Terms and Conditions
Automated Clearing House
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THE SERVICE

These Automated Clearing House Origination Service Terms (the “ACH Service Terms”) set forth the terms under which Customer may originate Credit Entries and/or Debit Entries as an Originator through Bank by means of the Automated Clearing House Network (“ACH”) to initiate electronic fund transfers to or from an Account (the “Services”). The Services are also subject to the General Provisions of this Agreement and the Operating Rules and Guidelines (the “Rules”) of the National Automated Clearing House Association (“Nacha”), each as may be amended from time to time. Bank is willing to act as an Originating Depository Financial Institution (“ODFI”) with respect to such Entries under these ACH Service Terms. In the event of a conflict between these ACH Service Terms and other terms in this Agreement, these ACH Service Terms shall control. Unless otherwise defined herein, any capitalized terms shall have the meaning as set forth in other sections of this Agreement or the Rules, as applicable. Each Entry shall be deemed Customer's “Payment Order” as defined in Article 4A of the Uniform Commercial Code enacted by the State of New York, as amended from time to time (the “UCC”) and authorizes Bank to initiate an electronic funds transfer on Customer's behalf. Any reference to this Agreement herein shall be deemed to include the ACH Service Terms.

TRANSMISSION OF ENTRIES BY CUSTOMER

Prior to the submission of any Entries, Customer must complete the Bank's implementation procedures and criteria, including providing Bank such financial, business and operating information as Bank may reasonably request in connection with Bank's approval process. The Customer must designate its Administrator(s) in the Operational Instructions. The Customer's Administrator(s) shall establish Customer's Authorized Users (“User(s)”) who shall be authorized to initiate Entries within the parameters as designated in the applicable Operational Instructions on behalf of and selected by Customer and as otherwise restricted by Bank. Bank shall be entitled to deem any person having knowledge of any Security Procedures (defined below) assigned to Customer and required to initiate Entries under this Agreement, to be a User (including any Administrator). Customer may also allow a Third-Party Service Provider (as defined in the Rules) (a “TPSP”) to originate Entries as a User. Any TPSP will be deemed Customer's agent and vendor, and Bank shall have no liability or responsibility for monitoring Customer's TPSP.

User(s) shall transmit Entries to Bank in compliance with the formatting and other requirements set forth in the file specifications provided by Bank. Customer or Customer's TPSP may choose to initiate instructions, including Entries, via the Electronic Banking channel or File Delivery by completing the appropriate section of the applicable Operational Instructions. Customer shall comply with Bank's required Security Procedures with respect to Entries transmitted using the Services. Entries shall be transmitted to Bank no later than the time and the number of days prior to the Effective Entry Date specified in the Bank's Processing Schedule and Guidelines (as amended from time to time and which can be found on Intellix or requested through Treasury Management Customer Solutions). Entries received after the established processing deadline shall be deemed to have been received on the next Business Day. For Same Day ACH Debit origination, Customers must opt-in to the service on the Operational Instructions and such service must be accepted and implemented by Bank. The total dollar amount of Entries transmitted by Customer to Bank on any one Business Day shall not exceed the amount of collected funds in Customer’s Account as of the Effective Entry Date of the Entries. Types of Entries that Customer may originate are up to the sole discretion of Bank and effective after submission of the Operational Instructions and acceptance and implementation by Bank. Bank reserves the right to limit the types and amount of the Entries processed under the Services.

SECURITY PROCEDURES

Bank offers Security Procedures that apply to the Services and Payment Orders, and Customer's use of the Services constitutes Customer's acceptance of those Security Procedures as commercially reasonable for the type, size, frequency and volume of Customer's Payment Orders and as a means of authenticating a Payment Order communicated to Bank by or on behalf of Customer. Customer acknowledges that the Security Procedures are used to verify the authenticity of, and not to detect errors in, any Payment Order. Any Payment Order communicated by or on behalf of Customer shall be effective as the funds transfer instruction or Payment Order of Customer, and shall be enforceable against Customer, whether or not authorized and regardless of the actual identity of the sender thereof, if such Payment Order is received in accordance with the applicable Security Procedures, and if Bank accepts such Payment Order in good faith. In addition, if any Payment Order was actually communicated or authorized by Customer or Customer otherwise benefited from such Payment Order (or resulting Entry), then Customer will be obligated to pay Bank the amount of the related Entry without regard to whether Bank complied with the Security Procedures. Bank may, in its discretion, use additional procedures to verify the authenticity of any Payment Order. Customer agrees to implement any reasonable authentication or Security Procedures established by Bank. Bank retains the right, but is not obligated, to contact Customer to validate the authenticity of any ACH File or Entry received. In the event Customer uses File Delivery to originate ACH Files or Entries, Bank may require Customer to submit an informational transmittal containing file control totals (“Control Totals”) prior to submission of an ACH File or Entries. Bank may, in its sole discretion, reject and not process an ACH File or Entries unless the Control Totals match the ACH File or Entries as an additional Security Procedure. “Security Procedures” means the treasury management security procedures provided by Bank to Customer describing the procedure, access codes, passwords or other security devices required to access and use the Services securely, which may be provided in either a hard copy or electronic format, as may be amended by Bank from time to time.

If Customer chooses to communicate any Entry (including any cancellation or amendment thereof) to Bank in a manner that varies from the Security Procedures, and if Bank accepts such Entry in good faith, then Customer agrees to be bound by such Entry, whether or not authorized, and Customer will be deemed to have refused the Security Procedures that Bank offers and recommends as commercially reasonable, and Customer will be obligated to pay Bank the amount of the electronic funds transfer made based upon such Entry. However, Bank has no obligation to accept any Entry that is not communicated in compliance with the Security Procedures. Bank shall not be responsible for refusal to act upon any Entry received which does not comply with this Agreement, including where Bank’s reasonable efforts to verify the Entry in accordance with the Security Procedures have failed or where such action is delayed until verification can be obtained

AUTHORIZATION; RECORDS RETENTION

Customer shall obtain an authorization (“Authorization Agreement”) as required by the Rules from the person or entity whose account will be debited or credited as the result of an Entry originated by Customer. Customer shall retain the Authorization Agreement in original form while it is in effect and the original or a copy of each Authorization Agreement for two (2) years after termination or revocation of such Authorization Agreement or as otherwise required by the Rules. Upon request, Customer shall immediately furnish the original or a copy of the Authorization Agreement to Bank. Specific requirements for the Authorization Agreement for each SEC code are outlined in the Rules.

PROCESSING, TRANSMITTAL, AND SETTLEMENT BY BANK

Except as otherwise provided for in this Agreement, if Bank elects to accept Entries and Customer otherwise complies with the term of this Agreement, Bank shall use commercially reasonable efforts to comply with the instructions of Customer to: (i) process Entries received from Customer to conform with the file specifications set forth in the Rules, (ii) transmit such Entries as an ODFI to the ACH processor selected by Bank, (iii) settle for such Entries as provided in the Rules, and (iv) in the case of a Credit Entry received for credit to an Account with Bank (“On-Us Entry”), Bank shall credit the Receiver's account in the amount of such Credit Entry on the Effective Entry Date contained in such Credit Entry. Customer agrees that the ACH processor selected by Bank shall be considered to have been selected by and designated by Customer and shall be Customer's agent and Vendor for purposes of this Agreement.

SETTLEMENT OF CREDIT ENTRIES AND RETURNED DEBIT ENTRIES

Customer authorizes Bank to debit its Account(s) to initiate electronic funds transfers for all Credit Entries issued by Customer or otherwise made effective against Customer. Customer agrees to pay for the amount of such electronic funds transfer no later than such time on the Effective Entry Date of such Credit Entries and each On-Us Entry as Bank, in its discretion, may determine. Customer shall settle with and pay Bank for the amount of each Debit Entry returned by a Receiving Depository Bank (“RDFI”) or Debit Entry dishonored by Bank. Settlement shall be made by Customer to Bank in any manner specified by Bank. Customer hereby agrees that Bank is authorized to charge the Account(s) (“Authorized Account(s)”) designated by Customer in applicable Operational Instructions, as settlement for Credit Entries issued by Customer or returned or dishonored Debit Entries; provided, that if insufficient funds are in the Authorized Account(s), Bank may debit another Account maintained by Customer. Bank will give Customer notice of the receipt of any ACH Credit Entries and other electronic funds transfers into Customer's Account through the Account information services offered by Bank from time to time, but Customer agrees that Bank shall have no liability for any failure or delay in providing such notice. Customer agrees to be obligated and liable for any Payment Order submitted by a TPSP as if such Payment Order was submitted by Customer.

PROVISIONAL SETTLEMENT

Customer is hereby notified that payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement; and Customer acknowledges and agrees that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited, and Customer shall be considered not to have paid the Receiver the amount of the electronic funds transfer. Bank payment of any debit Entry, returned Credit Entry, or credit Reversal is provisional until Bank receives final settlement for the Entry or Reversal. If final settlement is not received, Bank is entitled to a refund and may charge Customer's Account for the amount previously credited. Bank may delay the availability of any amount credited for a debit Entry or a credit Reversal if Bank believes there may be insufficient funds in Customer's Account to cover any chargeback or return of the Entry or Reversal. Bank may require the personal guarantee of a principal or an owner of Customer.

PRE-FUNDING

Bank reserves the right to require Customer to pre-fund an Account maintained at Bank prior to the Settlement Date of an ACH Credit Entry or File or before crediting the Receiver's account in the case of an On-Us Transfer (“Prefunding”), at any time and without prior notice. Bank shall determine whether pre-funding is required based on criteria established from time to time by Bank with respect to Customer's use of the Services with Bank. When Bank requires Pre-Funding, Customer shall maintain sufficient collected funds in the Authorized Account(s) to settle for the Credit Entries at the time the Credit Entries are originated by Customer and sent to Bank, and Bank shall not be obligated to process Entries unless sufficient collected funds are in the Authorized Account.

RESERVES

From time to time, Bank shall evaluate Customer's Entry activity for the purpose of establishing averages for Entry frequency, amount, returns and adjustments. These evaluations will occur at least annually and may occur more frequently at Bank’s discretion. In connection with these evaluations, Bank reserves the right to require Customer to establish reserves with Bank calculated by Bank to cover Customer's obligations to Bank arising from use of the Services. Reserves may be expressed as a fixed dollar amount or as a “rolling reserve” calculated based on “rolling” averages determined by Bank's periodic evaluations. The amount of reserves required by Bank, if any, will be communicated directly to Customer from time to time. Customer agrees to establish reserves as required by Bank within five (5) Business Days after receipt of a communication from Bank setting forth the amount of required reserves and the basis of calculation used to determine the amount of reserves. Bank may suspend Services if Customer fails to establish the required amount of reserves following communication of the reserve requirement by Bank. Customer agrees that Bank is permitted to hold the reserve amount for a reasonable period of time following termination of the Services.

REJECTION OF ENTRIES

Customer agrees that Bank has no obligation to accept Entries and therefore Bank may reject and refuse to accept any Entry issued by Customer for any reason. Bank shall have no liability to Customer for rejection of an Entry pursuant to this Agreement. Without limiting the foregoing, Bank may, in its sole discretion, refuse to process and reject any Entries under this Service if, in Bank’s sole judgment: (i) there is reasonable cause to believe that any Entry will be returned or will not settle in the ordinary course of the Entry for any reason, (ii) to do otherwise would violate any limit set by the applicable Clearing House Association or any governmental authority or agency to control payment system risk, (iii) a Credit Entry or the return of a Debit Entry would create an overdraft of Customer's Accounts; or (iv) the Entry is not of a type established for origination by Customer. Bank will endeavor to notify Customer as promptly as practicable if Bank rejects an Entry, but in no event will Bank have any liability to Customer for a failure or delay of any such notification, and Customer acknowledges that it is Customer's responsibility to monitor the processing or rejection of its Entries. Customer may not reinitiate Entries except as prescribed by the Rules.

CANCELLATION OR AMENDMENT BY CUSTOMER

Customer shall have no right to cancel or amend any Entry after its receipt by Bank. However, Bank may, at its option, accept a cancellation or amendment by Customer. If such a request is received by Bank before the affected Entry has been transmitted to the ACH processor (or, in the case of an On-Us Entry, before the Receiver's account has been credited or debited), Bank may, at its option, use reasonable efforts to cancel or amend the Entry as requested, but Bank shall have no liability if the cancellation or amendment is not effected. If Bank accepts a cancellation or amendment of an Entry, Customer hereby agrees to indemnify and hold Bank harmless from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney's fees and expenses, incurred by Bank as the result of its acceptance of the cancellation or amendment.

REVERSALS OF ENTRIES

a)General Procedure: Upon proper and timely request by Customer, Bank will use reasonable efforts to effect a reversal of an Entry or File. To be “proper and timely,” the request must (i) be made within five (5) Business Days of the Effective Entry Date for the Entry or File to be reversed; (ii) be made immediately, not to exceed ten (10) hours, upon discovery of the error; and (iii) be accompanied by an ACH Adjustment Request Form and comply with all of the Rules. In addition, if Customer requests reversal of a Debit Entry or Debit File, Customer shall concurrently deposit into Customer's Account an amount equal to that Entry or File. Customer shall notify the Receiver of any reversing Entry initiated to correct any Entry it has initiated in error. The notification to the Receiver must include the reason for the reversal and be made no later than the Settlement Date of the reversing Entry. b)No Liability: Reimbursement to Bank. Under no circumstances shall Bank be liable to Customer for interest or related losses if the requested reversal of an Entry is not effected. Customer shall reimburse Bank for any expenses, losses, costs, liabilities or damages Bank incurs in effecting or attempting to effect Customer's request for reversal of an Entry.

ERROR DETECTION

Bank has no obligation to discover and shall not be liable to Customer for errors made in any Entry submitted by or on behalf of Customer, including but not limited to errors made in identifying the Receiver, or an Intermediary or RDFI or for errors in the amount of an Entry or for errors in Settlement Dates. Bank shall likewise have no duty to discover and shall not be liable for duplicate Entries issued by Customer. Bank and any receiving bank (including any beneficiary's bank and any intermediary bank) may rely on the account number or other identifying number of any bank, person, or bank account specified in the Entry, even if such numbers identify a bank, person or bank account different from the bank, person or bank account designated by name, and the Customer's obligation to pay the amount of the Payment Order to the Bank is not excused in those circumstances. In the event that Customer makes an error or issues a duplicate Entry, Customer shall indemnify and hold Bank harmless from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney's fees and expenses, incurred by Bank as result of the error or issuance of duplicate Entries.

COMPLIANCE WITH RULES and LAWS

Customer acknowledges it has a copy or has access to a copy of the Rules. Customer agrees, represents and warrants to Bank that all actions by Customer contemplated by this Agreement, including the preparation, transmittal, and settlement of Entries and Payment Orders, shall comply with Applicable Laws (defined below) and the Rules, as each may be amended from time to time and as in effect whenever Customer uses the Services. “Applicable Laws” means all applicable federal laws of the United States, state laws, rules and regulations as in effect from time to time governing or relating to this Agreement or the Services, including, but not limited to, the Rules and the rules of any other funds transfer system and the regulations, guidelines, and commentaries issued by the Board of Governors of the Federal Reserve and the Federal Financial Institution Examination Council (“FFIEC”), and those regulations and sanctions enforced by the Office of Foreign Assets Control (“OFAC”) and the United States Department of the Treasury's Financial Crimes Enforcement Network (“FinCEN”). Customer agrees that the Bank shall be excused and not be required to perform the Services to the extent that the action is inconsistent with Applicable Laws. Bank will charge Customer with any fines or penalties imposed by any regulatory agency, OFAC, Nacha or any other regulatory or rule-making organizations which are incurred as a result of Customer's use of the Services and Customer agrees to fully reimburse and/or indemnify Bank for such charges or fines.

PROHIBITED ENTRIES

Customer agrees not to use or attempt to use the Services (i) to engage in any illegal purpose or activity or to violate any Applicable Laws, (ii) to breach any contract or agreement by which Customer is bound, (iii) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (iv) to engage in any activity or submit any type of Entry that is restricted or not specifically authorized and permitted by this Agreement, including, but not limited to, International ACH Entries (IATs) or Entries that are restricted by type of Receiver. Customer acknowledges and agrees that Bank has no obligation to monitor Customer's use of the Services for Entries and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any Entry or activity that Bank believes violates the terms of this Agreement.

PRE-NOTIFICATION

Customer, at Customer's option, may send pre-notification that Customer intends to initiate an Entry or Entries to a particular Account within the time limits prescribed for such notice in the Rules. Such notice shall be provided to Bank in the format and on the medium provided in the Rules. If Customer receives notice that such pre-notification has been rejected by an RDFI within the prescribed period, or that an RDFI will not receive Entries without having first received a copy of the Authorization signed by Customer's client, Customer will not initiate any corresponding Entries to such Accounts until the cause for rejection has been corrected or until Customer has provided the RDFI with such authorization within the time limits provided by the Rules.

RETURNED ENTRIES

Bank shall notify Customer of the receipt of a returned Entry within the reporting timelines indicated in the Operational Instructions, which may include notice by posting or transmission to any of the Channels used with the Services; provided, that Bank shall have no liability for any delay in providing such notice or for any allegation from Customer that such notice should have been provided at an earlier time. Provided that Bank has complied with the terms of this Agreement, in connection with a returned Entry or electronic funds transfer, Bank will have no liability to Customer based on the return thereof. Except for an Entry retransmitted by Customer in accordance with the requirements provided herein, Bank shall have no obligation to retransmit a returned Entry if Bank complied with the terms of this Agreement with respect to the original Entry. Bank shall monitor Customer return activity and may request proof of Authorization Agreement for any Entry. If Bank deems that Customer has excessive returns, Bank may terminate Customer's ability to submit Debit Entries immediately.

NOTIFICATION OF CHANGE

Bank shall provide Customer all information, as required by the Rules, with respect to each Notification of Change (“NOC”) Entry or Corrected Notification of Change (“Corrected NOC”) Entry received by Bank relating to Entries transmitted by Customer. Customer shall ensure that changes requested by the NOC or Corrected NOC are made as required by the Rules following Customer's receipt of the NOC information from Bank or prior to initiating another Entry to the Receiver's account, whichever is later. If the Notification of Change is incorrect, Customer will generate a refused Notification of Change and deliver it to Bank.

CUSTOMER REPRESENTATIONS AND WARRANTIES

With respect to each and every Entry transmitted by Customer, Customer represents and warrants to Bank and agrees that (i) each person or entity shown as the Receiver on an Entry received by Bank from Customer has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Entry Date shown on such Entry, (ii) such authorization is operative at the time of transmittal or crediting or debiting by Bank as provided herein, (iii) Entries transmitted to Bank by Customer (including any User or TPSP) are limited to those types of Entries permitted by Bank, are accurate and complete, (iv) Customer shall perform its obligations under this Agreement in accordance with all Applicable Laws, including, without limitation, maintenance of records required by Applicable Laws, (v) Customer shall originate Payment Orders only for Customer's Accounts and not as agent or on behalf of any other third party, and Customer will notify Bank of Customer's use of any TPSP or any other Vendor for the Services, and Customer shall be responsible for the acts of such TPSP or vendor as the actions or omissions of Customer as set forth in this Agreement, and (vi) any Entry or Payment Order submitted to Bank by Customer or on behalf of Customer by a TPSP in accordance with the terms of the Services authorizes Bank to initiate an electronic funds transfer in accordance with the terms thereof.

RIGHTS OF BANK TO SUSPEND OR TERMINATE SERVICES

In addition to its rights to terminate or suspend Services under the terms of the General Provisions or otherwise set forth herein, Bank may immediately suspend or terminate the Services in the event that: (i) Customer fails to comply with Applicable Laws or the terms of this Agreement, (ii) in Bank’s good faith opinion the risk of providing the Service to Customer is unacceptable, or (iii) actions taken or instructions submitted by Customer that would result in Bank's violation or non-compliance with any Applicable Laws.

LIMITATION OF LIABILITY AND INDEMNITY

In addition to any limits on Bank's liability in the General Provisions, Bank's liability to Customer for failure to exercise ordinary care resulting in a delay in executing, improper execution of, or failure to execute an Entry constituting a Payment Order, shall be limited to an amount equal to interest losses attributable thereto. In addition to Customer's indemnification obligations in the General Provisions, Customer shall indemnify and hold harmless Bank, and its officers, directors, agents, and employees, from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney's fees and expenses, resulting from or arising out of (i) any breach of any of the agreements, representations or warranties of Customer contained in this Agreement; or (ii) any act or omission of Customer (including its TPSP) or any other person acting on Customer’s behalf with respect to the use of the Services. If Bank is obligated to pay interest compensation, Bank's liability for loss of interest resulting from Bank's error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of New York for the period involved. At Bank's option, payment of such interest may be made by crediting the Account. This Section shall survive termination of the Services and this Agreement.

FINANCIAL INFORMATION AND AUDIT

Bank may from time to time request information from Customer in order to evaluate a continuation of the Services provided by Bank hereunder and/or adjustment of any limits set by this Agreement. Customer agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank. Customer authorizes Bank to investigate or reinvestigate, at any time, any information provided by Customer in connection with this Agreement or the Service. Upon request by Bank, and subject to Customer's physical and logical security procedures, Customer hereby authorizes Bank, and those government agencies that regulate Bank, to enter Customer's business premises for the purpose of verifying that Customer is in compliance with this Agreement and Customer specifically authorizes Bank to perform an audit of Customer's operational controls, information security controls to maintain the confidentiality of Protected Information, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure. Customer hereby acknowledges and agrees that Bank shall have the right to mandate specific internal controls at Customer's location(s) and Customer shall comply with any such mandate. In addition, Customer hereby agrees to allow Bank to review available reports of independent audits performed at Customer's location related to information technology, the Service and any associated operational processes. Customer agrees that if requested by Bank, Customer will complete a self-assessment of Customer's operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by Bank in an audit of Customer.