Morgan Stanley Private Bank Deposit Account Agreement
Terms. In this booklet, the words "you" and "your" refer to the owners and authorized signers of an account; "we," "us" and "Bank" refer to Morgan Stanley Private Bank, National Association ("Morgan Stanley Private Bank").
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. We owe you a duty of ordinary care. 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.
IMPORTANT INFORMATION FOR OPENING AN ACCOUNT
To help the government fight the funding of terrorism and money laundering activities, the USA PATRIOT Act, a Federal law, requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. When you apply for an account, we will ask you for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver's license or other identifying documents.
Check Deposit Options.
Mobile Check Deposit is available for check deposits. Checks may also be mailed to us at:
Morgan Stanley Private Bank
Attn: Deposit Operations
P.O. Box 484
Jersey City, NJ 07303-0484
Source. We may accept items payable to any of you for deposit to your account from any source without questioning the authority of the person making the deposit; though we reserve the right to inquire about all sources of funds at our discretion. 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 that you maintain with us.
Endorsements. 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 endorsements be guaranteed by another financial institution acceptable to us before we accept the item.
Cutoff Hour. Except as otherwise indicated in this Agreement, if we receive an item for deposit on a weekend, a holiday or after 4 p.m. Eastern Time ("ET") on a business day, we may treat it as if we had received it on the next business day.
Items Sent For Collection. We and other institutions may refuse to accept a check or other item for deposit or may accept it on a collection basis only. This often occurs with questionable or damaged items. If we accept an item for collection, we will send it to the institution upon which it is drawn, but will not credit your account for the amount until we receive the funds from the other institution. If we elect to credit your account before then, we may charge the amount back against your account at any time if we do not receive payment for any reason. We may impose a fee in connection with sending and receiving items for collection (e.g., by charging your account or deducting the fee from the amount remitted). Other institutions that send or receive items for collection involving your account also may impose a fee for their services.
Verification and Collection. Any item that we accept for deposit is subject to later 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.
Cashing Checks for Others. You should not use your account to cash checks for others who are not well known to you. 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 to us for any reason (e.g., because it is counterfeit). Our employees cannot promise that checks drawn on or issued by other institutions, including cashier's checks, will be paid.
Transfer Money Credits. Credit for an Automated Clearing House ("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 payee, 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 notice or demand.
Real Time Payments ("RTP"). The RTP system allows for real-time payment transfers between accounts that are located in the United States. RTP payments and transfers are governed by the RTP system rules in addition to this Agreement, and transaction limits may apply. RTP transfers are final once submitted; it is your responsibility to ensure that instructions are accurate before requesting that we initiate an RTP transfer. An RTP payment or transfer request cannot be amended or cancelled after we receive it. We may attempt to abide by a subsequent request for a change, but we are not obligated to do so. If we receive a message requesting return of an RTP payment received for credit to your account, we may notify you of that request. While you may not be obligated to comply with any request to return RTP-transferred funds, any resulting dispute and resolution is solely between you and the sender of the RTP transfer. You may request that we return such payment to the sender. We may, at our sole discretion, attempt to honor such request but will have no liability for our failure to do so. You agree to indemnify, defend and hold us harmless from all claims, actions, proceedings, fines, costs and expenses (including, without limitation, attorney fees) related to or arising out of any RTP transfer or dispute, as allowed by law.
Notice of Incoming Transfer. We are not required to give you a separate notice of our receipt of an ACH or RTP transfer. If we accept ACH or RTP 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. Transfers to your account will be reflected on your regular periodic statement. You also can contact us during normal business hours to determine if a transfer has been credited to your account.
3. FUNDS AVAILABILITY
Your Ability to Withdraw Funds. Our policy is to delay the availability of funds from your check deposits and ACH debit entries that we originate. During the delay, you may not withdraw the funds to pay checks and we will not use the funds to pay checks that you have written.
Determining the Availability of a Deposit. The length of the delay is counted in business days from the day of your deposit. Every day is a business day except Saturdays, Sundays, and federal holidays. If you make a deposit before 4 p.m. ET on a business day that we are open, we will consider that day to be the day of your deposit. However, if you make a deposit after that hour or on a day we are not open, we will consider that the deposit was made on the next business day we are open.
The length of the delay varies depending on the type of deposit and is explained below.
Same-Day Availability. We will make wire deposits, RTP transfers, transfers from other Morgan Stanley Private Bank accounts and E*TRADE from Morgan Stanley accounts (held at Morgan Stanley Smith Barney LLC) owned by you, and electronic direct deposits to your account available to you on the date we receive the deposit.
Next-Day Availability. We will make funds available for the following items on the first business day following their deposit, provided they are made payable to you:
- U.S. Treasury checks under $5,525; and
- State and local government checks, cashier's checks, certified checks, teller's checks, Federal Reserve Bank checks and Federal Home Loan Bank checks under $5,525.
- Checks drawn on Morgan Stanley Private Bank customers and under $5,525.
Other Check Deposits.
- U.S. Treasury checks over $5,525: The first $5,525 will be available on the first business day after the date of your deposit. The remaining funds will be available on the fourth business day after the date of your deposit.
- State and local government checks, cashier's checks, certified checks, teller's checks, Federal Reserve Bank checks and Federal Home Loan Bank checks over $5,525: The first $5,525 will be available on the first business day after the date of your deposit. The remaining funds will be available on the fourth business day after the date of your deposit.
- Other checks: The first $225 will be available on the first business day after the date of deposit, an additional $5,300 will be available on the second business day after the date of deposit, and the remaining amount will be available on the fourth business day after the date of deposit.
- If you make the deposit of a check drawn on a Morgan Stanley Private Bank account and over $5,525: The first $5,525 will be available on the first business day after the date of your deposit. The remaining funds will be available on the second business day after the date of your deposit.
Longer Delays May Apply. Funds you deposit by check may be delayed for a longer period under the following circumstances:
- We believe a check you deposit will not be paid;
- You redeposit a check that has been returned unpaid;
- You have overdrawn your account repeatedly in the last six months;
- There is an emergency, such as failure of computer or communications equipment;
- You deposit checks totaling more than $5,525 on any one day.
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 fourth business day after the date of your deposit.
Initial Deposit. All initial deposits made by an existing or new customer for an additional or new account that is funded from ACH debit entries that we originate, will be available on the third business day after the date of deposit.
ACH Credit Entries. For all subsequent deposits, funds received from ACH credits that we originate (Transfer Money) will be available on the third business day after the date 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 (i.e., wires and ACH credit transfers) to your account will be available on the day we receive the deposit.
Other than the hold times listed below – any Mobile Check Deposits processed before 4 p.m. ET and in good order, will post to your account at the end of that business day. Check deposits made after 4 p.m. ET will be processed the following business day.
The first $5,525 of a day's total deposits from cashier's, certified, teller's, and federal, state and local government checks will be available on the first business day after the date of your deposit. The excess over $5,525 will be available on the fourth business day after the date of your deposit.
Funds from all other check deposits will be available on the fourth business day after the date of your deposit.
4. INTEREST ON DEPOSITS
Please see our "Rate and Fee Schedule" for information on interest paid on interest-bearing accounts.
Authorized Signers. Your signature card (or electronic account opening record) identifies who is authorized to make withdrawals, write checks, transfer funds, stop payments, obtain ancillary services, and otherwise give us instructions regarding your account. We may act on the signature or instruction of any one of the authorized signers on your account.
We may pay any check that bears the signature or endorsement (including a facsimile signature) resembling any authorized signature on file with us. You agree that signatures by your authorized agents (e.g., persons acting under a power of attorney) are valid, even if the principal-agent relationship is not indicated on the check or instruction.
We may honor checks drawn against your account by authorized signers, even if the checks are made payable to them, or for deposit to their personal accounts. We have no duty to investigate or question withdrawals or the application of funds.
If we accept a signed request by you (by mail or fax) to withdraw funds, we may mail a check payable to the account holder(s). Funds may be transferred to other bank accounts by telephone request through Bank personnel or over the Internet, if you participate in our online banking services. We may refuse any withdrawal request against uncollected funds.
Requirements. We may refuse to pay any check that bears a signature that, in our opinion, does not satisfactorily compare with the specimen signature on file with us. All checks written on your account must be drawn in U.S. Dollars. If your checks are presented for payment or acceptance on a weekend, a holiday, or after our processing cutoff hour, we may treat them as if we had received them on the next business day.
Order of Payments. We process your checks, ATM transactions, point-of-sale payments and other transactions in the order they are received. If you want to avoid service charges for nonsufficient fund ("NSF") transactions, as well as the possibility of returned checks and rejected transactions, you should ensure that your account contains sufficient collected and available funds for each of your transactions.
Discrepancies. If there is a discrepancy in a check you have written between the amount in numbers and the amount in words or embossed numbers, we may dishonor the item, without liability.
Limitations. At our discretion, we may require the signatures of all account owners for the withdrawal of funds and/or the closing of an account.
Certain accounts are subject to transaction limitations and penalties for early withdrawal. Please see our "Rate and Fee Schedule" for details. We may refuse to honor any withdrawal or order if funds on deposit are insufficient or unavailable to cover the request or order or there is a dispute or question as to the ownership of account funds.
Advance Notice. We reserve the right to require seven days advance written notice of an intended transfer or withdrawal of funds from any savings account and money market deposit account. We currently do not exercise this right.
6. ACCOUNT LIMITATIONS
Deposits. We may refuse to accept a deposit to an account, limit its size, or return all or part of it to you. We reserve the right to limit the amount of funds that may be maintained in an account.
Money Market and Savings Accounts. You may only make up to six withdrawals and/or transfers each monthly statement cycle by check (for accounts with check privileges), preauthorized or automatic transfer (e.g., automatic payments to an insurance company), draft, point-of-sale debit ("POS") card, telephone and/or electronic banking. If you exceed this limitation, we may convert it to another type of account for exceeding the limits. Note: We count checks for purposes of the transaction limitation as of the date we post them to your account (not as of the date you write them). As such, a check you write during one statement period may not be counted until a subsequent statement period.
This does not limit the number of withdrawals you can make at an ATM. Nor is there any limit on the number of deposits that can be made to your account each month (e.g., check deposits or by preauthorized or automatic transfer).
Time Deposits. Unless our written agreement with you says otherwise, you do not have a right to make early or partial withdrawals from, or additional deposits to, an existing time deposit. See our Rate and Fee Schedule regarding penalties imposed for early withdrawals.
Our Rate and Fee Schedule describes the most frequently encountered fees associated with our accounts and services. Some services are negotiated separately and may be subject to other written agreements with us. Information on fees for services not covered by the schedule is available upon request. In addition to fees, you agree to pay all taxes, tariffs and assessments levied or imposed by any government agency in connection with your account or account-related services (excluding any income tax payable by us).
If a minimum average balance is required to avoid a fee, the average balance is calculated by adding the principal in the account for each day of the period and dividing that figure by the number of days in the period.
Monthly service charges are earned the first day of the statement period and collected on the last day of the statement period. Service charges are not prorated for partial months. Certain fees may change without specific notice to you. Account owners must promptly pay the fees and charges associated with their accounts and services, and are jointly and severally liable for such fees. We may deduct account fees automatically from your accounts.
8. ELECTRONIC FUND TRANSFERS
The following terms apply to electronic fund transfers governed by the Federal Electronic Fund Transfer Act (e.g., consumer ATM, POS, Online Banking, RTP, and ACH). It also applies to ATM and debit cards issued for business and other non-personal accounts as well as certain international wire transfers. Any authorized signer on an account may apply for electronic fund transfer services on behalf of all authorized signers.
Automated Teller Machine ("ATM") and Debit Cards. You can perform the following transactions with an ATM card or debit card (each a "Card"), depending on the accounts and services associated with your Card, subject to any applicable restrictions:
- Withdraw cash from your checking or money market account;
- Pay for purchases at places that honor the debit card;
- Purchase United States postage stamps at certain locations;
- Obtain account balance information (These transactions are not covered by the error resolution or liability provisions of this section. Balance information may not reflect recent transactions, and may include funds that are not available for immediate withdrawal)
Electronic Presentment/Posting. We may charge your account on the day that a check or other transaction is presented (or returned) to us directly or electronically for payment. We may charge your account or place a hold on funds at an earlier time if we receive notice that a check or other item deposited to your account is being returned, or if we receive notice that your check or electronic payment (e.g., at a point-of-sale) is being processed for collection. Please note: Some merchants may obtain authorizations in advance for point-of-sale transactions in an amount greater than the final transaction amount. You agree that we may place a hold on sufficient funds to cover the amount of the authorized transaction, pending its final settlement through the system, even if that amount exceeds the actual amount of the transaction. This could affect the balance available to cover other transactions.
If you have a debit card, you also can use the card to purchase goods and services at those places that honor the debit card. Some services may not be available at all ATM or POS terminals.
Cards can be used at ATM and POS terminals (debit cards only) that are part of the networks in which we participate. Your Card cannot be used to transfer money into or out of your account without a personal identification number ("PIN") at ATMs and most POS terminals. If you decide you do not want to use your Card, destroy it at once by cutting it in half and notify us in writing. You may be asked to sign a sales slip or provide identification, rather than enter your PIN, for certain debit card transactions. At some merchants, such as gas stations, you may not be required to sign your name or enter your PIN for a debit card purchase; however, you may be required to enter your ZIP code or another identifier.
When you use your debit card to pay for goods or services, certain merchants may ask us to authorize the transaction in advance and may estimate its final value. When we authorize the transaction, we commit to make the requested funds available when the transaction finally settles and may place a temporary hold on your account funds for the amount indicated by the merchant. We also may add an amount for certain merchants to ensure that sufficient funds will be available to cover the ultimate transaction. Until the transaction finally settles, or we determine that it is unlikely to be processed, the funds subject to the hold will not be available to you for other purposes. We will only charge your account for the final amount of the final transaction, however, and we will release any excess amount when the transaction settles.
ATM Safety. You agree to exercise discretion when using ATMs. If there are any suspicious circumstances, do not use the ATM. If you notice anything suspicious while transacting business at the ATM, cancel the transaction, pocket your Card and leave. Be careful when using the ATM and be aware of the surroundings, especially at night or in isolated areas. Park near the ATM in a well-lighted area. At night, have someone accompany you when possible. Do not approach a dark ATM. Do not accept assistance from anyone while using the ATM. Don't display your cash; pocket it and count it later in the safety of your office or home. Be sure to save your transaction slips. Check them against your statements regularly. Make sure you safeguard your PIN – do not write it on your Card or carry it in your wallet or purse. Always secure your Card just like you would your cash, checks and credit cards. Report all crimes to the ATM operator and local law enforcement officials immediately. We do not guarantee your safety while using the ATM.
Card and PIN Security. You agree not to disclose or otherwise make your Card or PIN available to others without our prior written consent. For security reasons, you agree not to write your PIN on your Card or keep it in the same location as your Card. Your Cards must be returned to us upon request.
Refunds on Purchases. Cash refunds will not be made to you for purchases made with your debit card. If a merchant gives you a credit for merchandise returns or adjustments, it may do so by processing a credit adjustment, which we will apply as a credit to the account from which the original funds were debited.
Foreign Transactions. If you conduct a transaction in a currency other than U.S. dollars, the merchant, network or processor will convert any related debit or credit into U.S. dollars in accordance with its then current policies. The conversion rate may be different from the rate in effect on the date of your transaction and the date it is posted to your account. We will impose a charge equal to 1% of the transaction amount (including credits and reversals) that you conduct outside the United States or in a foreign currency.
ATM and POS Limitations. You may withdraw up to $1,000 per calendar day per card from an ATM with an ATM card or debit card. You may conduct POS transactions with a debit card up to $5,000 per calendar day, per card. You do not have a right to stop payment on any Card sales draft or cash withdrawal slip originated by the proper use of your Card. For security reasons, there may be times when we further limit these amounts. Different limitations may apply at terminals that are not owned and operated by us. You may not use your Card or account to gamble on the Internet.
Other Terms. Please see the "Other Electronic Terms" section for other terms applicable to ATM and debit card transactions.
Internet Banking Service. Internet Banking has two main components:
- Online Account Access – You can obtain information about eligible accounts and transactions, make transfers between your accounts with us, and communicate with us electronically.
- Online Bill Payments – You can make payments to others.
Computer Requirements. To use the service, you must have a personal computer equipped with access to the internet. You are responsible for the selection, installation, maintenance, and operation of your computer and software. We are not responsible for any errors, failures, or malfunctions of your computer or software, or for any computer virus or related problems that may occur with your use of this service. You are responsible for ensuring that your computer and software are compatible with our system. We reserve the right to change our system requirements from time to time.
WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY, WITH RESPECT TO ANY COMPUTER PROGRAMS, EQUIPMENT OR SOFTWARE MADE AVAILABLE TO YOU.
Online Banking Accounts. In order to use the service, you must be a primary or joint account holder with a valid U.S. Social Security or Tax ID number of an open account with us. At our discretion, we may refuse to allow certain accounts to be linked to the service.
Account Balance and Transaction Information. You can use your computer to obtain rate, service, account balance and transaction information anytime of the day, seven days a week, except when the system is unavailable for maintenance or other reasons. Please note that the information provided may not include recent transactions and may include funds that are not subject to immediate withdrawal.
Transfers. You may make transfers between your eligible accounts with us. Transfers cannot be made to/from time deposit accounts.
Online Bill Payments. This service allows you to make payments to others from your designated checking account with us. If you link more than one checking account to the service, you must specify which account you wish to use in making payments. We may refuse to allow bill payments from an account that requires more than one signature for withdrawals. Separate terms and conditions may apply to our bill payment service and will be available to you when you enroll and use the service.
Non-Bank Services. Online bill payment services may be available from a party other than us. If you subscribe to receive these services from another party, we assume no responsibility for their actions or omissions. Also, we assume no responsibility with respect to any functions or features of software which may be made available to you outside of the payment and transfer functions described in this agreement.
Other Terms. Please see the "Other Electronic Terms" section for other terms applicable to this service.
Preauthorized/Automatic Transfers. Pre-authorized electronic fund transfers may be made to your account from a third party (e.g., Social Security, a pension fund, or your employer) or from your account to a third party (e.g., recurring mortgage or insurance payments through the Automated Clearing House ("ACH")). "Pre-authorized transfer" does not include: (a) transactions initiated by check, draft or similar paper instrument, (b) transfers to or from business or other non-personal accounts, (c) individual transfers we initiate under an agreement with you, but without your specific request (e.g., automatic savings or automatic loan payments to us from your account), or (d) transfers initiated by telephone. Please note: If governmental recurring or other electronic payments are made into your account, the payments may be affected by a change in account status or transfer (e.g., to another office). If you plan to transfer your account or change its status, please speak with us in advance about the impact the change may have on your electronic fund transfer services.
Please see the "Other Electronic Terms" section for other terms applicable to this service.
Electronic Check Conversion. You may authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to pay for purchases or pay bills. If you believe one of these transfers has been made without your permission, notify us at once by calling 800-387-2331.
Please see the "Other Electronic Terms" section, below, for additional terms.
Telephone Banking Service. You can use this service to obtain account information. Please note that balance information may not reflect recent transactions, and may include funds that are not available for immediate withdrawal. The balance information feature is not subject to the error resolution or liability sections set forth below.
Please see the "Other Electronic Terms" section, below, for other terms applicable to this service.
Other Electronic Terms.
Limitations. Certain transaction limitations are imposed on Money Market Deposit and Savings Accounts (See the "Account Limitations" section).
Record of Your Transactions.
- Preauthorized Credits. If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can log in to your account at etrade.com or call us at 800-387-2331 to find out whether or not the deposit has been made.
- Account Statement. You will get a monthly account statement unless there are no transfers in a particular month. In any case you will get a statement at least quarterly.
- Varying Preauthorized Transfers. If you have arranged in advance to make regular payments out of your account and they may vary in amount, the person you are going to pay will tell you 10 days before each payment when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment or when the amount would fall outside certain limits that you set.
Our Liability for Failing to Make Transfers. If we do not complete an electronic fund transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. There are some exceptions, however. We will not be liable, for instance, if:
- Through no fault of ours, you do not have enough available funds in your account to make the transfer;
- The transfer would exceed any available Coverdraft funds you have with us;
- Circumstances beyond our control (such as fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, telephone line disruption or a natural disaster) or a rolling blackout prevent or delay the transfer despite reasonable precautions taken by us;
- The system, ATM or POS terminal was not working properly and you knew about the problem when you started the transaction;
- The funds in your account are subject to legal process, an uncollected funds hold or are otherwise not available for withdrawal;
- The information supplied by you or a third party is incorrect, incomplete, ambiguous or untimely;
- We have reason to believe the transaction may not be authorized by you;
- The transaction cannot be completed because your card is damaged;
- We process your Internet payment in a timely manner, but the payee rejects your payment or fails to process it in a timely manner; or
- You fail to follow service instructions on how to make a transfer or bill payment.
There may be other exceptions stated in our agreement with you.
Your Liability for Unauthorized Electronic Fund Transfers. Tell us AT ONCE if you believe your Card, PIN or password has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your account. If you tell us within two business days after you learn of the loss or theft of your Card, PIN or password, you can lose no more than $50 if someone used your Card, PIN or password without your permission. If you do NOT tell us within two business days after you learn of the loss or theft of your Card, PIN or password, and we can prove we could have stopped someone from using your Card, PIN or password without your permission if you had told us, you could lose as much as $500.
Unless we determine that you were grossly negligent or fraudulent in the handling of your account or Card, you will not be liable for the $50 or $500 amounts described above for transactions conducted with your debit card. Also, if your statement shows transfers that you did not make, including those made by Card, PIN, password or other means, tell us at once. If you do not tell us within 60 days after the statement was sent or otherwise made available to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time.
If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
Business and Other Non-personal Accounts. The provisions in this Electronic Fund Transfers section dealing with "Our Liability for Failing to Make Transfers," "Your Liability for Unauthorized Electronic Fund Transfers," and "In Case of Errors or Questions About Your Electronic Fund Transfers" (and related provisions on the back of periodic statements) do not apply to business or other non-personal accounts. You should notify us immediately if you discover any unauthorized transactions or errors, and must send us a written notice of the problem within a reasonable time (not to exceed 14 days from the date of discovery or your receipt of the first statement or notice reflecting the problem, whichever occurs first).
Under no circumstances will we be liable for any special or consequential damages involving such accounts.
You are liable for all unauthorized transactions made with your debit card or the PIN associated with your Card that occur prior to the time you notify us to cancel your Card, that an unauthorized transaction has taken place, or that your Card or PIN has been lost or stolen. There is one exception to this liability: Unless you are grossly negligent or fraudulent in the handling of your debit card or account, you will not be liable for unauthorized signature-based debit card transactions. It is important that you review your statements closely, however. If you fail to notify us of unauthorized transactions within 60 days of the date of the first statement showing unauthorized activity, you will be liable for unauthorized transactions that occur after the 60-day period.
Debit card transactions are not considered unauthorized if they are made by a business co-owner or any other person with an interest in or authority to transact business on your account, even if the person exceeds any authority given by you.
How to Stop Preauthorized Transfers From Your Account. If you have told us in advance to make regular payments out of your account, you can stop any of these payments by writing to us at Morgan Stanley Private Bank, Attn: Payment Services Department, P.O. Box 484, Jersey City, NJ 07303-0484, or by calling us at 800-387-2331.
We must receive your request at least three business days before the payment is scheduled to be made. (Note: If you fail to give us your request at least three business days prior to a transfer, we may attempt, at our sole discretion, to stop the payment. We assume no responsibility for our failure or refusal to do so, however, even if we accept the request for processing.) If you call, we may require you to put your request in writing to us and to provide us with a copy of your notice to the payee, revoking the payee's authority to originate debits to your account, within 14 days after you call. If we do not receive the written confirmation within 14 days, we may honor subsequent debits to your account. For individual payments, your request should specify the exact amount (dollars and cents) of the transfer you want to stop and the identity of the payee. Unless you tell us that all future transfers to a specific recipient are to be stopped, we may treat your stop payment order as a request concerning the one transfer only. If you order us to stop one of these payments at least three business days before the transfer is scheduled and we do not do so, we will be liable for your losses or damages.
Lost or Stolen Card/PIN/Password. You agree that we may confirm your identity and authorization for transactions by means of the Card, PIN, User ID and/or password assigned to you for an electronic fund transfer service or any other online transaction. If you believe your Card, PIN, User ID or Password has been lost or stolen, or that someone has transferred or may transfer money from your account without your permission, call us at the number or write us at the address described in the preceding section. You should also call that number or write to that address if you believe a transfer has been made using the information from your check without your permission.
In Case of Errors or Questions About Your Electronic Transfers. Write to us at Morgan Stanley Private Bank, Attn: Payment Services Department, P.O. Box 484, Jersey City, NJ 07303-0484, faxing us at 1-866-289-1404, or by calling us at 800-387-2331 as soon as you can if you think your statement or receipt is wrong or if you need more information about an electronic transaction. We must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared.
- Tell us your name and account number.
- Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
- Tell us the dollar amount of the suspected error.
In addition, it would be helpful if you provided us with any supporting documentation related to the error. If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days.
We will determine whether an error occurred within ten (10) business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time that it takes us to complete our investigation. In certain instances, we may provide credit sooner. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
For errors involving new accounts, POS, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error. We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
Fees. See our current Rate and Fee Schedule for charges related to electronic fund transfer services.
Business Days. Our business days are Monday through Friday, excluding federal holidays.
Release of Account Information. We may release information regarding your account and the transactions you perform under certain circumstances. See "Release of Account Information" in the "Additional Terms and Conditions" section.
Change in Terms/Termination of Service. We may change (add to, delete or amend) the terms or terminate your use of our electronic fund transfer services at any time, with or without cause and without affecting your outstanding obligations under this Agreement. We may terminate or suspend your electronic fund transfer service immediately if: any of you breach this or any other agreement with us; we have reason to believe that there has been or may be an unauthorized use of your account, Card or PIN; there are conflicting claims to the funds in your account; or any of you requests that we do so. If you ask us to terminate your account or the use of any Card, you will remain liable for subsequent transactions performed by you or any authorized user.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO RESOLVE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE THE CLAIM IN COURT. YOU ARE GIVING UP THE RIGHTS YOU MIGHT HAVE TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED. YOU SHOULD CONSULT LEGAL COUNSEL TO DETERMINE WHETHER THIS ARBITRATION CLAUSE IS APPROPRIATE FOR YOU.
All disputes, claims, or controversies between you and the Bank regarding your account or any account-related services, except claims subject to the jurisdiction of the small claims court (or your state's equivalent court), shall be resolved by binding arbitration at the election of either party.
This applies to all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, disputes arising out of or relating to your relationship with the Bank, your account with the Bank, or relating to any service provided by the Bank in connection with your account, as well as all such disputes between you and the Bank's officers, employees, agents, or affiliates.
The arbitration shall be conducted according to the rules then in effect of the American Arbitration Association. The Web address of the American Arbitration Association is www.adr.org and their telephone number is 800-778-7879. The matter shall be heard by one arbitrator unless the amount in controversy exceeds $75,000, in which event three arbitrators shall hear the case. A submission to a single arbitrator will be deemed a waiver of any right to recover more than $75,000. This arbitration agreement concerns transaction in interstate commerce and shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. The award of the arbitrators or of the majority of the arbitrators will be final and binding, and judgment on such award may be entered in any court having jurisdiction. This arbitration agreement shall be binding upon each party's heirs, administrators, representatives, executors, successors, assigns, and all other persons claiming a legal or beneficial interest in your account. Any costs, attorneys' fees or taxes involved in confirming or enforcing the award will be fully assessed against and paid by the party resisting confirmation or enforcement of the award.
Except as otherwise required by law: (a) you may not assert claims on behalf of others in an arbitration proceeding (e.g., in a representative or private attorney general capacity), and (b) the arbitrator shall not have the authority to award relief for or against anyone on a class or representative basis.
The parties agree and understand that the arbitrator shall have all the powers provided by law and the rules of the arbitration forum. Those powers shall include all legal and equitable remedies, including, but not limited to, money damages, declaratory relief, and injunctive relief, available under applicable law. The institution and maintenance of any action for judicial relief in a court to obtain a monetary judgment or enforcement shall not constitute a waiver of the right of any party to compel arbitration regarding any dispute or remedy subject to arbitration.
If you initiate arbitration, the Bank will pay one half of any arbitration filing fee. You will pay the rest of the filing fee and all of the arbitration fees charged by the arbitration forum and the arbitrator through the first day of the arbitration, up to a maximum of eight hours. The Bank and you will
split any remaining fees. The arbitrator(s) shall have the power to assess in the award all or part of the filing fees and arbitration fees to either party. If you believe the cost of arbitration may be too burdensome, you may contact the arbitration forum to seek a waiver and, if that is not successful, you may contact the Bank and request that the Bank pay a greater share of the arbitration fee. If the laws of the State in which you are a resident require Morgan Stanley Private Bank to pay all forum fees, Morgan Stanley Private Bank will pay those fees.
You consent to the personal jurisdiction of the courts of the State of New York, U.S.A. for all purposes relating to this arbitration agreement; and you agree that the arbitration shall be conducted in the English language. If you reside outside the United States at the time of arbitration, you agree that the arbitration will be held in New York, New York.
If any part of this arbitration clause is determined to be void or unenforceable for any reason, the remainder of this arbitration clause shall remain in effect to the maximum extent possible and the void or unenforceable part shall be severed from the rest of the agreement. However, any dispute as to the validity of this arbitration clause, including the waiver of rights to participate in any class action, shall be determined by a court of competent jurisdiction. In the event that the class action (or similar representative action) waiver in this arbitration clause is deemed invalid, then the entire arbitration clause shall be null and void.
This section will not be deemed to limit or constrain our right of set off, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien we may hold in property, or to comply with legal process involving your accounts or other property.
10. ADDITIONAL TERMS AND CONDITIONS
Adjustments. We may make adjustments to your account whenever a correction or change is required. Adjustments might occur, for example, if deposits are recorded in the wrong amount or items you deposit are returned unpaid. We may elect, at our discretion, not to make an adjustment to your account to correct an error which you or a third party (e.g., another financial institution) cause if the adjustment is less than $5.00 or our cost to make the adjustment is greater than the amount in question.
Amendments/Changes in Account Terms. We may change (add to, delete or alter) the terms of our agreement with you at any time by mailing, emailing or delivering a notice, a statement message or an amended agreement to any of you at the last address (location or email) on file for you, your account, or the service in question. Unless otherwise required by law, we may amend the agreement without prior notice (e.g., by posting the information at our Internet Web site, or otherwise making it available to you). We may substitute similar services or discontinue currently offered services for certain accounts by giving you prior notice.
Changes in Account Ownership, Address and Authorized Signers. You agree to notify us immediately in writing of any change in your name, address, business capacity (e.g., sole proprietor to corporation), or the authorized signers on your account. We may require a new signature card or other documentation before giving effect to any change in ownership or authorized signers.
If the owners or authorized signers on your account change, we may continue to honor items and instructions given earlier by any previously authorized person(s) until we receive specific notice from you in writing not to do so (Note: A new or updated signature card, by itself, does not constitute notice to terminate any pre-existing payment or transfer plan). In some instances, we may require you to close your account or provide us with stop payment orders in order to prevent transactions from occurring. There may be a delay in implementing a change in the authorized persons on our records, and you agree that we will be given a reasonable opportunity to make the changes necessary.
We may rely solely on our account records to determine the ownership of your account.
Checks. Check prices vary according to the types of checks you select. You can obtain information on the current price of checks by contacting your office of account. 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 arrange for the printing of your own checks, the form, encoding and format of the checks must follow our check specification requirements and be approved by us in advance. 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. Checks that you order through us may include fraud prevention features. If you choose not to use them or order checks from others that do not include fraud prevention features, you agree to assume a heightened degree of responsibility for safeguarding your checks, and for reviewing all returned checks and statements as soon as you receive them.
Checks Bearing Notations. 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," "Void over $50.00," "Payment in Full," and the like), whether on the front or back, in any form or format. If you 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.
Check Endorsement. Federal regulations provide that the top 1½ inches on the back of a check (when read vertically from the trailing edge) is designated for your endorsement as payee. If you endorse a check in the area outside of the endorsement area, mark or otherwise obscure the other area, or make an endorsement which is illegible or incomplete, you agree to hold us harmless from any loss, delay, liability, claim, or damage which occurs as a result.
Check Images Online. We do not return canceled checks to you. While your account remains open, you can obtain and review copies of your checks at no cost through our online banking service. You also can request a copy of a check by providing us with the following information: check number, amount, the payee, and the date the item was paid. We will not be responsible for any special or consequential damages under any circumstances for our inability to provide copies of checks for any reason. Our liability, if any, will not exceed the face amount of the check in question. You agree to provide us with reasonable proof of your loss.
Checks Lost or Stolen. You agree to safeguard your blank checks, and to take reasonable steps to prevent their unauthorized use. If you are a business, you should store them under dual control in a secure, locked location that is accessible only to authorized personnel. 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" or "Refer to Maker." You will be responsible for issuing any replacement checks.
When you deposit a check or other item with us, we act as your agent to collect the item. The risk of loss of an item in the process of collection is on you. We may reverse any credit given and any interest earned or accrued for a deposited item that is lost in transit. You will do everything reasonably within your ability to promptly assist us to find, identify or replace a lost item, including but not limited to maintaining a record of the maker of items delivered to us for deposit and collection. We shall not be liable to you if an item is lost in the process of collection, provided we exercised ordinary care in handling the item. In no event shall we be liable to you if you cannot identify the maker of the lost item.
Check Processing Cutoff Hour. If we receive an item for deposit or payment on a weekend, a holiday or after 4 p.m. ET on a business day, we may treat it as if we had received it on the next business day. Our processing cutoff hour with respect to any knowledge, notice, stop payment or postdated check order, or legal process received by us involving a check is one hour after the opening of the business day following the business day on which we receive the check. The cutoff hour with respect to setoffs exercised by us is midnight of the business day following the business day we receive a check, or such later time by which we must return the check. The cutoff hour determines our obligation under state law to pay or return certain checks that have been received but not finally paid by us on the previous business day.
Check Verification. We process certain checks by automated means based on information encoded on the checks. As such, we may not physically examine all checks to determine if they are properly signed or completed. You agree that we may rely on such a process and that it will be deemed an acceptable standard of care on our part.
Compliance. You agree to comply with applicable law, including without limitation, the economic sanctions administered by the U.S. Treasury's Office of Foreign Asset Control. You may not use your account or our services for any illegal activity. You agree to indemnify, defend and hold us harmless from every action, proceeding, claim, loss, cost and expense (including attorney's fees) suffered or incurred by us due to any U.S. or foreign government entity seizing, freezing or otherwise asserting or causing us to assert control over any account or funds in an account of yours (or ours) when purportedly caused by or arising out of your action or inaction. This will apply whether or not such action is ultimately determined to be authorized under the laws of the U.S. or its territories, or of any foreign jurisdiction. We are not required to inquire or determine the authority of any action taken by the U.S. or foreign government entity prior to acceding to any legal process initiated by it.
Conflicting Demands/Disputes. If there is any uncertainty or conflicting demands regarding the ownership of an account or its funds, we are unable to determine any person's authority to give us instructions, we are requested by any state or local agency to freeze the account or reject a transaction due to the suspected financial abuse of an elder or dependent adult, or we believe a transaction may be fraudulent or may violate any law, we may, at 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 assert such rights or to deny a transaction.
Consent to Gather Information. Each of you authorizes us to obtain information from time to time regarding your credit history from credit reporting agencies and other third parties.
Coverdraft Protection. Coverdraft Protection is available for checking accounts and money market accounts. You must affirmatively enroll an eligible account to receive the coverage. If you overdraw your eligible account, we may use our Coverdraft protection service to transfer funds from another one of your bank accounts (where the accounts are held by the same parties and are under the same primary taxpayer identification number) to cover the overdraft. Transfers are at our sole discretion and may be made in $100 increments. A fee will be assessed to your eligible account for each transfer. Coverdraft protection does not involve the lending of funds, but rather transfers of available funds between your accounts.
Death or Adjudication of Incompetence. You agree to notify us immediately of the death or court-declared incompetence of any owner, authorized signer or designated beneficiary on your account. We may disregard any notice of incompetence unless the person in question has been declared incompetent by a court of appropriate jurisdiction and we receive written notice and instructions from the court regarding the account. We also may freeze, offset, refuse and/or reverse deposits and transactions (e.g., governmental or retirement benefit payments payable to the deceased) if an owner dies or is adjudicated incompetent. If we are obligated to return funds removed from the account following the death or incompetence of any owner, the other owners agree to reimburse us for the amount.
If we have any question as to the ownership of funds or the amount of funds that belong to any person upon the death of an owner, we may freeze all or part of the account, pending receipt of proof (satisfactory to us) of each person's right to the funds.
Demand Drafts and Remotely Created Checks. If you provide your account number to a third party in order to charge your account by means of one or more remotely created checks or demand drafts (i.e., items which do not bear your actual signature, but purport to be drawn with your authorization), you authorize us to pay such items, even though they do not contain your signature and may exceed the amounts you authorized to be charged. 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 previously. We are not under any obligation to verify whether the name and account number shown on such items are consistent.
You may not deposit demand drafts or remotely created items to an account with us without our prior, express written consent.
Electronic Instructions. We may, but are not required to, act upon instructions received by fax transmission, voice mail, email, or online secured messaging.
Facsimile Signatures. We may refuse to accept or may pay items bearing facsimile signatures. You agree to assume full responsibility for any and all payments made by us in reliance upon signatures that resemble the actual or facsimile signature(s) that any of you provide to us in connection with your accounts or services.
You authorize us to pay any check that appears to bear your authorized facsimile signature, without further inquiry. You agree to indemnify, defend and hold us harmless from any and all actions, claims, losses, damages, liabilities and expenses (including attorney's fees) arising directly or indirectly from the misuse or the unlawful or unauthorized use or copying of facsimile signatures (whether affixed manually, by stamp, mechanically, electronically or otherwise).
Financial Statement. You will provide us with a current financial statement upon request.
Governing Law. To the extent this Agreement is subject to the laws of any state, it will be subject to the laws of New York, without regard to its conflict of law provisions. Unless otherwise provided in this Agreement, we may comply with applicable clearinghouse, Federal Reserve Bank and correspondent bank rules in processing transactions. You agree that we do not have to notify you of a change in those rules, except to the extent required by law.
Inactive Accounts. 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 transaction's authorization. Service charges for "inactive accounts" are the same as service charges for active accounts. Charges are not reimbursed for inactive accounts that are later reclassified as "active."
We may transfer (escheat) your property to the appropriate state if no activity occurs in the account or you fail to communicate with us regarding your account within the time period specified by state law. If funds are transferred to the state, you may file a claim with the state to recover the funds.
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, attorney 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. We may notify you of such process by telephone, electronically or in writing. 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.
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.
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, 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.
Limitation on Time to Sue/Arbitrate. Unless otherwise required by law, an action or proceeding by you 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 no later than one year after the day the cause of action accrues.
Monitoring Communication. We may elect to monitor or record any of your telephone conversations with us for quality control purposes and for our own protection. We may also monitor and make a record of your use of any service and any other communications between Morgan Stanley Private Bank and you and may use the resulting information for internal purposes or as may be required by applicable law. We do not monitor or record all telephone lines or calls, and we do not guarantee that recordings of any particular telephone calls will be retained or can be retrieved. Unless otherwise agreed in writing, we do not consent to the recording of telephone conversations by any third party or you.
New Account Verification. We may use a third party service to verify and obtain information regarding your previous banking relationships. We may also report the status, history and/or closure of your account to such third party services.
Overdrafts. If you do not have sufficient available funds on deposit to cover the amount of a check or other transaction (e.g., ATM withdrawal, automatic payment, or other electronic transaction), we may return the check or reject the transaction without payment.
If we permit an overdraft or otherwise allow your account balance to drop below zero, you agree to pay the amount of the overdraft promptly, without notice or demand from us. You agree that we may use subsequent deposits and other credits to the account, including without limitation deposits of government, welfare, retirement and Social Security benefits, to cover any overdraft existing in your account, to the fullest extent permitted by law.
Each account owner is jointly and severally responsible for paying any overdrafts created by any authorized signer or party to the account, whether or not the owner participates in the transaction or benefits from its proceeds.
Our payment of any checks or allowance of transactions that create overdrafts in no way obligates us to continue that practice at a later time. We may discontinue permitting overdrafts without cause or notice to you. We discourage the practice of overdrawing accounts.
"Pay-on-Death" Accounts. This type of account passes to the designated beneficiaries on the death of an owner (or all of the owners if this is a joint account). During their lifetime, the owner(s) may exercise full control over the account and may make deposits to and withdrawals from the account. Upon the death of the last surviving owner, the account funds pass to the surviving beneficiaries. If there is more than one surviving beneficiary, each will receive an equal share of the funds, unless we have been instructed otherwise by the owner(s) in writing. The owner(s) may change beneficiaries during their lifetimes by updating our account documentation. Owners should keep us informed about each beneficiary's address.
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. We will not incur any liability in the event the original item is later presented to and paid by us, unless a stop payment order is in effect for the check.
Postdated Checks. Unless you provide us with a written postdated check notice that describes a postdated check with reasonable certainty, we may pay or return the check at our discretion. Your notice must include the exact amount (dollars and cents), account number, check number, date of check and the name of payee. If you provide us with a postdated check notice in a time and in a manner which affords us a reasonable opportunity to act on it, we will not pay the item and may return it (marked "payment stopped", "postdated" or otherwise) if it is presented to us prior to the date indicated in the order (up to six months from the date of the notice). After six months, a notice is no longer effective and must be renewed. We may impose a fee for each notice. If we re-credit your account after paying a postdated check over a valid and timely postdated check notice, you agree to transfer to us all of your related rights against the payee or other holder of the check, and to assist us in legal action taken against that person.
Power-of-Attorney. Any owner may appoint an attorney-in-fact for an account and may revoke a power of attorney. You should notify us in advance if you plan to create a power of attorney involving your account. We generally will accept a Uniform Statutory Form Power of Attorney that complies with state law. We may refuse to accept other forms of powers of attorney, however, with or without cause.
We may act on the instructions of an attorney-in-fact whether or not the attorney-in-fact relationship is noted in the instruction (e.g., on any check signed by the attorney-in-fact). You can revoke your power of attorney by sending a written notice to us. We assume no duty to monitor the actions of your attorney-in-fact to ensure that (s)he acts for your benefit.
Returned Items/Transactions. If we are notified that an item you deposited is being returned unpaid, we may attempt to reclear the item, place a hold on the funds in question (see "Funds Availability") or charge your account for the amount (and any interest earned on it), whether or not the return or notice of non-payment is proper or timely. This also applies to checks drawn on us which are not paid for any reason, and to checks that are returned to us in accordance with any law, regulation or rule (including a clearinghouse rule). We may assess a fee for each returned item and notify you of the return orally, electronically, or in writing.
If we receive an affidavit or a declaration under penalty of perjury stating that an endorsement on an item deposited to your account is forged, that the item contains an alteration, or that there has been a breach of warranty in connection with the item, we may charge the item back against your account or place a hold on the funds pending an investigation, without prior notice to you.
Security Interest. You grant us a security interest in your account, including all current and future deposits and renewals, for amounts owing to us under this Agreement or under any account service agreement by any owner. This provision does not apply to IRA or tax-qualified retirement accounts or where otherwise prohibited by law.
Setoff. We may charge or set off funds in your account with us or with Morgan Stanley Smith Barney LLC for any direct, indirect and/or acquired obligations that any owner owes us, our affiliates or subsidiaries, regardless of the source of the funds in the account, to the fullest extent permitted by law. This provision does not apply to IRA or tax-qualified retirement accounts or where otherwise prohibited by law.
Severability. If any of the provisions of this Agreement are determined to be void or invalid, the remainder of the Agreement shall remain in full force and effect.
Stale Dated Checks. You agree that we may pay or reject a check which is presented to us for payment more than six months after its date (a "stale dated" 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.
Statements, Notices and Checks. If we provide you with a notice or statement, electronically or otherwise, you must promptly and carefully review it to determine if any errors or problems exist. You agree to notify us immediately of any error, discrepancy or unauthorized transaction you discover on any statement, notice or check. If you fail to do so, you may become responsible for the losses resulting from such failure. If you are a business, you agree not to entrust the writing of checks and the reconcilement and review of your account statements and notices to the same person without frequent monitoring.
Statements and notices are normally sent to the last address (or email address) listed with us for your account. Notify us promptly if you do not receive your statement by the date you normally would expect to receive it. Statements and notices sent or made available to any of you are deemed to be received by all of you. 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 (for returned mail) or otherwise made available to you. We may hold statements if the Post Office notifies us that your mail is undeliverable. At our discretion, we may destroy mail that is returned to us or determined to be undeliverable.
You must mail or deliver all notices to us in writing at Morgan Stanley Private Bank, Attn: Payment Services Department, P.O. Box 484, Jersey City, NJ 07303-0484, or at such other address(es) as we designate. Notices sent elsewhere may be delayed or may not reach the correct office.
Stop Payment Orders. Any owner or authorized signer on your account may request us to stop payment on a check or transaction. Your stop payment order must include the account number, check number, exact amount (dollars and cents), check or transaction date and the name of the payee. We will not be liable for paying a check or transaction over a stop payment order if the order is incomplete or incorrect. We must receive stop payment orders at a time and in a manner which affords us a reasonable opportunity to act upon them.
There is a per check/transaction charge for each stop payment order. Unless we agree to treat your stop payment order as permanent, it will remain valid for only six months. After that, the check may be paid and charged to your account if the order is not renewed for an additional fee.
We are not required to accept oral stop payment orders. If we elect to act upon an oral stop payment order, however, you agree to promptly confirm the order in writing and deliver it to us. If you fail to do so within 14 calendar days, we may release the stop payment. Our records will be conclusive evidence of the existence, details of, and our decision regarding any oral stop payment order or its revocation.
You may not stop payment on electronic, POS debit card transactions, Bank checks, or checks or payments guaranteed by us. Under certain circumstances, however, you may be able to claim a refund on lost, stolen or destroyed Bank checks 90 days following the date of their issuance. Please note that electronic stop payment requests through our online banking system may not be effective in stopping the payment of checks that have been posted to, but not finally paid from, your account on the preceding day. In order to prevent those checks from being paid, you must contact one of our customer representatives by telephone or in writing within one hour after we open on the day following the day we post the items to your account. You also should contact a representative if you wish to stop the payment of a check that has been converted to an electronic transaction by a merchant. Electronic transactions are often processed on the same day and cannot be stopped with a regular check stop payment order.
Subaccounts. For regulatory reporting and reserve purposes, we divide checking accounts into two subaccounts: a checking subaccount and a savings subaccount. If your checking account earns interest, we will pay the same interest rate on both subaccounts. If it does not earn interest, no interest will be paid on either subaccount. In either case, your account will continue to operate, from your perspective, as one account.
We may establish a threshold for the balance maintained in the checking subaccount and may transfer funds periodically from one subaccount to the other to meet that threshold and cover transactions against your account. Your account statements will not reflect the existence of the subaccounts, and our periodic reallocation of funds between subaccounts will not affect your ability to withdraw funds, the interest rate (if any), fees, or other features of your checking account. You agree that we may treat the subaccounts as one and the same account if we receive a levy, subpoena or other legal process regarding either subaccount or your checking account.
Substitute Checks. You agree not to deposit substitute checks, as described below, or checks bearing a substitute check legal equivalence statement ("This is a legal copy...") to your account without our prior written consent. Unless we agree otherwise in writing, our acceptance of such checks shall not obligate us to accept such items at a later time, and we may cease doing so without prior notice.
If we approve the deposit of substitute checks, you agree to indemnify, defend and hold us harmless from all losses, costs, claims, actions, proceedings and attorney's fees that we incur as a result of such checks, including without limitation, any indemnity or warranty claim that is made against us because: (a) the check fails to meet the requirements for legal equivalence, (b) a claimant makes a duplicate payment based on the original check, the substitute check, or a paper or electronic copy of either; or (c) a loss is incurred due to the receipt of the substitute check rather than the original check. Upon our request, you agree to provide us promptly with the original check or a copy that accurately reflects all of the information on the front and back of the original check when it was truncated.
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.
The following notice applies to consumer accounts and supersedes, where inconsistent, other terms in this agreement with respect to substitute checks.
Substitute Checks and Your Rights – Important Information About Your Account
What is a Substitute Check? To make check processing faster, federal law permits banks to replace original checks with "substitute checks." These checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: "This is a legal copy of your check. You can use it the same way you would use the original check." You may use a substitute check as proof of payment just like the original check.
Some or all of the checks that you receive back from us may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or to electronic debits to your account. However, you have rights under other law with respect to those transactions.
What Are Your Rights Regarding Substitute Checks? In certain cases, federal law provides a special procedure that allows you to request a refund for losses you suffer if a substitute check is posted to your account (for example, if you think that we withdrew the wrong amount from your account or that we withdrew money from your account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your account and fees that were charged as a result of the withdrawal (for example, bounced check fees).
The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You also are entitled to interest on the amount of your refund if your account is an interest-bearing account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law.
If you use this procedure, you may receive up to $5,000 of your refund (plus interest if your account earns interest) within 10 business days after we received your claim and the remainder of your refund (plus interest if your account earns interest) not later than 45 calendar days after we received your claim. We may reverse the refund (including any interest on the refund) if we later are able to demonstrate that the substitute check was correctly posted to your account.
How Do You Make a Claim for a Refund? If you believe that you have suffered a loss relating to a substitute check that you received and that was posted to your account, you must send a written notice to us at Morgan Stanley Private Bank, Attn: Payment Services Department, P.O. Box 484, Jersey City, NJ 07303-0484. You must write to us within 40 calendar days of the date that we mailed (or otherwise delivered by a means to which you agreed) the substitute check in question or the account statement showing that the substitute check was posted to your account, whichever is later. We will extend this time period if you were not able to make a timely claim because of extraordinary circumstances.
Your claim must include:
- Your name and account number
- A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect)
- An estimate of the amount of your loss
- An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss
- A copy of the substitute check and/or the following information to help us identify the substitute check: the check number, the date of the check, the name of the person to whom you wrote the check, and the exact amount of the check (dollars and cents)
Termination/Closing Your Account. Any authorized signer(s) may close your account at any time, with or without cause. We are not required to provide notice of such closure to the other authorized signers on the account. We may automatically close your account if the account balance is zero. We may terminate your account relationship with us at any time, with or without cause, by giving oral, electronic or written notice to any of you. If the funds are not withdrawn, we may send a check for the collected account balance to any of you at the last address we have on file for the account. Thereafter, the funds will stop earning interest (even if the check is returned or remains uncashed for any reason). We may dishonor any check, item or transaction presented for payment after an account is closed. At our sole discretion, we may honor checks, items and orders presented or occurring after an account is closed if the transaction is guaranteed by us to third parties (e.g., under a check guarantee or as part of an electronic fund transfer arrangement) or you fail to give us a timely stop payment order for any outstanding checks. You remain responsible for such items and transactions, which may be treated as overdrafts.
Transfers/Assignments. Unless otherwise agreed by us in writing, all accounts are non-transferable and non-negotiable. You may not grant, transfer or assign any of your rights to an account without our prior written consent. 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.
Unauthorized Transactions and Errors. If you discover an error, forgery, alteration or other unauthorized activity involving your account, you agree to notify us immediately by telephone, followed promptly by a written notice to your office of account of the relevant facts. You agree to maintain a current check register and to carefully and promptly review all statements and notices we send to you.
You are in the best position to discover and report any errors or unauthorized transactions involving your account. If you fail to notify us within a reasonable time (not exceeding 21 calendar days from the date of your statement) of an unauthorized signature, alteration, forgery, counterfeit check, or other unauthorized debit to your account, we will not be responsible for subsequent unauthorized transactions by the same wrongdoer if we act in good faith. Without regard to care or lack of care of either you or us, if you do not discover and report an error or an unauthorized signature, alteration, forgery, counterfeit check, or other unauthorized debit to your account within 60 calendar days after the date of your statement or the date information about the item or transaction is made available to you, whichever is earlier, you are precluded from asserting the error or unauthorized transaction against us. (Note: Different notification and liability rules apply to certain electronic fund transfers. See the "Electronic Fund Transfers" section.)
If you claim a credit or refund because of an error or unauthorized transaction, you agree to provide us with a declaration containing whatever reasonable information we require regarding your account, the transaction, and the circumstances surrounding the claimed loss. We must receive your declaration within 10 calendar days of our request. If applicable, you also agree to make a report to the police and to provide us with a copy of the report, upon request. We will have a reasonable period of time to investigate the circumstances surrounding any claimed loss.
During our investigation, we will have no obligation to provisionally credit your account, unless otherwise required by law (e.g., in connection with certain consumer electronic fund transfer services).
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; and (c) by any loss recovery that you obtain from third parties (apportioned in accordance with this provision). We will not be liable for any loss that is caused in part by your negligence if we acted with ordinary care. Unless otherwise required by law, we will not be liable for incidental, special or consequential damages, including loss of profits and/or opportunity, or for attorney's fees incurred by you, even if we were aware of the possibility of such damages.
You agree to pursue all rights you may have under any insurance policy you maintain in connection with any loss associated with your account and to provide us with information regarding coverage. Our liability will be reduced, proportionately in accordance with our 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.
Note: Different notice and liability rules apply to certain electronic fund transfers. See the "Electronic Fund Transfers" section.
Waivers. We may delay enforcing our rights under this agreement without losing them. Any waiver by us shall not be deemed a waiver of other rights or of the same right at another time. You waive diligence, demand, presentment, protest and notice of every kind, except as set forth in this agreement.
11. WIRE AND OTHER FUND TRANSFERS
Payment Orders. The following provisions apply to payment orders governed by the New York Uniform Commercial Code (e.g., wire transfers, telephone transfers, RTP, and ACH transactions involving business accounts). They do not apply to the transactions described in the "Electronic Fund Transfers" section of this Agreement or to payments by check, draft or similar instrument. If you have a separate agreement with us with respect to payment orders, the terms of that agreement will supersede any conflicting terms in this Agreement.
Processing Orders. At our discretion, we may process your payment order to transfer funds to another account with us or to an account maintained with another financial institution. We reserve the right to reject any payment order without cause or prior notice, and may notify you of the rejection orally, electronically or in writing.
Cutoff Hours. Our processing hours for payment orders is currently 2 p.m. ET for electronic requests. Faxed and mailed requests must be received by noon. These cutoff times are subject to change without prior notice. Information about our processing hours is available upon request. Payment orders received after the processing cutoff hour may be processed on our next funds transfer business day.
Payment Order Accuracy. You must accurately describe the beneficiary of your payment order and the beneficiary's financial institution. If you describe any beneficiary or institution inconsistently by name and account number, we and other institutions may process the order solely on the basis of the account number, even if the order identifies a person or entity different from the named beneficiary or institution. We may also process incoming fund transfers based on the account number, rather than on any inconsistent name reflected in the payment order. 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.
Cancellation and Amendment of Payment Orders. You do not have a right to cancel or amend any payment order after we receive it. Although we may attempt to act on any amendment or cancellation request you make (e.g., if it is received in a time and manner which permits us to do so), we assume no responsibility for failing or refusing to do so, even if we could have affected the change or cancellation. You agree to indemnify, defend and hold us harmless from any loss, damage, claim, action, and liability that results, and any charges and costs we incur, in connection with any request by you to amend or cancel a payment order. Foreign transfers can be cancelled within 30 minutes of transfer request if: the request to cancel enables us to identify the sender's name and address or telephone number and the particular transfer to be cancelled and the transferred funds have not been picked up by the designated recipient or deposited into an account of the designated recipient.
Foreign Transfers (additional information). Foreign transfers may be subject to delays, charges imposed by other financial institutions, and changes in foreign currency exchange rates. Recipient may receive less due to fees charged by the recipient's bank and foreign taxes.
Unauthorized Payment Orders. We may process any payment order we believe is transmitted or authorized by you if we act in compliance with a security procedure agreed upon by you and us. Such payment orders will be deemed effective as if made by you, and you will be obligated to pay us in the amount of such orders, even though they are not transmitted or authorized by you. Unless we agree on another security procedure, you agree that we may confirm the authenticity and content of payment orders (among other ways) by placing a call to any of you. If we cannot reach you, or if the payment order is not confirmed or approved in the manner we require, we may refuse to execute the payment order.
Notice of Errors. You agree to review all statements and notices promptly to confirm the accuracy and authorization of each payment order. You will notify us immediately if there is any discrepancy between your payment order and any confirmation or statement of account, or if you discover any other problem with respect to a transfer. You must send a written notice to us of the discrepancy or other problem, including a statement of the relevant facts, within a reasonable time (not to exceed 14 days from the date you first discover the problem or receive a statement or notice reflecting the problem, whichever occurs first).
Error Resolution for Consumer Remittance Transfers.
You must contact us within 180 days of the date we promised to you that funds would be made available to the recipient.
When you do, please tell us: your name and address (or telephone number); the error or problem with the transfer, and why you believe it is an error or problem; the name of the person receiving the funds, and if you know it, his or her telephone number and address; and the dollar amount of the transfer; and the confirmation code or number of the transaction.
We will determine whether an error occurred within 90 days after you contact us and we will correct any error promptly. We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of any documents we used in our investigation.
Limitation of Liability. Our liability for any act or failure to act shall not exceed any direct resulting loss, if any, which you incur and payment of interest. Unless otherwise required by law, we will not be liable for any consequential, indirect or special damage that you incur in connection with payment orders, even if we are aware of the possibility for such damages.
12. WITHHOLDING OF INCOME TAX
Unless you are exempt under federal law, we are required to withhold a portion of your taxable interest and certain other payments (this is referred to as backup withholding) if: (1) you fail to supply us, under penalties of perjury, with your correct taxpayer identification number (TIN); (2) you fail to provide us with the required certified information; (3) the IRS instructs us to withhold; or (4) the IRS notifies you that you are subject to backup withholding. You must provide your TIN whether or not you are required to file a tax return. You also must certify that you are not subject to backup withholding. If you do not provide us with your TIN, we may assess your account with a fee.
We may report interest and other payments to you to the Internal Revenue Service (IRS), along with your TIN.
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. To avoid possible erroneous backup withholding, an exempt payee should furnish its TIN.
A non-resident 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). Non-resident aliens may be required to certify their exempt status every three years (or earlier upon request) to avoid backup withholding.
You may be subject to civil and criminal penalties if you fail to provide us with a correct TIN or falsify information with respect to withholding. For additional information on interest reporting and withholding, contact your tax advisor or the IRS.
QUESTIONS OR COMMENTS
If you have any questions or comments, you can contact us at:
Morgan Stanley Private Bank
Attn: Deposit Operations Department
P.O. Box 484, Jersey City, NJ 07303-0484
or call us at 800-387-2331