RIVER CITIES BANK THIRD-PARTY SENDER AGREEMENT

Transcription

1 RIVER CITIES BANK THIRD-PARTY SENDER AGREEMENT RECITALS This Agreement, dated as of, is between River Cities Bank and ( Third-Party Sender ). A. Third-Party Sender wishes to initiate credit and debit Entries by means of the Automated Clearing House Network pursuant to the terms of this Agreement and the rules of the National Automated Clearing House Association ( the Rules ), and River Cities Bank is willing to act as an Originating Depository Financial Institution with respect to such Entries. B. Unless otherwise defined herein, capitalized terms shall have the meanings provided in the Rules. The term Entry shall have the meaning provided in the Rules and shall also mean the data received from Third-Party Sender hereunder from which River Cities Bank initiates each Entry. AGREEMENT 1. Prerequisites. Third-Party Sender agrees to be bound by the Rules and that Entries for which Third-Party Sender is or is not the Originator, Third-Party Sender will not initiate such Entries in violation of the laws of the United States and represents and warrants that the Originator of the Entry has agreed to assume the responsibilities of an Originator. Third Party Sender acknowledges receipt of a copy of the Rules. Third Party Sender can keep abreast of any rule changes by purchasing an updated rulebook, which is provided annually through River Cities Bank. 2. Transmittal of Entries by Third-Party Sender. Third-Party Sender shall transmit credit and debit Entries to River Cities Bank through the ecorp program. Third-Party Sender agrees that its ability to originate Entries under this agreement is subject to exposure limits in accordance with the Rules. Exposure Limits: The total dollar amount of Entries transmitted by Third Party Sender to River Cities Bank on any single day shall not exceed $. The total dollar amount in a single file transmitted by Third Party Sender to River Cities Bank will not exceed $. River Cities Bank may review the limits set forth in the preceding sentence and change those limits by sending written notice of the change. Third Party Sender agrees to provide River Cities Bank with financial statements initially & annually, as requested by River Cities Bank.

2 3. Security Procedures. (a) Third-Party Sender and River Cities Bank shall comply with the security procedure requirements described below with respect to each Entry transmitted. Third-Party Sender acknowledges that the purpose of such security procedures is for verification of authenticity and not to detect an error in the transmission or content of an Entry. (b) Third-Party Sender is strictly responsible to establish and maintain procedures to safeguard against unauthorized transmissions. Third-Party Sender warrants that no individual will be allowed to initiate transfers in the absence of proper supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the security procedures and any passwords, codes, security devices and related instructions provided by River Cities Bank. If Third-Party Sender believes or suspects that any such information or instructions have been known or accessed by unauthorized persons, Third-Party Sender agrees to notify River Cities Bank immediately, followed by written confirmation. The occurrence of unauthorized access will not affect any transfers made in good faith by River Cities Bank prior to receipt of such notification and within a reasonable time period to prevent unauthorized transfers. Security Procedures: The Uniform Commercial Code, Article 4A (UCC4A) demands that for corporate credits there be a commercially reasonable security procedure in place to guard against loss. River Cities Bank requires this procedure be used for all types of originated transactions. The following suggestions should be used to ensure your procedures are commercially reasonable. Encryption of information when data is transmitted. Multiple passwords and call back procedures for files sent via data transmission or the web. Third Party Sender input schedule so that River Cities Bank knows when to expect a file. 4. Compliance with Security Procedures. (a) If an Entry (or request for cancellation or amendment) received by River Cities Bank purports to have been transmitted or authorized by Third-Party Sender, it will be deemed effective as Third-Party Sender s Entry (or request) and Third-Party Sender shall be obligated to pay River Cities Bank the amount of such Entry even if the Entry (or request) was not authorized by Third-Party Sender, provided River Cities Bank accepted the Entry in good faith and acted in compliance with the security procedures referred to above with respect to such entry. (b) If an Entry (or request for cancellation or amendment) received by River Cities Bank was transmitted or authorized by Third-Party Sender, Third-Party Sender shall pay River Cities Bank the amount of the Entry, whether or not River Cities Bank complied with the security procedures referred to above with respect to that Entry and whether or not that Entry was erroneous in any respect or that error would have been detected if River Cities Bank had complied with such procedures.

3 (c) River Cities Bank will have no liability if there is a delivery issue with the file. All liability sits with the Third Party Sender unless the Third Party Sender can prove that it was River Cities Bank or the ACH Processor that caused the loss. 5. Recording and Use of Communications. Third-Party Sender and River Cities Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement may be electronically recorded and retained by either party by use of any reasonable means. 6. Processing, Transmittal and Settlement by River Cities Bank. Except as provided in Section 7, On-Us Entries, and Section 8, Rejection of Entries, River Cities Bank shall (i) process Entries received from Third-Party Sender to conform with the file specifications set forth in the Rules, (ii) transmit such Entries as an Originating Depository Financial Institution to the ACH Operator, and (iii) settle for such Entries as provided in the Rules. Timing Of Processing: If Third Party Sender is generating consumer credit batches, these must be delivered through River Cities Bank by 2:00 p.m. two (2) business days before the requested settlement date to ensure funds availability at the opening of business on settlement day. For all debit batches, the final delivery deadline is 2:00 p.m. the business day prior to settlement date. Third Party Sender may deliver files before the requested settlement date and those files will be held and processed to settle on the Effective Entry Date listed by Third Party Sender. If any of the requirements in Section 6 are not met, River Cities Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next deposit deadline of the ACH Operator. 7. On-Us Entries. Except as provided in Section 8, Rejection of Entries, in the case of an Entry received for credit or debit to an account maintained with River Cities Bank ( On-Us Entry ), River Cities Bank shall credit or debit the Receiver s account in the amount of such Entry on the Effective Entry Date contained in such Entry, provided the requirements set forth in Section 6 are met. If any of those requirements are not met, River Cities Bank shall use reasonable efforts to credit or debit the Receiver s account in the amount of such Entry no later than the next Business Day following such Effective Entry Date. 8. Rejection of Entries. River Cities Bank may reject any Entry which does not comply with the requirements stated in the Sections above. River Cities Bank may reject an On-Us Entry for any reason for which an Entry may be returned under the Rules. River Cities Bank may reject any Entry if Third-Party Sender has failed to comply with its account balance obligations (see Section 11 below). River Cities Bank may reject any Entry if Third-Party Sender does not adhere to security procedures as described in Section 3 (above). River Cities Bank shall notify Third-Party Sender, by phone, of such rejection no later than the business day such Entry would otherwise have been transmitted by River Cities Bank to the ACH Operator or, in the case of an On-Us Entry, the day before its Effective Entry Date. Notices of rejection shall

4 be effective when given. 9. Cancellation or Amendment by Third-Party Sender. Third-Party Sender shall have no right to cancel or amend any Entry after its receipt by River Cities Bank. If such request complies with the security procedures described in Section 3 (above) for the cancellation of data, River Cities Bank shall use reasonable efforts to act on a request by Third-Party Sender for cancellation of an Entry prior to transmitting it to the ACH Operator or, in the case of an On-Us Entry, prior to crediting or debiting a Receiver s account, but shall have no liability if such cancellation is not effected. Third-Party Sender shall reimburse River Cities Bank for any expenses, losses, or damages River Cities Bank may incur in effecting or attempting to effect the cancellation or amendment of an Entry. 10. Notice of Returned Entries and Notifications of Change. River Cities Bank shall notify Third-Party Sender by an initial phone call, followed by a fax transmittal (containing all required information) of the receipt of a returned entry from the ACH Operator no later than one business day after the business day of such receipt. Except for an Entry retransmitted by Third-Party Sender in accordance with the requirements of Section 2, Transmittal of Entries By Third-Party Sender, River Cities Bank shall have no obligation to retransmit a returned Entry to the ACH Operator if River Cities Bank complied with the terms of this Agreement with respect to the original Entry. Third-Party Sender shall notify the Originator of receipt of each return entry no later than one business day after the business day of receiving such notification from the ODFI. River Cities Bank shall provide Third-Party Sender all information, as required by the NACHA Operating Rules, with respect to each Notification of Change (NOC) Entry or Corrected Notification of Change (Corrected NOC) Entry received by River Cities Bank relating to Entries transmitted by Third-Party Sender. River Cities Bank must provide such information to Third-Party Sender within two banking days of the Settlement Date of each NOC or Corrected NOC Entry. Third-Party Sender shall ensure that changes requested by the NOC or Corrected NOC are made by, or on behalf of, the Originator within six (6) banking days of Third-Party Sender s receipt of the NOC information from River Cities Bank or prior to initiating another entry to the Receiver s account, whichever is later. 11. The Account. River Cities Bank may, without prior notice or demand, obtain payment of any amount due and payable to it under this Agreement by debiting the account(s) of Third-Party Sender identified below. Third-Party Sender shall at all times maintain a balance of available funds in the Account sufficient to cover its payment obligations under this Agreement. In the event there are not sufficient funds in the Account to cover Third-Party Sender s obligations, Third-Party Sender agrees that River Cities Bank may debit any account maintained by Third-Party Sender with River Cities Bank or that River Cities Bank may set off against any amount it owes to Third-Party Sender, in order to obtain payment of Third-Party Sender s obligations under this Agreement. Upon request of River Cities Bank, Third-Party Sender agrees to promptly provide information pertaining to Third-Party Sender s financial condition, as

5 River Cities Bank may reasonably request. Checking Account #: Savings Account #: 12. Obligations of Third-Party Sender as a Third-Party Sender under the Rules. Third-Party Sender represents and warrants to River Cities Bank and agrees that they shall: (i) perform all of the duties to identify Originators; (ii) assume all of the responsibilities, including, but not limited to, the responsibilities of ODFIs and Originators; (iii) make all of the warranties of ODFIs and the warranty that Originators have agreed to assume the responsibilities of Originators under the Rules; (iv) make all of the representations; and (v) assume all of the liabilities, including, but not limited to, liability for indemnification for failure of an Originator to perform its obligations as an Originator; of a Third-Party Sender in accordance with the Rules. 13. Account Reconciliation. Entries transmitted by River Cities Bank or credited to a Receiver s account maintained with River Cities Bank will be reflected on Third-Party Sender s periodic statement issued by River Cities Bank. Third-Party Sender agrees to notify River Cities Bank promptly of any discrepancy between their records and the information shown on any periodic statement. If Third-Party Sender fails to notify River Cities Bank of any discrepancy within thirty (30) days of receipt of a periodic statement containing such information, Third-Party Sender agrees that River Cities Bank shall not be liable for any other losses resulting from Third-Party Sender s failure to give such notice or any loss of interest or any interest equivalent with respect to an Entry shown on such periodic statement. If Third-Party Sender fails to notify River Cities Bank of any such discrepancy within thirty (30) days of receipt of such periodic statement, Third-Party Sender shall be precluded from asserting such discrepancy against River Cities Bank. 14. Third-Party Sender Representations and Agreements; Indemnity. With respect to each and every Entry transmitted by Third-Party Sender, Third-Party Sender represents and warrants to River Cities Bank and agrees that (a) each person shown as the Receiver on an Entry 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, (b) such authorization is operative at the time of transmittal or crediting or debiting by River Cities Bank as provided herein, (c) Entries transmitted to River Cities Bank by Third-Party Sender are limited to those types of credit and debit Entries set forth in Section 2, Transmittal of Entries By Third-Party Sender, (d) Third-Party Sender agrees to comply with applicable state and federal law or regulation and Third Party Sender warrants that it will not transmit any Entry that violates the laws of the United States, including, without limitation, regulations of the Office of Foreign Asset Control (OFAC). OFAC, in its attempt to identify drug trafficking, terrorism, or other illegal activities, has established a list of Specially Designated Nationals (SDN individuals or companies which have been named as targets of sanctions). Third Party Sender is responsible for reviewing the SDN list for each entry that it initiates to ensure that they are not transacting with anyone who appears on the OFAC list. The SDN list can be accessed online at:

6 Third Party Sender shall perform its obligations under this Agreement in accordance with all applicable laws, regulations and orders, including but not limited to regulations and orders administered by FinCEN, and any state laws, regulation or orders applicable to the providers of ACH payment services, and (e) Third-Party Sender shall be bound by and comply with the provision of the Rules making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry. Third-Party Sender specifically acknowledges that it has received notice of the Rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Third-Party Sender shall not be deemed to have paid the Receiver the amount of the Entry. Third-Party Sender agrees to provide notice of this Rule to the Originator. Third-Party Sender shall indemnify River Cities Bank against any loss, liability or expense (including attorneys fees and costs) resulting from or arising out of any breach of any of the foregoing warranties, representations, or agreements. 15. River Cities Bank Responsibilities; Liability; Limitations on Liability; Indemnity. (a) In the performance of the services required by this Agreement, River Cities Bank shall be entitled to rely solely on the information, representations, and warranties provided by Third-Party Sender pursuant to this Agreement, and shall not be responsible for the accuracy or completeness thereof. River Cities Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its negligence or willful misconduct in performing those services. River Cities Bank shall not be responsible for Third-Party Sender s acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal, or authorization of any Entry received from Third-Party Sender) or those of any other person, including, without limitation, any Federal Reserve Bank, ACH Operator or transmission or communications facility, any Receiver or RDFI (including, without limitation, the return of an Entry by such Receiver or RDFI), and no such person shall be deemed River Cities Bank s agent. Third-Party Sender agrees to indemnify River Cities Bank against any loss, liability, or expense (including attorneys fees and costs) resulting from or arising out of any claim or any person that the River Cities Bank is responsible for any act or omission of Third-Party Sender or any other person as described above. (b) River Cities Bank shall be liable only for Third-Party Sender s actual damages due to claims arising solely from River Cities Bank s obligations to Third-Party Sender with respect to Entries transmitted pursuant to this Agreement; River Cities Bank shall not be liable for any damages or other losses to Third-Party Sender due to claims made by any Originator in connection with any arrangement or agreement under which Third-Party Sender transmits Entries pursuant to this Agreement. In no event shall River Cities Bank be liable for any consequential, special, incidental, punitive, or indirect loss or damage which Third-Party Sender may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by the River Cities Bank and regardless of the legal or equitable theory of liability which Third-Party Sender may assert, including without limitation loss or damage from subsequent wrongful dishonor resulting from River Cities Bank s acts or omissions pursuant to this Agreement.

7 (c) Without limiting the generality of the foregoing provisions, River Cities Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond River Cities Bank s control. In addition, River Cities Bank shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in River Cities Bank having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in River Cities Bank s reasonable judgment otherwise would violate any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. (d) Subject to the foregoing limitations, River Cities Bank s liability for loss of interest resulting from its 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. Payment of such interest may be made by crediting the Account (Section 11). 16. Inconsistency of Name and Account Number. Third-Party Sender acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted by River Cities Bank to the RDFI may be made by the RDFI on the basis of the account number supplied by the Third-Party Sender, even if it identifies a person different from the named Receiver, and that Third-Party Sender s obligation to pay the amount of the Entry to River Cities Bank is not excused in such circumstances. 17. Payment for Services. Third-Party Sender shall pay River Cities Bank the charges for the services provided in connection with this Agreement, as set forth below. River Cities Bank may change its fees from time to time upon notice to the Third Party Sender. Such charges do not include, and Third-Party Sender shall be responsible for payment of, any sales, use, excise, value added, utility or other similar taxes relating to such services, and any fees or charges provided for in the agreement between River Cities Bank and Third-Party Sender with respect to the account agreement. Fees: Set-up fee (one time only) $ Monthly Base Fee (monthly fee includes data retention, files fees, Software Licensing fees, Operations Personnel support, IT Service/Support) 1 0 to 500 Transactions On Account Per Month $ to 1000 Transactions On Account Per Month $ and up Transactions On Account Per Month $75.00 Per Transaction Debit Credit No Charge No Charge

8 Prenotification Addenda Record (per record) Returns and Notifications of Change No Charge No Charge $2.50 (each) Reversals File Reversals $25.00 Single Entry Reversals $2.50 Investigations Within 3 months of settlement date More than 3 months after settlement date $5.00 plus $10.00 per hour $10.00 plus $10.00 per hour 18. Amendments. From time to time, River Cities Bank may amend any of the terms and conditions contained in this Agreement, including without limitation, any cut-off time and any business day. Such amendments shall become effective upon receipt of notice by Third-Party Sender or such later date as may be stated in River Cities Bank s notice to Third-Party Sender. 19. Notices, Instructions, etc. (a) River Cities Bank shall be entitled to rely on any written notice or other written communication believed in good faith to be genuine and to have been signed by an Authorized Representative, and any such communication shall be deemed to have been signed by such person. The names and signatures of Authorized Representatives are set forth in the Employee Authorization Forms. Third-Party Sender may add or delete any Authorized Representative by written notice to River Cities Bank signed by at least two Authorized Representatives other than that being added or deleted. Such notice shall be effective on the second (2) business day following the day of River Cities Bank s receipt thereof. (b) Except as otherwise expressly provided herein, any written notice or other written communication required or permitted to be given under this Agreement shall be delivered, or sent by United States registered or certified mail, postage prepaid, or by express carrier, and, if to River Cities Bank, addressed to: P.O. Box 907 Wisconsin Rapids, WI Attn: Jeanne Krans If to Third-Party Sender, addressed to (unless another address is substituted by notice delivered or sent as provided herein):

9 Attn 20. Data Retention. Third-Party Sender shall retain data on file adequate to permit remaking of Entries for 30 days following the date of their transmittal by River Cities Bank as provided herein, and shall provide such data to River Cities Bank upon its request. Without limiting the generality of the foregoing provision, Third-Party Sender specifically agrees to be bound by and comply with all applicable provisions of the Rules regarding the retention of documents or any record, including, without limitation, Third-Party Sender s responsibilities to retain all items, source documents, and records of authorization, in accordance with the Rules. Third Party Sender shall obtain all consents and authorizations required under the Rules and shall retain such consents and authorizations for 2 years after they expire. 21. Tapes and Records. All magnetic tapes, Entries, security procedures, and related records used by River Cities Bank for transactions contemplated by this Agreement shall be and remain River Cities Bank property. River Cities Bank may, at its sole discretion, make available such information upon Third-Party Sender s request. Any expenses incurred by River Cities Bank in making such information available to Third-Party Sender shall be paid by Third-Party Sender. 22. Cooperation in Loss Recovery Efforts. In the event of any damages for which River Cities Bank or Third-Party Sender may be liable to each other or to a third party pursuant to the services provided under this Agreement, River Cities Bank and Third-Party Sender will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party. Third-Party Sender represents and warrants that the Originator has agreed to undertake reasonable efforts to cooperate, as permitted by applicable law, in performing loss recovery efforts in connection with any actions that River Cities Bank may be obligated to defend or elects to pursue against a third party. 23. Termination. Third-Party Sender may terminate this Agreement at any time. Such termination shall be effective on the second (2) business day following the day of River Cities Bank s receipt of written notice of such termination or such later date as is specified in that notice. River Cities Bank reserves the right to terminate this Agreement immediately upon providing written notice of such termination to Third-Party Sender. Any termination of this Agreement shall not affect any of River Cities Bank s rights and Third-Party Sender s obligations with respect to Entries initiated by Third-Party Sender prior to such termination, or the payment obligations of Third-Party Sender with respect to services performed by River Cities Bank prior to termination, or any other obligations that survive termination of this Agreement. 24. Non-Assignment. Third-Party Sender may not assign this Agreement or any of the rights or duties hereunder to any person without River Cities Bank s prior written consent.

10 25. Waiver. River Cities Bank may waive enforcement of any provision of this Agreement. Any such waiver shall not affect River Cities Bank s rights with respect to any other transaction or modify the terms of this Agreement. In the event that any provision of this Agreement shall be determined to be invalid, illegal or unenforceable to any extent, the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. 26. Binding Agreement; Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns. This Agreement is not for the benefit of any other person, and no other person shall have any right against River Cities Bank or Third-Party Sender hereunder. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their duly authorized officers. River Cities Bank Third-Party Sender By Name Title By Name Title