Due to inclement weather, Bankwell offices will open late today at 10:00am, Thursday December 5th.
In observance of Memorial Day, Bankwell will be closed on Monday, May 26, 2025. Normal business hours will resume on Tuesday, May 27.
This Business Banking Master Services Agreement is incorporated by reference into the Account Agreement (as defined below) for commercial deposit accounts at Bankwell Bank (hereinafter referred to as “the Bank”) to add Business Banking services that are described in this Business Banking Master Services Agreement and in the Schedules. Use of the Business Banking Services constitutes acceptance of and agreement to the terms and conditions contained in this Business Banking Master Services Agreement, including the Schedules that may be received from us from time to time, and as may be amended from time to time (collectively, the “Agreement”).
1. DEFINITIONS.
1.1 “Account” means a commercial deposit account you maintain with us.
1.2 “Account Agreement” means the commercial deposit account agreement and regulations for commercial deposit accounts as may be issued by us, as the same may be amended, modified, or supplemented by us from time to time. The Agreement is made a part of the Account Agreement; provided, however, that if any term of this Agreement is inconsistent with any term of the Account Agreement, the terms of this Agreement shall control with respect to matters relating to the Services provided under this Agreement. If any term of a Schedule hereto is inconsistent with any term of this Agreement, the term of the Schedule shall control, to the extent of such inconsistency.
1.3 “Authorized Representative” means a person you designate to act on your behalf with respect to the Services.
1.4 “Available Funds” means funds on deposit in an Account and available for withdrawal pursuant to Regulation CC of the Board of Governors of the Federal Reserve System and our funds availability policies.
1.5 “Bank Confidential Information” means any information provided by us or our licensors or contractors in connection with the Services, including without limitation the User Guides and Operating Procedures, software and computer programs, procedures, fee schedules and this Agreement, but does not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by you; (ii) was in your possession before the time of disclosure and without obligations of confidentiality; (iii) becomes rightfully available to you on a non-confidential basis from another source; or (iv) is independently developed by you without reference to or use of Bank Confidential Information.
1.6 “Schedule” means a schedule to this Agreement, including all exhibits and addenda to the schedule, as amended, modified, or supplemented by us from time to time. Each Schedule is incorporated into and made a part of this Agreement; provided, however, that if any term of the Schedule is inconsistent with any term of this Agreement, the terms of the Schedule shall control with respect to matters relating to the Services described in the Schedule.
1.7 “Services” means the internet-based Business Banking services described in and provided by us under this Agreement and the Schedules.
1.8 “User Guides and Operating Procedures” means the user documentation, guidelines, operating procedures and administrative rules we may establish from time to time relating to the Services, and Documentation if separately defined in the Schedules.
1.9 “We”, “us” and “our” refer to Bankwell Bank.
1.10 “Customer”, “you” and “your” refer to the company named in the signature block below and anyone else with authority to conduct transactions on or exercise control over Account(s).
2. ACCESS TO THE BUSINESS BANKING SERVICES AND SYSTEM. You will access the Services through the Bank’s internet-based Business Banking system (the “System”), which can be accessed from the Bank’s web site. To register to use the System, Customer must complete any documentation or registration process required by Bank. Customer authorizes the Bank, directly or through an agent, to obtain Customer’s credit report in connection with Customer’s request for access to the System and the Services and, in the Bank’s sole discretion, on subsequent dates in connection with Customer’s ongoing use of the Services and the System. The Bank may, at its sole discretion (but without obligation), limit the dollar amount of Customer's transfers and payments. Subject to applicable law, the Bank reserves the right, at its sole discretion (but without obligation), to modify, suspend or terminate access to all or any part of the Services or the System at any time without notice or refund of previously incurred fees.
3. ACCOUNT(S). You agree to establish and maintain one or more Account(s) during the term of this Agreement. Each Account shall be subject to the terms and provisions of the Account Agreement and, with respect to the Services, to the terms and provisions of this Agreement. You agree to fund each Account with Available Funds in amounts sufficient to pay all checks and drafts drawn against and payment orders and other debits charged to the Account and to pay all fees and other charges you owe to us under this Agreement or under the Account Agreement.
4. SERVICES. We agree to provide you with the Services under the terms and subject to the conditions set forth in this Agreement.
5. FEES AND CHARGES; TAXES. You agree to pay to us, as consideration for the Services, such fees and other charges as may be in effect from time to time for the Services. We agree to make available to you, at your request, a schedule of fees and charges for the Services, as currently in effect. We may debit any of your Account(s) in the amount of the fees and charges due and owing to us from time to time. In addition to such fees and other charges, you agree to be responsible for and pay all tariffs, duties, and sales, use or other taxes (excluding our U.S. federal, state, and local income taxes) imposed by any governmental agency or authority in connection with the Services provided to you.
6. USER GUIDES AND OPERATING PROCEDURES. You agree that the Services provided by us shall be subject to the User Guides and Operating Procedures. We may from time to time revise or update the User Guides and Operating Procedures. We agree to make available to you the User Guides and Operating Procedures and all revisions and updates to the User Guides and Operating Procedures.
7. SECURITY PROCEDURES. Customer and Bank shall comply with the security procedures described in this Section 7 when accessing the System and the Services. Bank and Customer agree that Customer, its Administrator and Authorized Representatives (defined below), will, when accessing the Services: (i) use a company ID, user ID and a Password, (ii) adhere to the additional security measures set forth in Schedule A attached hereto and (iii) adhere to any additional security procedures set forth in any Schedule to this Agreement (the foregoing security procedures are collectively referred to in this Agreement as the “Security Procedures”). Customer agrees that the Security Procedures are commercially reasonable under the factual circumstances of Customer's business. The Customer will notify Bank if, at any time, the Customer becomes aware of facts which suggest that the Security Procedures no longer seem adequate.
The Bank will provide Customer with a company ID, user ID and Password. Customer may appoint an individual (“Administrator”) with the authority to: (i) determine who will be authorized to use the Services (each an “Authorized Representative”); (ii) establish separate Passwords for each Authorized Representative; and (iii) establish limits on each Authorized Representative’s authority to access information and conduct transactions. Customer is responsible for the actions of its Administrator, the authority the Administrator gives others to act on its behalf, and the actions of its Authorized Representatives. Customer agrees to: (i) take reasonable steps to safeguard the confidentiality of all Passwords; (ii) limit access to its Passwords to persons who have a need to know such information (iii) closely and regularly monitor the activities of employees who access the Services (iv) prohibit its employees and agents from initiating entries without proper supervision and adequate controls; and (v) remove Authorized Representatives they deem no longer authorized to use the Services.
Customer understands that the use of Passwords and the Services’ instructions is confidential and agrees to assume all risks of accidental disclosure or inadvertent use by any party whatsoever, whether such disclosure of use are on account of Customer’s negligence or are deliberate acts.
Customer shall change its Passwords periodically and whenever anyone who has had access to a Password is no longer employed or authorized by it to use the Services. The Bank may require Customer to change its Passwords at any time. The Bank may deny access to the Services without prior notice if it is unable to confirm (to its satisfaction) any person’s authority to access the Services or if the Bank believes such action is necessary for security reasons.
ACH and Wire Transfers will be required to be processed under “Dual Control” and with the use of a “Token”
8. CONFIDENTIALITY. You agree to: (a) keep the Bank Confidential Information confidential and not disclose the Bank Confidential Information to anyone other than your employees or representatives with a need to know the Bank Confidential Information in connection with the Services; (b) only use the Bank Confidential Information for our benefit in connection with the Services and for no other purpose; (c) not copy the Bank Confidential Information unless you obtain our consent; and (d) return to us, at the end of contract or sooner if requested by us, all Bank Confidential Information. You agree to be fully responsible for your employees and representatives use of Bank Confidential Information and to obtain from your representatives authorized to receive Bank Confidential Information, confidentiality commitments no less stringent than those in this Agreement. You acknowledge that we will suffer irreparable harm in the event of a breach of any obligations in this Section and that monetary damages will be inadequate to compensate us for a breach. Therefore, you agree that, in the event of a breach or threatened breach of this Section, we are entitled to obtain a temporary restraining order, preliminary injunction and permanent injunction in addition to any other rights and remedies which may be available to us.
9. TERM AND TERMINATION.
9.1 Termination of Agreement. The Agreement shall continue in full force and effect until either party terminates this Agreement by giving the other party thirty (30) days’ prior written notice of termination. Notwithstanding the foregoing, you may terminate this Agreement immediately, upon your receipt of a notice from us that: (i) we have assigned this Agreement; or (ii) we have amended any Schedule, if such assignment or amendment is not acceptable to you; provided, however, that any such termination by you shall not be effective until we have a reasonable opportunity to act upon your notice of termination and in any event this Agreement shall remain in full force and effect as to all transactions taking place prior to the termination date. Termination of this Agreement shall not affect the rights and obligations of the parties that have accrued prior to termination.
9.2 Termination of Schedules. Unless provided otherwise in the Schedules, either party may terminate any Schedule by giving the other party thirty (30) days’ prior written notice of termination. Notwithstanding such termination, the Schedule(s) shall remain in full force and effect as to all transactions taking place prior to the termination date. The termination by either party of any Schedule shall not terminate: (a) the provisions of any other Schedule; or (b) any provisions set forth in this Agreement, other than the provisions of the terminated Schedule which have been incorporated and made a part of this Agreement.
9.3 Immediate Termination. Notwithstanding the foregoing, we may terminate this Agreement and/or any Schedule immediately and without prior notice if, at any time: (i) you fail to comply with any of your obligations under this Agreement; (ii) you are in default under any obligation with us; (iii) any of the Account(s) has insufficient funds to pay debits against it at any time; (iv) you misuse any of the Account(s) in any manner; (v) a receiver, custodian, trustee, or similar official has been appointed, or been applied for by you, for all or a substantial part of your property; (vi) any general assignment has been made by you for the benefit of creditors; (vii) you become insolvent or bankrupt; (viii) a material adverse change occurs in your financial condition or business; (ix) any representation made or information provided by you is false or misleading in any material respect when made or provided; (x) you violate, or we suspect you are violating, any law or regulation; or (xi) we deem immediate termination of this Agreement and/or any Schedule as necessary or appropriate to prevent a financial loss.
9.4 Suspension of Service. In the event that we, in our sole discretion, believe that our provision of any Service may create a risk of financial loss, we may, upon notice to you, suspend the Services; provided, however, that if you take such action as may be requested by us to eliminate such risk of financial loss, including, without limitation, funding an Account with Available Funds in an amount sufficient to pay for all checks and drafts drawn against and payment orders and other debits charged to the Account, we may not suspend the Services, or, if the Services has been suspended, may reinstate the Services.
10. LIMITATION OF LIABILITY. We shall in no event be liable for any failure to perform or delay in performance under this Agreement unless we failed to act in good faith. Without limiting the generality of the foregoing, we shall not be liable for any loss or damage resulting from any failure to perform or any delay in performance caused by any circumstance beyond our reasonable control, including without limitation, acts of civil, military, or banking authorities, national emergencies, labor difficulties, fire, flood, or other catastrophes, acts of God, insurrection, war, riots, failure of transportation, failure of vendors, communication or power supply, or malfunction of or unavoidable difficulties with equipment, software or other technology used to provide the Services. OUR LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF YOUR ACTUAL DAMAGES OR THE FEES AND OTHER CHARGES PAID BY YOU TO US DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRIOR TO THE OCCURRENCE WHICH GIVES RISE TO THE CLAIM. WE SHALL HAVE NO LIABILITY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR ANY OTHER SIMILAR DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing is subject to any applicable provisions of the Uniform Commercial Code of the state specified in Section 18 below (“UCC”); and, in the event we fail to exercise ordinary care or fail to act in good faith, the foregoing shall not limit the damages which we are expressly required to pay under the applicable provisions of the UCC, if the UCC does not permit the parties to limit the amount of damages in the manner set forth above.
11. DISCLAIMER OF WARRANTIES. OUR REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND LIABILITIES, AND YOUR RIGHTS AND REMEDIES SET FORTH IN THE AGREEMENT ARE EXCLUSIVE. WE AND OUR LICENSORS AND CONTRACTORS DISCLAIM, AND YOU WAIVE AND RELEASE US, OUR LICENSORS AND CONTRACTORS, AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AND AFFILIATES FROM ALL OTHER REPRESENTATIONS, WARRANTIES OF ANY NATURE, OBLIGATIONS AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY AND ALL DOCUMENTS, SERVICES, INFORMATION, ASSISTANCE, SOFTWARE, OR OTHER MATTERS PROVIDED UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A SPECIFIC OR PARTICULAR USE, PURPOSE OR APPLICATION, OR OTHER IMPLIED CONTRACTUAL WARRANTY; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (iii) ANY WARRANTIES OF TIMELINESS OR NON-INFRINGEMENT; AND (iv) ANY OTHER WARRANTY WITH RESPECT TO QUALITY, ACCURACY OR FREEDOM FROM ERROR. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, WE AND OUR LICENSORS AND CONTRACTORS DO NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
12. INDEMNIFICATION. You agree to indemnify and hold us harmless and our licensors and contractors providing the Services, including our and their respective directors, officers, shareholders, employees, parents, subsidiaries, and affiliates, from and against any and all losses, liabilities, penalties, damages, suits, proceedings, claims, demands, causes of action, costs and expenses (including reasonable attorney’s fees and other legal expenses) that may be incurred or suffered or that may be asserted by any person or entity arising out of: (i) any failure by you to comply with your obligations under this Agreement; (ii) any wrongful act by you or your affiliate or subsidiary in connection with any Service provided under this Agreement; or (iii) any action taken or omitted to be taken by us in reliance upon information, data, or authorizations received from you or an Authorized Representative or upon the authenticity of any representation purporting to be from, or signature purporting to be of, you or an Authorized Representative.
13. REPRESENTATIONS. You represent and warrant that: (a) the execution, delivery, and performance by you of this Agreement is: (i) within your power and authority; (ii) does not violate or create a default under your organizational documents or any contract or agreement binding on or affecting you or your property; and (iii) has been duly authorized by all necessary action; and (b) this Agreement constitutes a legal, valid, and binding obligation enforceable against you in accordance with its terms.
14. COMPLIANCE. You agree to comply with all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations.
15. NOTICES. Any notices which are required to be given in writing under this Agreement, including under any Schedule, shall be sent by certified mail postage-prepaid to you at the address on record with us for your Account, and to us at Bankwell – Business Banking Department, 258 Elm Street, New Canaan, CT 06840, or such other address or by such other means (including fax, email or through the Services) we may designate in the User Guides and Operating Procedures or otherwise in writing.
16. ASSIGNMENT. The Agreement and the rights and obligations under this Agreement may not be assigned, transferred or delegated by you, voluntarily or involuntarily, by operation of law or otherwise, without our prior written consent, and any assignment, transfer or delegation without such consent will be null and void. You agree that we may assign, transfer or delegate this Agreement or any of your rights and obligations under this Agreement, without your consent.
17. YOUR INFORMATION.
17.1 General. You shall: (i) provide, or cause to be provided, to us any information or documents; and (ii) execute, or cause to be executed, any document or instrument, which in either case we reasonably deem necessary or appropriate to provide the Services.
17.2 Reliance. We shall be entitled, when providing the Services, to rely upon: (i) the accuracy of information, data and authorizations received from you or an Authorized Representative; and (ii) the authenticity of any representation purporting to be from, or signature purporting to be of, you or an Authorized Representative.
18. AMENDMENTS. The Agreement may be amended by a writing executed by both parties. Notwithstanding the foregoing, we may amend this Agreement at any time and from time to time, and any such amendment shall be effective immediately upon written notice to you. We agree to use reasonable efforts to give you prior written notice of any such amendment to the extent reasonably practicable.
19. WAIVER OF JURY TRIAL. THE PARTIES EACH WAIVE ANY CLAIM OR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE OR CLAIM ARISING UNDER OR IN RESPECT TO THE AGREEMENT, WHETHER RELATING TO INTREPRETATION, BREACH OR ENFORCEMENT OF ANY PROVISION OF THE AGREEMENT OR OTHERWISE AND WHETHER ARISING IN TORT OR CONTRACT.
20. GENERAL PROVISIONS.
The headings in this Agreement are included for ease of reference only and shall not be deemed a part of or to create any rights, remedies claims, or defenses under this Agreement. If any provision of this Agreement shall be held or made illegal, invalid, or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected by such illegality, invalidity, or unenforceability and shall continue in full force and effect. The Agreement, together with the Account Agreement and all Schedules, constitutes the entire agreement and understanding between the parties, and supersedes all prior and contemporaneous proposals, agreements, representations, and understandings, whether written or oral, with respect to the Services. The Agreement, the Schedules and the User Guides and Operating Procedures shall be construed and interpreted as one agreement, but if there is any inconsistency, then with respect to matters relating to the Services, the provisions of the Schedules shall control the provisions of this Agreement and the User Guides and Operating Procedures, and the provisions of this Agreement shall control the provisions of the User Guides and Operating Procedures. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the other party.
The Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. The Agreement is for your and our benefit only, and your and our respective successors and permitted assigns. Nothing contained in this Agreement is intended or shall be construed to confer upon any person or entity (other than you and us) any rights, benefits, claims, or remedies of any kind or nature, and no such person or entity shall be deemed a third party beneficiary under or by reason of this Agreement. You shall execute and deliver such additional documents and instruments, take such additional actions and perform such additional acts as may be reasonable, necessary, or appropriate or which we may reasonably request to effectuate, carry out and perform the terms, provisions and conditions of this Agreement. The provisions of the above Sections 6 through 12, 17, and 18 of this Agreement, and all other provisions of this Agreement which, by their very nature, are intended to survive termination of this Agreement, shall be deemed to survive termination of this Agreement, for any reason. In the event of any conflict between the provisions of this Agreement and any applicable law or regulation, these provisions shall be deemed modified to the extent, and only to the extent, required to comply with such law or regulation.
This Agreement shall be governed by the laws of the State of Connecticut without reference to provisions relating to conflict of laws. Each of the parties agrees that service of any process, summons, notice or document by U.S. registered mail or certified mail to the address set forth in Section 13 above (or to any other address given in accordance with the terms of that Section) shall be effective service of process for any action, suit or proceeding brought against such party in enforcing any rights hereunder. All such proceedings shall be litigated exclusively in the state or federal courts of Connecticut, and, if necessary, the corresponding appellate courts and each of the parties submits to the jurisdiction of such courts with respect to such judicial proceedings. Each party also agrees not to bring any action or proceeding arising out of or relating to such judicial proceeding in any other court. We can waive the foregoing jurisdictional and venue obligation if third party claims cause the proceedings to occur in another jurisdiction or venue or if a court in the chosen forum rules that it does not have jurisdiction, and based upon the ruling it does not reasonably appear that another court in the chosen venue would exercise jurisdiction.
General Security Measures
Bank uses 128 bit SSL strong encryption of data during transmission of data between your computer(s) and our web server. You agree to always use the SSL encryption security features built into your web browser software whenever you connect to a web server utilized by Bank and/or its vendors, and to verify that each entire online session is encrypted.
To avoid unauthorized access to the Customer’s confidential information and its accounts, you agree to adopt all reasonable security measures in using the System and Services, including, but not limited to, the steps listed below.
The most effective loss prevention measure you can take is to ensure that the Customer has a strong internal control environment in place. You must institute a robust control environment and monitor your account transactions and activities daily. The System and Services make it easy for your company to monitor Authorized Representative activity through use of the activity report feature of the System and Services.
In addition, Bank recommends the use of the following the System and Services features to further ensure security of your accounts:
