device may be used improperly or by an unauthorized person. We will have no liability to you or any other person for paying items drawn in this manner by any unauthorized person or by any person who exceeds his or her authority to do so, and we may rely on all of these type items presented to us. We will not reimburse you or any other person for items drawn in this fashion by an unauthorized person or by any person who exceeds his or her authority to do so, and we may honor all of these type items presented to us. You agree to indemnify and hold us harmless from all losses resulting from our honoring an item in any instance in which the item bears or purports to bear a facsimile signature resembling a signature reflected in our records for your account, regardless of by whom or by what means the actual or purported signature was affixed to the item.
Items Not Bearing a Signature. If you give information about your account to a third party who represents to you that, in the ordinary course of its business, it will present unsigned items, remotely created checks or demand drafts (i.e., items which do not bear your actual signature, but purport to be drawn with your authorization) for payment or initiate transfers from your accounts, then any item initiated by that person will be deemed authorized by you even though they do not contain your signature and may exceed the amount you authorized to be charged and may be charged to your account. This provision shall not obligate us to honor such items. We may refuse to honor such items without cause or prior notice, even if we have honored similar items in the past. You assume the entire risk that the information you furnished may be used improperly or by an unauthorized person. We will not reimburse you or any other person for items drawn in this fashion or by an unauthorized person or by any person who exceeds his or her authority to do so, and we may honor all of these type items presented to us.
Check Endorsement Standards. If you deposit checks into your account, you are responsible for the condition of the back of the check when it is deposited. The back of the check is used during the check collection process to record the identification of banks processing the check. Most of the back of the check is reserved for bank use. You agree that the endorsement of the check must be contained in the payee endorsement area that is limited to 1½ inches from the trailing edge of the check on the back. The trailing edge of the check is the left side of the check looking at the check from the front. Any writing, stamp or marking outside of the payee endorsement area may delay the proper return of an unpaid check you have deposited. You agree to indemnify us from any loss or liability, including attorneys’ fees, that may be caused by your failure to adhere to these endorsement standards or any other endorsement standards of the Federal Reserve System.
Notices and Periodic Statements. If we have a deliverable address on file for you, we will mail, or otherwise make available to you, periodic statements for your deposit account at approximately monthly intervals unless we specify to you another interval period when you open your account or thereafter. The periodic statement will describe each item by item number (where appropriate), amount, and date of debit or credit. For certain types of accounts, the periodic statement may be accompanied by the items and/or a facsimile of those items listed on the statement, unless the item or an image of the item is unavailable for any reason (for example, when an item is electronically presented (or re-presented) for payment against your account). If we comply with the foregoing provisions of this section, you agree that the statement and items all have been made available to you in a reasonable manner.
Periodic statements, canceled checks (if applicable to your account) and written notices of dishonor or return of unpaid deposited items, or any other notice or communication, may be mailed or e-mailed to you at the address shown in our records or a forwarding address for you if one is on file with the U.S. Postal Service. However, we will not mail any account information to an address that the U.S. Postal Service has informed us is “undeliverable” or otherwise invalid. We use reasonable efforts to maintain the first statement(s) returned as undeliverable for sixty (60) days, or such longer period of time as may be required by applicable law, after which time we may dispose of the statement and original items. However, we retain printable versions of your account statements for seven (7) years, or longer periods as may be required by applicable law. You agree to give us written notice of any change of your address. Periodic statements, and written notices of dishonor or return of unpaid deposited items, or any other notice or communication may be delivered to you electronically if you have agreed to receive such notices and communications electronically. You agree to notify us promptly if you do not receive your statement by the date you normally would expect to receive it. Any notice mailed to your last address appearing in our records will be effective and binding on you for all purposes. We may, but are not required to, change the address for you in our records if the U.S. Postal Service notifies us of a new address for you, and you waive any and all claims against us that arise in connection with any mail forwarded to you or sent to an address for you supplied to us by the U.S. Postal Service. We may make statements, canceled checks (if applicable to your account), notices or other such communications available to you by holding all or any of these items for you, or delivering all or any of these items to you, in accordance with your request or instructions. If we hold them at your request or because you fail to provide us with a current address, they will be deemed delivered to you when they are prepared (for held statements), mailed or otherwise made available to you. In the event that you have requested or instructed us to make canceled checks or other items available to you by retaining them, whether pursuant to this Agreement or otherwise, we will send any such item or a copy of the item (if available) to you upon your request and upon payment of our service charge for such service.
Telephone Calls: Calling, Monitoring and Recording. By providing us with your home telephone number or cellular telephone number, you authorize us, and our affiliates to contact you using any Automatic Telephone Dialing System, Prerecorded Voice, Voicemail, or Messaging Service. In addition, you agree that we may also contact you at any telephone number that we obtain for you in the future using any Automatic Telephone Dialing System, Prerecorded Voice, Voicemail, or Messaging Service. As examples, we may place calls to you about fraud alerts, deposit holds, and amounts you owe us (collection calls) on your accounts. This express consent applies to each telephone number that you provide to us now or in the future. You agree to notify us promptly if any of your contact information changes. Calls and messages may incur charges from your communications provider.
You consent and authorize us to monitor, and to record, telephone conversations and other electronic communications you have with us and with our representatives for reasonable business purposes, including security and quality assurance. We will not remind you that we may be monitoring or recording a call at the outset of the call unless required by law to do so.
Wire Transfers and Other Fund Transfers. When we accept a wire transfer payment order instructing payment to you or your account, we will notify you of our receipt of payment by indicating the amount of the payment in your periodic statement. If the payment order does not specify an account, we may deposit the payment into any account that you maintain with us. Your periodic statement will be the only notice of receipt that we will provide you, and no interest will be paid on the wire transfer payment unless the account into which the payment is deposited otherwise pays interest. You agree to pay all service charges for wire transfer services stated in our schedule of service charges, as amended from time to time. Payment orders will not be accepted until executed by us. We reserve the right to refuse to accept any payment order. If there is ever any inconsistency or conflict between the account number and the name of a recipient on an instruction or payment order, we may rely exclusively on the account number and bank identification number contained in a payment order rather than the name. If you give us a payment order that is erroneous in any way, you agree to pay the amount of the order whether or not the error could have been detected by any security procedure we employ. Amendments to a payment order must be provided to us at least three business days prior to our execution of the payment order. We may record any telephone conversations or data transmissions that initiate or amend payment orders. The exchange rate on a return payment order shall be the rate in effect at the time the return is received.
Service Charges. You acknowledge that you have been provided our current schedule of service charges and, if applicable, interest rates for your account. Some services are negotiated separately and may be subject to other written agreements with us. You agree to pay us the service charges in effect from time to time. You agree that such service charges may be changed by us from time to time upon notice to you or your authorized agent, given either by our posting the revised schedule in each of our branch offices or web site for a period of not less than ten (10) calendar days prior to the effective date of such change or mailing, e-mailing or otherwise delivering, providing or making available to you a copy of the revised schedule not less than ten (10) calendar days prior to the effective date of such change. You agree that we may deduct from your account, even if your account is dormant, abandoned, or unclaimed, and without any further notice or demand, all service charges applicable to your account, as well as charges for the purchase of checks, drafts, and other products ordered by you or your authorized agent from or through us. You agree that if your account is closed during a statement cycle, at account closing, we may charge all service charges not yet posted to your account for that statement cycle. We shall not be liable for failing to pay any item presented against your account if the available balance is insufficient to pay the item, even if the insufficient available balance results solely from debiting these service and other charges from your account.
Insufficient Available Balance and Overdrafts. If your available balance is insufficient to pay the total amount of items presented against your account, we may, at our option, return any of the items unpaid or pay any or all of the items, even though payment will cause an overdraft of your account. We may return any item at any time if your available balance is insufficient to pay that item, even if we previously have permitted overdrafts. You are not entitled to rely on any prior act by us with respect to your account. Our election to pay overdrafts does not establish a course of dealing between you and us or modify the terms of this Agreement. You agree that, if your available balance is insufficient to pay any item presented against your account, you promptly will pay both our service charge for handling and processing that item and the amount of any overdraft without further notice or demand. Your failure to pay these amounts promptly may result in additional service charges to your account. You agree that we may use subsequent deposits and other credits to the account to cover any overdraft existing in your account. Each account owner will be jointly and severally liable for the charges regardless of which account owner is responsible for their occurrence. In the event you fail to pay any amounts that you owe us relating to the account, including but not limited to, service charges and/or overdraft charges, you agree to pay all reasonable costs and expenses incurred by us in collecting such accounts, including without limitation, attorney’s fees, collection agency fees, and court costs. These charges are imposed on any withdrawal which causes an overdraft, including but not limited to items created by check, in- person withdrawal, ATM withdrawal, electronic withdrawals, wire transfers, ACH debits, etc.
Inter-Account Transfers. If you are an owner of two or more accounts that we allow to be linked, you may, by separate agreement, designate one of those accounts as a secondary account from which funds may be transferred to cover items (individually and collectively called a “covered item”) presented for payment out of another, primary account. If you make this designation, either at the time you open your accounts or later, and if the available balance in the primary account is insufficient to pay the amount of any covered item at the time of presentment, then we will automatically transfer from the secondary account into the primary account the specific amount necessary to pay that covered item. You agree to pay the currently applicable service charge each time funds are transferred out of your secondary account and into your primary account to pay a covered item. We will have no obligation to pay any covered item if the combined available balances in the secondary account and primary account at the time the covered item is presented to us for payment are insufficient to pay the covered item, provided however, in our sole discretion, we may either: (i) transfer the available funds in your secondary account to the primary account and pay the item, although it may cause an overdraft subject to the provisions regarding overdrafts discussed above; or (ii) not transfer the available funds from your secondary account to your primary account, and your primary account will be subject to the provisions regarding insufficient funds and overdrafts discussed above. We will have no obligation to pay any covered item if the secondary account is in dormant, inactive, or frozen status. In this situation, if no funds are transferred, you will not be assessed any service charge for the transfer, but your primary account will be subject to the provisions regarding insufficient available balances and overdrafts discussed above.
Stop Payment Orders. Except as otherwise stated in this Agreement, you or any authorized agent may request us to stop payment on any item drawn on your account by giving us the information we may request, including the account number, the item number, the date of the item, the payee of the item, and the exact amount of the item, and by paying our stop payment service charge. We will search for your item by computer, so it is essential that all information you give to us be accurate. To be effective, we must receive any stop payment order in time to afford us a reasonable opportunity to act. We will confirm your oral stop payment order in writing, and the information included in our written confirmation will be conclusively presumed to be correct unless you notify us within fourteen (14) days of the date of the confirmation. Confirmed stop payment orders will be continued in effect for a period of two (2) years from the date of the initial oral stop payment order or such other period of time as required or under applicable law, regulation or rule (including, but not limited to, the UCC as enacted under any applicable law, regulations issued by the Federal Reserve Board and rules issued by the National Clearinghouse Association). A confirmed stop payment will expire at the end of the two-year period unless you revoke it at an earlier date or renew it in writing for an additional two-year period and pay our stop payment service charge. You may not stop payment on an item if we have verified to the payee that there are sufficient funds in your account to pay such item, or if we have accepted that item by payment or otherwise. Any account owner or authorized agent may place a stop payment order, and we are not required to release a stop payment order unless requested to do so by the account owner or the authorized signer who requested it. You agree to indemnify us and hold us harmless from and against any loss, damages, and expenses (including attorney’s fees) we may incur by reason of our refusal to pay any item upon which you have stopped payment. For stop payment orders on electronic transfers, please refer to the Electronic Fund Transfer Disclosures and Agreement in this Agreement.
Our records regarding your accounts will be deemed correct unless you timely establish with us that there is an error. It is essential that any account errors (including missing deposits), unauthorized transactions, alterations, unauthorized signatures, unauthorized demand drafts or remotely created checks, unauthorized or improperly imaged checks, unauthorized or forged endorsements, forgeries, encoding errors or posting errors (such as debits or credits posted twice, debits posted as credits or credits posted as debits), unauthorized or disputed fees of any kind (collectively referred to as “exceptions”) be reported to us as soon as reasonably possible. Otherwise, we may not be liable for the exceptions. You agree that you will carefully examine each account statement or notice you receive and report any exceptions to us promptly after we make your statement available to you. We will be deemed to have made your statement available to you when we send your statement to you in accordance with the subsection of this Agreement entitled “Notices and Periodic Statements.” You agree to act in a prompt and reasonable manner in reviewing your statement or notice and reporting any exceptions to us. You will have acted in a prompt and reasonable manner if you report any exception to us within thirty (30) days after we send or make the statement or notice available to you. If you fail to report exceptions to us within thirty (30) days after we send the statement or notice to you, you agree that we will not be liable to you for any loss you suffer related to that exception and exception and that you cannot later dispute the transaction amounts and information contained in the statement. This means that, if you do not report exceptions to us within thirty (30) days after we send or make the statement or notice available to you, we will not pay you or otherwise be liable for any such disputed amounts or any loss or damages you suffer. This includes, but is not limited to, a waiver of liability (a) for paying any unauthorized or altered item if we exercised ordinary care and paid the item in good faith (and we also suffered a loss, or would suffer a loss if we were to re-credit your account, because of your failure to notify us), or (b) for paying any other item altered or forged by the same wrongdoer if we paid the item in good faith before we received notice of any of these exceptions from you. Except as provided by the Uniform Commercial Code, you also agree that we will not be liable for any exceptions caused by your own negligence. In any case, you agree to promptly repay us any amount credited to your account in error, and you authorize us to debit your account to obtain payment of any erroneous credit. Please refer to the Electronic Fund Transfer Disclosures and Agreement in this Agreement for additional provisions governing unauthorized electronic fund transfers.
If you make your checkbook, your checking account number, your ATM or Debit card, or personal identification numbers and/or security codes available to any third person for the purpose of transacting business on your account, you agree to assume full responsibility for any errors or wrongdoing performed or caused by such third person. You are responsible to us for any actions of such third person, regardless of whether those actions exceed the authority given.
Our maximum liability will never exceed the amount of actual damages proven by you. Our liability will be reduced:
(a) by the amount of the loss that is caused by your own negligence or lack of care;
(b) to the extent that damages could not have been avoided by our exercise of ordinary care;
(c) by any loss recovery that you obtain from third parties (apportioned in accordance with this provision); and
(d) as otherwise limited by this Agreement. We will not be liable for any loss that is caused in part by your negligence if we acted with ordinary care. We will not be liable for incidental, special or consequential damages, including loss of profits and/or opportunity, even if we were aware of the possibility of such damages. You agree to pursue all rights you may have under any insurance policy covering any loss and to provide us with information regarding coverage. Our liability will be reduced proportionately in accordance with your responsibility for any loss, by the amount of any insurance proceeds you receive or are entitled to receive for the loss. If we reimburse you for a loss and the loss is covered by insurance, you agree to assign us your rights under the insurance policy to the extent of our reimbursement, in accordance with this provision. You waive all rights of subrogation against us with respect to any insurance policy or bond.
Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable for any reason, such holding shall not invalidate or render unenforceable any other provisions of this Agreement. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders unenforceable any provision hereof, and to the extent that such waiver is not permitted by applicable law, the parties intend that such provision be interpreted as modified to the minimum extent necessary to render such provision enforceable.
Interest; Interest Reporting. Interest will be paid on interest bearing accounts at the times and at the rates adopted from time to time by us. Generally, interest is credited to your account on the first business day of the following statement cycle, unless otherwise specified in the interest schedule. On each interest payment date, interest will be paid only if, on that date, the ledger balance for the account is equal to or more than the minimum amount required by us in order for you to receive interest on that account. The originally effective interest rates and required minimum ledger balance amounts are shown on the interest schedule provided to you at the time you opened your account. These rates and amounts may be changed from time to time and without prior notice to you (except where prior notice is required by law). The interest schedule is available to you upon request. To the extent required by law, we will report any interest paid on the account to the Internal Revenue Service as having been received by the account owner. We may be required to withhold a portion of the interest payment and remit it to the Internal Revenue Service.
Currency Transaction Reporting. Any transaction or group of transactions on a single day which involves in excess of $10,000 in currency, except those that qualify for exemption under U.S. Department of Treasury regulations, will be reported in a Currency Transaction Report to the Internal Revenue Service in accordance with federal law. Applicable state law(s) may require similar reporting.
Illegal Transactions. You agree that you will not use your account for any transaction that is illegal in the jurisdiction where you live, in the jurisdiction where the transaction is consummated, or in any other jurisdiction affected by the transaction. You agree that it is your responsibility to determine the legality of each of your transactions in all applicable jurisdictions before entering into the transaction. You acknowledge and agree that we have no obligation to monitor, to review or to evaluate the legality of transactions on your account. You also agree that you will not use your account in connection with any Internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction. We reserve the right to return any item that we believe, in our sole discretion, is related to an illegal transaction, an Internet or online gambling transaction or a high-risk transaction. To the fullest extent permitted by law, you agree to pay for any item that you authorized, even if the transaction related to that item is determined to be illegal.
Deposits. We may require a minimum initial deposit to open an account. You may make additional deposits of any amount of $1.00 or more accompanied by a completed deposit slip (unless your deposit is by electronic funds transfer) either in person, by mail, at an ATM, a night depository, or by electronic funds transfer. We may charge for deposits, and we also may refuse to accept for deposit or collection any item you offer for deposit, accept all or any part of a deposit for collection only, or limit the amount that may be deposited. Refer to your fee schedule for applicable charges for deposits. If your deposit is other than cash, for example, checks, we may without prior notice to you, except where prior notice is required by law, place a hold on the account for the amount of deposited items for the approximate period of time it takes us to verify that the items will be paid. During the hold period, interest-bearing accounts will earn interest in accordance with the interest schedule. Items accepted for deposit and drawn on a non-U.S. institution may be subject to a service charge. We may accept an item for deposit to your account from anyone and without questioning or verifying the authority of the person making the deposit. Any item that we cash or accept for deposit may be subject to post-verification and final payment. We may deduct funds from your account if an item is lost, stolen or destroyed in the collection process, if it is returned to us unpaid, or if it was improperly paid, even if you have already used the funds. Cash deposits are also subject to post-verification.
Credit for any item we accept for deposit to your account, including funds that are deposited by electronic funds transfer, is provisional and may be revoked if the item is not finally paid, for any reason, in cash or its equivalent. We may give cash back to any authorized account signer(s) or agent(s) in connection with items payable to any owner, whether or not the items have been endorsed by the owner. If you make a deposit or payment that is not accompanied by instructions indicating how or where it is to be credited, we may apply it at our discretion to any loan or deposit account you maintain with us. We may endorse and/or collect items deposited to your account without your endorsement, but may require your personal endorsement prior to accepting an item for deposit.
If you deposit an item that bears the endorsements of more than one person or persons who are not known to us, we may refuse the item, require all endorsers to be present, or require that the endorsement be guaranteed by another financial institution acceptable to us before we accept the item. Our policy on the availability of deposits for withdrawal is described in the Funds Availability Disclosure portion of this Agreement.
Blue Streak Deposit®, ATM Depositories, Night Depositories and Deposits by Mail (“Depository Options”). We may provide Blue Streak Deposit®, ATM depositories, night depositories and deposit by mail services for your convenience (some depository services are not available to you until such time as you have executed and delivered to us all forms and agreements as we may require at the time you request the service). We are not accountable for deposits made by any of these means until the deposit is actually accepted and processed by our authorized employees and available for withdrawal in accordance with our Funds Availability Disclosure. Deposits made by any of these means will be posted to your account on the date accepted by our authorized employees. Sending cash through the mail is solely at your risk, and all deposits by mail should be sent by certified or registered mail. Any initial or interim credit that you receive with respect to a deposit made through any Depository Option is subject to post-verification by us, and BBVA may make adjustments to your account at any time to ensure proper crediting to your account. You agree to comply with our rules in effect from time to time for making deposits using Depository Options and you agree to use equipment and supplies (e.g., special tamper resistant clear two-pocket disposable bags and envelopes) that conform to our specifications. You agree to exercise due care in using any Depository Options (e.g., by properly sealing depository bags, securing night deposit boxes, etc.). Non-compliance with our rules in effect may result in applicable service charge increases or refusal of the deposit. Our records are conclusive proof of the deposits we receive from you through any of the Depository Options, and in no event will we be responsible for any such deposits that are lost, stolen, or destroyed before actual acceptance by our authorized employees.
US Dollar Cash Deposit Limitations. BBVA will impose limitations on the amount of US dollar cash deposits by non-resident customers. Under this policy, if you are a foreign entity (i.e., the holder of a business, commercial or other account for non-consumer purposes and not a US entity), the aggregate amount of US dollar cash deposits that may be made into your account during any calendar month is limited to $14,000. This limitation will not apply to deposits made by check or other non-cash deposits. At our discretion, we may at any time without prior written notice to you (except where prior notice is required by law) establish or change the aggregate US dollar cash deposit limit by posting the maximum US dollar limit in each of our banking centers. We reserve the right to refuse any US dollar cash deposit that exceeds, or would cause the aggregate of such deposits to exceed, our established aggregate US dollar cash deposit limitations.
Foreign Currencies. Deposits in foreign currencies will be converted to U.S. dollars at the exchange rate in effect at the time of final collection. You will be responsible for verification of any exchange rate information provided by us in advance of final collection. Exchange rates may fluctuate significantly in a short period of time. You bear all exchange risk related to deposits of foreign currency.
Collection and Payment. Items delivered to us for deposit or collection are received by us as your agent for collection and at your risk. We may accept an item for collection only (such as a returned deposited item or an item drawn on a non-U.S. institution) and impose a service charge for attempting collection of the item. In situations where we accept an item for collection only, we are not obligated to give you cash or an official check for the items until the items have been paid.
We are obligated only to exercise ordinary care in handling and collecting items delivered to us for deposit or collection. We shall not be liable for the misconduct, neglect, insolvency, mistake, or fault of other persons or entities, or for loss or destruction of any item in transit or in the possession of others or for loss of use as a result of theft, fire, or other event beyond our reasonable control. If any item deposited to your account is payable by a payor that is not a bank, we may send the item directly to that payor. Items payable through another bank may be sent directly to that bank or to collecting agents who likewise shall have the right to send the items directly to the bank on which they are drawn or at which they are payable. Payment of these items may be accepted in cash or drafts and neither we nor any collecting agents shall be liable for failure to collect such drafts. Each collecting agent is deemed to be your agent. No collecting agent shall be liable for loss arising from any act or omission of another agent.
Check Cashing for Others. You should not use your account to cash checks for others. Although we may make funds provisionally available to you and may take steps to determine whether a check will be paid, you are responsible for any loss that occurs if the check is returned for any reason (e.g., because it is a counterfeit). Our employees cannot promise that checks drawn on or issued by other institutions, including cashier’s checks, will be paid.
Visa® Credits. Any credit transaction (e.g. a merchandise return) on your Visa® Debit Card may show as a pending credit in your transaction history. The pending credit will not be included in your Available Balance until the funds are received and processed by the Bank. See your Debit Card Agreement for additional details.
ACH Credits. Credit for an automated clearinghouse (“ACH”) transfer is provisional until final payment is received by the payee’s financial institution. Until that happens, the party originating the transfer is not deemed to have made payment to the beneficiary, and the payee’s bank is entitled to a refund of the provisional credit. If we give you provisional credit for an ACH transfer, but do not receive final payment, you become obligated to us for the full amount without prior demand or notice. We are not required to give you a separate notice of our receipt of an ACH transfer, unless we have otherwise agreed to do so in writing. If we accept ACH credits to your account, you will receive notice of the credit on your next regular periodic statement. Although we may send notice of a non- ACH incoming funds transfer (e.g., a wire), we assume no obligation to do so. You also can contact your office of account during normal business hours to determine if a transfer has been credited to your account.
Chargebacks. In the event a deposited or cashed item drawn on us (an “on us” item) is determined by us not to be payable for any reason or a deposited or cashed item drawn on any other payor is returned to us for any reason, without regard to whether the other payor returned the item to us before its deadline to do so, we may charge the item (a “chargeback item”) to your account or to any account of which you are an owner. We may debit all or part of a chargeback item to your account even if doing so results in or causes an overdraft of your account and regardless of whether the item can be physically returned to you. You waive notice of dishonor in connection with any item that is not finally paid in full and that we charge back to your account. We may recover from you any amount withdrawn by you against a chargeback item. In the event that our debit of all or part of a chargeback item results in or causes an overdraft of your account, we may obtain and retain possession of the item, if it is available, until we recover from you the amount of any overdraft of your account and for a reasonable time thereafter. If our debit of all or part of a chargeback item that is an “on us” item does not result in or cause an overdraft of your account; our deadline for return to you of the item, if it is available, shall be six business days after we make such determination. If we are notified that any item for which you received payment or credit to your account is not properly payable, you agree that, without notice to you, we may authorize the drawee bank to hold the item and try to obtain payment. We will not initially decide whether a cashed or deposited item has been improperly returned; if you believe that a cashed or deposited item has been improperly returned, you should contact us immediately. We will not be responsible for failing to pay any item presented against your account before a deposit becomes available for withdrawal, as set forth herein, unless there is a sufficient available balance in your account to pay the item without regard to such deposit.
Stale and Postdated Checks and Checks Bearing Notations; Miscellaneous. We may, in our discretion and without notice to you, either pay or return any check that is presented to us for payment more than six (6) months after the date of that check (a “stale-date” check), even if the presentation occurs after the expiration of a stop payment order. We normally do not examine the date on checks presented for payment. You agree that we are not required to identify stale-dated checks or to seek your permission to pay them. We also may, in our discretion and without notice to you, either pay or return any check we receive before the date on that check unless you comply with any applicable statute regarding postdated checks and you have provided us with notice of the postdating in time for us to have a reasonable opportunity to act on it before the check is presented to us for payment. Your notice about any postdated check must be given in the same manner as a stop payment order, and must provide the same information required for stop payment orders. Your notice will be subject to a service charge. We may disregard any information on an item drawn on your account other than the signature of the authorized signer, the amount of the item, the date of the item (subject to the provisions of this Agreement regarding stale and postdated checks), the account number, the endorsements, and any other information which appears in magnetic ink at the bottom of the check. Although we are not obligated to, we may pay or accept checks and other items bearing restrictions or notations (e.g., “void after 6 months,” “two signatures required,” “Payee’s endorsement required.” “not good for more than $ (amount),” “void if not paid in (number) days,” “payment in full,” and the like), whether on the front or back, in any form or format. If you cash or deposit an item or write a check with such a notation, you agree that it applies only between you and the payee or maker. The notation will have no effect on us, and you agree to accept responsibility for payment of the item. We shall have the right, but not the obligation, to process any item that is materially incomplete or has been altered.
Withdrawals. You may withdraw part or all of your account’s available balance. We are not required to permit withdrawals from uncollected or unavailable funds except to the extent otherwise required by law. We accept no responsibility or obligation, except as required by law, to supervise or review the use of your account. Any authorized agent may withdraw all or part of the available balance in the account regardless of who deposited the funds into the account.
Restrictions on Withdrawals/Conflicts, Demands and Disputes. Your account may be subject to certain transaction limitations, which are shown in the disclosure provided to you at the time you opened your account. We may at any time and without prior notice to you (except where prior notice is required by law) establish or change transaction limitations for any account. If these limitations are exceeded, you will be subject to any charges in effect at the time. In addition, we may stop paying interest on an interest-bearing account, or we may close the account without prior notice to you (except where prior notice is required by law). We also may require you to provide notice before withdrawing funds from certain types of accounts.
Although your signature card, authorizing resolutions or checks may indicate that more than one signature is required on checks and for the withdrawal or transfer of funds, that notation is for your own purpose. We expressly disclaim a duty to enforce multiple signature requirements. As such, we expressly disclaim a duty to confirm that two or more (or any combination of) authorized users have approved any transaction. We may act upon the instructions of any one authorized signer.
We may (but are not obligated to) require suitable identification and/or presentation of account ownership records for any withdrawal or account closure. We may require noncustomers to present us with suitable identification, including valid photo identification, in connection with the cashing of your checks at one of our offices.
Cash withdrawal or payments at any branch may be restricted due to the limited amount of currency on hand. If we do not have sufficient cash for a large withdrawal or payment, we may make arrangements for a later cash payment or offer to make payment with a Bank check. We assume no responsibility to provide personal protection for customers who elect to carry large sums of money off of our premises.
Without prior written notice to you, we may hold funds in your account subject to a claim or we may pay the source of the claim when we receive any notice, claim, or court order which we believe may affect your account (such as liens, garnishments, attachments, levies, injunctions, or other orders of a court or other governmental agency), regardless of the form or manner in which we receive the notice, claim, or court order and regardless of whether we are a named party to the notice, claim, or court order. We will not be responsible for refusing to let you withdraw funds from an account or refusing to pay checks written on the account during the time we are holding the money because of the claim or after we have paid funds to the source of the claim.
In the event of any controversy with respect to your account, such as a claim against funds in your account or dispute over who has the right to make withdrawals from the account or who is the owner of the funds on deposit in the account, or there are conflicting demands over its ownership or control, or we are unable to determine any person’s authority to give us instructions, or we believe a transaction may be fraudulent or may violate any law, we may, in our sole discretion: (1) freeze the account and refuse transactions until we receive written proof (in form and substance satisfactory to us) of each person’s right and authority over the account and its funds; (2) refuse transactions and return checks, marked “Refer to Maker” (or similar language); (3) require the signatures of all authorized signers for the withdrawal of funds, the closing of an account, or any change in the account regardless of the number of authorized signers on the account; (4) request instructions from a court of competent jurisdiction at your expense regarding the account or transaction; and/or (5) continue to honor checks and other instructions given to us by persons who appear as authorized signers according to our records. The existence of the rights set forth above shall not impose an obligation on us to assess such rights or to deny a transaction. We may take such actions until we are satisfied that the controversy is resolved or we may continue to honor the authority of account owners and authorized agents as reflected on our records. We will not be responsible for any damages you may suffer as a result of our refusal to allow you or anyone else to withdraw funds due to the controversy or our allowing any existing owner or authorized agent to continue to conduct transactions on the account during the controversy. We also may interplead the funds in the account in a court of appropriate jurisdiction, naming all of the claimants to the account as defendants in the interpleader action. You agree to reimburse us for all expenses we incur in the interpleader action, including attorneys’ fees and costs, and we may obtain reimbursement of those expenses from your account without notice to you.
Photocopies. Checks and other items are sometimes lost during processing or while in transit. If a photocopy of a check or other item that appears to be drawn on your account is presented to us for payment in place of the original, we may pay the photocopy if it is accompanied by a representation from another financial institution that the original item has been lost or destroyed.
Service Charges; Error Correction. We may debit a service charge from your account for each deposited item that: is returned to us unpaid (whether for the first or a subsequent time; bears an unauthorized signature; prior to deposit, has been altered, erased, defaced or mutilated; or is incorrectly described on the deposit slip. Errors in posting, addition, subtraction and calculation, whether by you or us, are subject to correction by us at any time; provided that we may not be obligated to correct certain errors if you fail to notify us of the exceptions in a timely manner as described in Section 3. You agree to repay us promptly any amount credited to your account in error, and you authorize us to charge your account or any other account of which you are an account owner, to obtain payment for any erroneous payment or credit.
Checks. You can obtain information on the current price of checks by contacting us. Check charges may vary from time to time without specific notice to you. You are responsible for verifying the accuracy of all information shown on your checks and deposit tickets. If you find an error, please notify us immediately. We are not liable for losses resulting from incorrectly printed checks or deposit tickets.
If you do not purchase your checks through us, we may charge a fee for each check that rejects during processing due to poor quality or other reasons related to production and/or design. You agree not to issue checks with features or marks that obscure, alter or impair information on the front or back of a check or that otherwise prevents us or another bank from capturing such information during automated check processing.
You agree to safeguard your blank and canceled checks, and to take reasonable steps to prevent their unauthorized use. If your checks are lost or stolen, you agree to notify us immediately. For security reasons, we reserve the right to close your account and transfer the balance to a new account. If we do, all checks written but not yet paid may be returned to payees as “Account Closed”, “Refer to Maker” or some other notation. You will be responsible for issuing any replacement checks.
Check Imaging. We will not be responsible for any indirect, special or consequential damages under any circumstances for our inability to provide copies of checks. Our liability, if any, will not exceed the face amount of the check in question. You agree to provide us with reasonable proof of any loss.
Check Signature Verification. We may process certain checks mechanically, based on the information encoded on the items. Although we may review checks from time to time, you understand that reasonable commercial standards do not require us to do so.
Converting Your Account. If we discontinue your type of account, we may convert your account to another type of account. We may also convert your account to another type of account based on our evaluation of how you use the account. If we convert your account, we will provide you with information containing the terms and conditions of your new account.
Changing Checking or Savings Product/Account Type. If you should change from one checking or savings product/account type to another during the statement period, your account will be subject to the periodic charges and fees and requirements of the new product/account type for the entire period.
Indemnification. Except as otherwise set forth in this Agreement, you agree to indemnify, defend and hold us harmless from all claims, actions, proceedings, fines, costs and expenses (including, without limitation, attorneys’ fees) related to or arising out of: (a) your actions and omissions in connection with your accounts or our services, and (b) our actions and omissions, provided that they are taken/omitted in accordance with this Agreement or your instructions. This provision shall survive the termination of this Agreement.
Legal Process. We may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process which we believe (correctly or otherwise) to be valid. If we are not fully reimbursed for our record research, photocopying and handling costs by the party that served the process, we may charge such costs to your account, in addition to our minimum legal process fee. You agree to reimburse us for any cost or expense, including attorney fees, which we incur in responding to legal process related to your accounts. We may not pay interest on any funds we hold or set aside in response to legal process. You agree that we may honor legal process that is served personally, by mail, by email, or by facsimile transmission at any of our offices (including locations other than where the funds, records or property sought is held), even if the law requires personal delivery at the office where your account or records are maintained. You acknowledge that accounts opened with trust or fiduciary designations (e.g., “XYZ, Inc. – Client Trust Account”) may be subject to levies and other legal process against your property unless our records clearly reflect the existence of an express written trust or court order.
Limitation on Time to Sue. Unless otherwise required by law, an action or proceeding by either party to enforce an obligation, duty or right arising under this Agreement or by law with respect to your account or any account service must be commenced within one year after the cause of action accrues.
New Account Verification and Other Inquiries. We may make inquiries that we consider appropriate and use third party services to help us verify your identity, obtain information regarding your previous banking relationships and determine if we should open, maintain, collect or close your account. We may also report the status, history and/or closure of your account to third-party services.
Dormant and Abandoned/Unclaimed Accounts. Dormant accounts may be subject to a service charge based on the dormant status. Charges are not reimbursed for inactive or dormant accounts that are later reclassified as “active.” Once an account is classified in dormant status, you should contact the bank to request that the account be reclassified as “active.” Simply conducting a transaction on an account classified as dormant will not necessarily cause the account to be reclassified as “active.” For security reasons, we may refuse a withdrawal or transfer from accounts we internally classify as dormant if we cannot reach you in a timely fashion to confirm the transactions authorization. In the case of interest-bearing accounts that become dormant, we also may reduce the rate of interest or cease paying interest as disclosed on the applicable schedule of service charges and in accordance with applicable state law. We may be required to transfer the balance in any account that remains dormant, or that is otherwise considered “abandoned” or “unclaimed,” for the period of time described by the laws of the state where we maintain your account (or, if applicable, the laws of the state of your last residence as shown on our records) to that state or some other state as “abandoned” or “unclaimed” property. If funds are remitted to the state, you may file a claim with the state to recover the funds.
Other Services. If you have chosen to receive any of our other banking services offered in connection with your account, we may provide the specific terms and conditions of the additional service to you in a separate agreement or disclosure.
Right of Set Off/Grant of Security Interest. You hereby grant us, to the extent permitted by law, the right to charge or set off against the funds on deposit in your account. You agree that our right of set off also extends to any other account or property in which you or any account owner have an ownership interest that is in our possession or control. We may exercise our right of set off to collect any and all indebtedness or other obligations or liabilities which you or any account owner owe us, at any time. This indebtedness or other obligations or liabilities include, without limitation:
You agree that we may exercise our right of set off against your account or property without any further notice to or demand on you or any other owner or any other person, and regardless of whether all owners of such account or property are also obligated to us on the indebtedness or other obligations or liabilities being set off, as long as one owner is obligated on the indebtedness or other obligations or liabilities.
In addition to our right of set off, you grant to us, to the extent permitted by law, a continuing security interest in your account to secure all present and future indebtedness and other obligations and liabilities which you or any owner may owe to us at any time.
The set off rights and grant of a security interest herein are cumulative and nothing in this Agreement shall limit or prejudice any right of set off, security interest or other right or interest in our favor arising hereunder or under any other agreement, or by common law or otherwise.
Survival of this Agreement. All provisions of this Agreement, including, but not limited to the dispute resolutions provisions contained in this Agreement, shall survive the termination of this Agreement or closure of your account(s).
Closing Your Account. We reserve the right to close your account at any time, for any reason or for no reason, without the necessity of prior written notice. If we close your account, we will notify you by mail or telephone that we have closed your account, unless your account has had a zero balance for thirty (30) days or more. We may (but do not have to) mail you a check for the balance of available funds in your account, or you may pick up a check for the available balance at our office. Written notice that the account has been closed and a check, if any, will be sent to any address shown on our records for you. Once we have closed your account we may, without any liability to you:
We will have no liability to you for any damages you may suffer as a result of your account being closed or the process that follows the decision to close your account. If you attempt to make a deposit to an account we closed due to nonpayment of an overdraft or otherwise, we may collect the deposit and set off your indebtedness to us and collect a service charge from the amount you deposited. Any excess funds over $1.00 will be returned to you.
We reserve the right to refuse your request to close your account, if your account is not in good standing. If you intend to close your account, you should notify us. Simply reducing your account balance to $0.00 is insufficient notice and may result in additional fees charged to your account. If you close your account you are responsible for transactions you initiated or authorized, including those that we receive after the account is closed.
You waive and agree that we may waive certain legal requirements called presentment, demand for payment, protest, notice of protest, and notice of dishonor with respect to any and all items for which you received payment or credit from us. No departure by us from the provisions of this Agreement, any applicable rules and regulations, or any waiver of any service charges with respect to your account shall constitute (a) a waiver by us of any further right to impose any charges or enforce the provisions of this Agreement, (b) a conferring on you of any right or remedy or impose on us any liability on account thereof, or (c) a course of dealing different from the terms of this Agreement.
We will not be liable to you for any noncompliance with any special limitations placed upon items presented to or received by us, such as a special limitation on the maximum amount allowable under the item or a special limitation upon the time in which the item may be presented, unless we have agreed to abide by such special limitations pursuant to a separate written agreement signed by us.
Amendment of/Changes to this Agreement. At any time, we may amend or change (add to, delete or alter) the terms of this Agreement, including the interest and service charge schedule. At least ten (10) days before a change is made, we will provide you notice of the change by mailing you notice to the last address shown on our records, electronically if you have agreed to receive such notices electronically, by making the notice available with the periodic statement of your account, by posting notice of the amendment in our offices, or by posting notice of the amendment on the BBVA website or through online banking (if applicable). However, we will not be required to give you notice if the change will be to your benefit (such as an increase in the interest rate paid on a savings account). By continuing to maintain your account, conducting a transaction or by obtaining services or products relating to this Agreement or your account after the amendment becomes effective, you agree to the amendment of this Agreement.
We also may, in our sole discretion, substitute services or discontinue certain kinds of services, products, and accounts, and place restrictions on certain types of accounts. If we discontinue the kind of account you have, we can transfer your funds to another type of account. In that case, we will mail you a notice at least ten (10) days before the transfer takes effect. By continuing to maintain your account, conduct a transaction, or obtain services or products from us after the transfer takes effect, you expressly agree to the change in the kind of account you have.
Applicable Law. Except as otherwise provided by law, this Agreement and all accounts are governed by the laws of the state where we maintain your account and applicable federal laws and regulations in effect from time to time and are subject to any applicable automated or other clearinghouse rules and regulations.
For purposes of this Agreement, your account will be deemed to be maintained in the state where you opened your account. Your account is considered to have been opened: (i) if you opened your account in person, at the branch office where you opened your account; (ii) if you opened your account by mail, at the location where the mail was received by us; or (iii) if you opened your account electronically (including by telephone) and your address is in a state where we have branch offices, in the state of your address at the time you opened your account; otherwise, in Alabama.
You acknowledge that any cause of action arising under this Agreement will be a cause of action arising from a transaction occurring in the state where we maintain your account. You hereby submit to jurisdiction in the state where we maintain your account for any action arising out of or in connection with this Agreement and waive any and all rights under the laws of any state to object to jurisdiction within the state where we maintain your account. Nothing contained in this paragraph shall prevent us from bringing any action or exercising any rights against you in any other county, state, or jurisdiction. Initiating such action or proceeding or taking any such action in any other county, state, or jurisdiction shall in no event constitute a waiver by us of any of the foregoing.
Sub-Accounts. We may establish two “sub-accounts” on our books for certain deposit accounts. If we elect to establish the sub-accounts, it will not affect the other terms and conditions of your account or this Agreement, the Federal Deposit Insurance protection afforded on your account, the interest (if any) paid on your account, the service charges imposed in connection with your account, or the Truth in Savings disclosure given to you. Both of the sub-accounts will remain your accounts, but will be used by us internally to manage your funds. The first sub-account will qualify as and be treated as a “savings deposit account” for the purposes of Federal Reserve Board regulations. You authorize us to transfer funds between the two sub-accounts consistent with Federal Reserve Board regulations. As such, we must advise you that the regulations require that we reserve the right to require at least seven days’ written notice prior to the withdrawal or transfer of funds from the savings sub-account. We do not currently exercise that right with respect to these savings sub-accounts. In the event we determine to exercise that right, we will close the savings sub-account and transfer all funds back to your current account and cease the sub-account agreement. Your deposit and withdrawal capabilities are not affected by our election to establish the sub-account.
We may provide you with an ATM Card, Debit Card or other device or security code to access your account electronically or you may be required to create one or more security codes to access your account electronically. Please review the agreement that governs the use of and that comes with the card, device or the security code carefully.
You agree to use the card, device or security code only in the manner and for the purposes described in the applicable agreement. If you attempt to use the card, device or security code in any other manner or for any other purpose, we may reject the transaction, or at our discretion, we may complete it without incurring any obligation to honor the same type of transaction in the future. We may terminate a card, device or security code at any time without notice to you.
In order to prevent unauthorized access to your account, you agree to maintain the confidentiality and security of the card, device or security code. You agree to notify us immediately if you believe your card, device or security code may have become subject to unauthorized use. We may suspend or cancel your card, device or security code even without receiving such notice from you if we suspect your card, device or security code is being used in an unauthorized or fraudulent manner. You agree that the use of the security code constitutes a commercially reasonable security procedure for you.
You understand that anyone who obtains your security codes may access your accounts and may initiate transactions on your accounts. If you permit any other person to use your card or your security code or other means to access your accounts, you are responsible for all transactions initiated by such person.
ATM Safety and Security. The following are some tips on exercising care when using an ATM:
The following disclosures and agreement are applicable to electronic fund transfers to or from your account. Limitations on account activity that restrict your ability to make electronic fund transfers will be disclosed in the appropriate agreements governing your account or your electronic fund transfer service. This agreement contains a limitation on our liability in Section 9 below. If you use an ATM that is not operated by us, you may be charged a fee by us, the operator and/or the automated transfer network.
a. Electronic Fund Transfer: Any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, initiated through an electronic terminal, telephone, computer or magnetic tape to instruct us to debit or credit an account. Electronic Fund Transfers include, but are not limited to, such electronic transactions as direct deposits or withdrawals of funds, automated teller machine transfers, and transfers initiated by telephone.
b. Preauthorized Electronic Fund Transfer: An Electronic Fund Transfer authorized in advance to recur at substantially regular intervals, for example, direct deposits into or withdrawal of funds out of your account as authorized by you.
2. TRANSFERS INVOLVING YOUR ACCOUNT:
a. Authorized Transfers: You are liable for and shall pay us for all transactions made through authorized use of BBVA USA’s Electronic Fund Transfer services by you or any other person.
b. Unauthorized Transfers: Tell us at once if you believe unauthorized electronic deposits or withdrawals have been or may be made to or from your account. Telephone us immediately at the number provided to keep your possible losses to a minimum.
3. OUR TELEPHONE NUMBER AND ADDRESS: If you believe your account(s) has been or will be subject to unauthorized transfers, CALL: 1-844-228-2872 and make the appropriate selection from the voice menu, OR WRITE: BBVA USA, Customer Service Department, P.O. Box 10566, Birmingham, Alabama 35296. We may ask that you provide information in writing concerning the apparent or potential unauthorized transfer. If we do so, we will provide you with the address to which you should send that information.
4. BBVA USA BUSINESS DAYS: Monday through Friday, excluding Federal Holidays.
5. ACCOUNT ACCESS: The types of Electronic Fund Transfers which you may make or have made for you depend upon the specific account(s) and services which you hold, and the specific types of Electronic Fund Transfers you have authorized.
6. CHARGES: Except as may be provided by a specific agreement with BBVA USA, there is no additional charge for making Preauthorized Electronic Fund Transfers. However, each Preauthorized Electronic Fund Transfer will be subject to the regular account service charges, if any, in accordance with the terms of the related account(s) in effect from time to time.
7. YOUR DOCUMENTATION OF TRANSFERS:
a. Preauthorized Transfers: If you have arranged to have direct deposits made to your account, you may call us to determine if the deposits have been made. If you have arranged for regular payments of varying amounts to be made from your account, the person you agree to pay should tell you ten (10) days before each payment the amount of the payment and when it will be made.
b. Periodic Statements: You will receive, or we will make available to you, a statement of your account monthly unless you do not make any electronic transfers; then you may receive a quarterly statement. Your periodic statement will show the details of any electronic transfer you made and the details of any preauthorized transfers to or from your account that you instructed us to make.
8. HOW TO STOP PAYMENT: If you have authorized us to make regular Preauthorized Electronic Fund Transfer payments out of your account, you may request that we stop any payment by CALLING US at: 1-800-239-2265 or (205) 558-5000, or by WRITING US at: BBVA USA, Customer Service Department, P.O. Box 10566, Birmingham, Alabama 35296. You must notify us in time for us to receive your request at least three (3) business days before the payment is scheduled to be made. You must tell us the exact amount of the payment to be stopped, as well as other information we may request. If you deliver your stop payment request by telephone, you must confirm your stop payment order to us in writing within twenty-one (21) days of your oral stop payment request. If you fail to provide the required written confirmation within twenty-one (21) days of an oral stop payment request, you agree that we may honor or ignore, in our discretion, the oral stop payment request. We also require that you provide us with a copy of your written revocation to the payee-originator within twenty-one (21) days of our receipt of your stop payment request.
9. OUR LIABILITY: We will respond to notices of unauthorized transfers, as described in Section 2(b) above, and requests to stop payment, as described in Section 8 above, in a commercially reasonable manner and time. You agree, however, that in no event shall we be liable in an amount exceeding the lesser of $5,000 (five thousand dollars) or the actual amount of your loss in the case of (i) any unauthorized transfer from your account or (ii) any failure by us to honor or cancel a stop payment request. You agree that we will not be liable for any amount of loss that you may incur (i) if your periodic statement shows electronic fund transactions that you did not make or authorize and you do not tell us within thirty (30) days after the statement was mailed or made available to you or (ii) if you fail to timely provide the information described in Section 8 above, and otherwise requested by us, in connection with any request by you to stop payment of a Preauthorized Electronic Fund Transfer.
Our policy is to make funds from your deposits of cash and checks presented through normal check collection channels available to you on the same business day as the day we receive your deposit. Electronic direct deposits will be available on the same business day we receive the deposit. Once they are available, you can withdraw the funds in cash and we will use the funds to pay checks you have written. Certain exceptions to our funds availability policy are described below.
Business Day. For determining the availability of your deposits, every day is a business day except Saturdays, Sundays, and federal holidays.
Cut-Off Time. Generally, if you make a deposit on a business day we are open with one of our tellers before the close of the banking center, or at one of our automated teller machines before 1:00 p.m., or at one of our night depository facilities before 7:00 a.m., we will consider that day to be the day we receive the deposit (the day of deposit). Otherwise, we will consider the deposit to be made on the next business day we are open. However, some of our ATMs may offer later cut-off times. Please check for specific times that are displayed on ATM message screens.
Delayed Funds Availability for Outgoing Wire Transfers and the Purchase of Cashier’s or Other Official Checks and Money Orders. Funds from deposited checks processed through the Federal Reserve System will be available for outgoing wire transfers and the purchase of cashier’s or other official checks and money orders no later than the second business day after the day of deposit.
Longer Delays May Apply. In some cases, we will not make all of the funds that you deposit by check available to you on the same business day as the day of deposit. Depending on the type and/or dollar amount of the check that you deposit, funds may not be available until the second business day after the day of deposit. However, the first $200 of your deposits will generally be made available on the same business day as the day of deposit. If we are not going to make all of the funds from your deposit available to you on the same business day as the day of deposit, we will notify you at the time you make your deposit. We will also tell you when the funds will be available.
If your deposit is not made directly to one of our employees, or if we decide to take this action after you have left the premises, we will mail you a notice no later than the close of the business day after the day we receive the deposit or we decide to place the hold.
Funds for the following deposits are available on the same business day as the day of deposit if you make the deposit in person to one of our employees:
In addition, funds you deposit by check (including those mentioned above) may be delayed for a longer period of time under the following circumstances:
We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. They will generally be available no later than the seventh business day after the day of deposit.
Special Rules for New Accounts. If you are a new customer, the following special rules will apply during the first 30 days your account is open. Funds from electronic direct deposits to your account will be available on the same business day we receive the deposit. Funds from deposits of cash, wire transfers, and the first $5,000 of a day’s total deposits of cashier’s, certified, teller’s, traveler’s and federal, state and local government checks made payable to you will be available on the same business day as the day of deposit. The excess over $5,000 will be available no later than the ninth business day after the day of deposit.
Funds from deposits of checks not listed in the previous paragraph will be available no later than the ninth business day after the day of deposit. All funds will be held – we do not make the first $200 available. If you need funds from a deposit at a specific time, you should ask us when the funds will be available.
Mobile Deposit. You agree that items transmitted using the Mobile Deposit service are subject to the following funds availability policy. In general, if an image of an item you transmit through the Mobile Deposit service is received and accepted on a business day before the cutoff time displayed in the Mobile Banking application for the Mobile Deposit service, we consider that day to be the day of your deposit. Otherwise, we will consider that the deposit was made on the next business day. Funds deposited using the Mobile Deposit service will generally be made available within five (5) business days from the day of deposit. BBVA may make such funds available sooner based on such factors as the length and extent of your relationship with us, transaction and experience information, and such other factors as BBVA, in its sole discretion, deems relevant.
The Internal Revenue Service is responsible for insuring that all persons pay the correct amount of federal income tax. In order to accomplish this task, they must match the income reported by businesses for individuals (salary, interest, dividends, etc.) to the amounts shown on individual tax returns. Taxpayer Identification Numbers (for individuals, their Social Security Numbers) are used as the basis for matching these records. A 1983 law requires all payers of interest (such as a bank) to report interest paid to individuals by Taxpayer Identification Number. Therefore, you must provide your correct Taxpayer Identification Number to BBVA USA so that we may meet these reporting requirements. This law also stipulates that should a bank or other payer of interest not have your correct Taxpayer Identification Number on file, then a percentage of the interest, dividends and other payments made to you must be withheld and forwarded to the IRS to insure that taxes on this income are paid. This advance payment is known and referred to by the IRS as “backup withholding.” Backup withholding is not an additional tax. Rather, the amount of taxes you normally would owe will be reduced by the amount of tax withheld. If an overpayment of taxes results from backup withholding, a refund may be obtained from the Internal Revenue Service.
Unless the IRS has instructed us to withhold from your interest and dividend payments, you can avoid backup withholding by providing us with your correct Taxpayer Identification Number and indicate on the signature card that you are exempt. Additionally, you must certify that the Taxpayer Identification Number you provide us is correct and that you have not been advised by the IRS that you are subject to backup withholding. The IRS is empowered to impose penalties on you and us if your correct Taxpayer Identification Number is not provided. We may refuse to open, and we may close, any account for which you do not provide a certified TIN, even if you are exempt from backup withholding and information reporting.
Unless you are an exempt recipient (see Exempt Recipient section) you are subject to backup withholding if:
** NOTE: Section 3406(a)(1)(C) of the Internal Revenue Code basically requires backup withholding if you have underreported to the IRS interest or dividend payments you received, or if you failed to file a Tax Return which would have included reportable interest or dividend payments. The IRS will notify you before they instruct us to withhold for either of these reasons.
How to Avoid Backup Withholding: When you open an account with us, we will provide you with the necessary forms to complete in order to provide and certify your Taxpayer Identification Number. TO AVOID BACKUP WITHHOLDING, all you have to do is provide us with your correct Taxpayer Identification Number and sign the certification statement to certify that the number you are providing is correct and that you are not subject to backup withholding.
Taxpayer Identification Numbers: If you are an individual, your Taxpayer Identification Number is your Social Security Number. If you are not an individual, generally your Taxpayer Identification Number is your Employer Identification Number. In all instances the number you give to the bank should be the number of the owner of the account.
Guidelines for Determining the Proper Identification Number to Give the Bank. Social Security Numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer Identification Numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help you determine the number to give to the bank.
|For this type of account:||Give the social security number of:|
|1||An individual account||The individual|
|2||Two or more individuals (joint/multiple party account)||The actual owner of the account. This person’s name should be listed first on the account.|
|3||Husband and wife (joint/multiple party account)||The first person listed on the account|
|4||Custodian account of a minor (Uniform Transfer to Minors Act)||The minor|
|5||Adult and minor (joint/multiple party account)||The adult or, if the minor is the only contributor, the minor.|
|6||Account in the name of guardian or committee for a designated ward, minor or incompetent person||The ward, minor or incompetent person|
|7a||The usual revocable savings trust account (grantor is also trustee)||The grantor-trustee|
|7b||So called trust account is not a legal or valid trust||The actual owner|
|8||A valid trust or estate||Legal entity (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.)|
Obtaining a Number. If you don’t have a Taxpayer Identification Number or you don’t know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS- 4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service and apply for a number. When you get a number, submit a new form to the bank.
Exempt Payees specifically exempted from backup withholding on ALL payments include the following:
Payments of interest not generally subject to backup withholding include the following:
Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer’s trade or business and you have not provided your correct taxpayer identification number to the payer.
To avoid erroneous withholding, exempt recipients should complete the form(s) provided by the bank, checking the box captioned Exempt Recipients. The form should also contain your Taxpayer Identification Number and the certification statement must be signed. The form must then be returned to the bank.
A nonresident alien or foreign entity not subject to information reporting must certify its exempt status by completing an appropriate IRS certification form (e.g., W-8 BEN). Nonresident aliens may be required to certify their exempt status every three years (or earlier upon request) to avoid backup withholding.
BBVA USA IS THE BANK FOR BUSINESS
BBVA USA has much to offer your business through a complete range of business banking services tailored to meet your special needs. These include:
Alnova converted accounts only. BBVA and BBVA Compass are trade names of BBVA USA, a member of the BBVA Group. BBVA USA, Member FDIC. 99-36-2069 / Rev. 05/2018 / #468270
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