Contact & User Roles
1. Notices
-
Authorizations must be kept on file for no less than two years.
-
Existing relationship between Merchant and Customer is required to process
ACH
initiated by phone
authorization or Bill Pay.
-
A relationship exists if the Customer has purchased goods/services from the
Merchant within the past two
(2) years OR there is a written agreement in place between the Merchant and the Customer for the
provision
of goods or services. EXAMPLE: The Customer has an insurance policy with the Merchant.
-
Service does not include verification if submitting transactions via File
Transmission.
-
Some banks will not honor an ACH Transaction from a "corporate account."
Provided that the Processor continues to receive transactions from the Merchant, funds will be released
in
5-7 business days for ACH
Debit, 5 business days for TEL, 3 business days for WEB, and 7 business days for eCommerce.
The signature page herein on the following page also serves as the signature
page
for the Personal Guarantee and
Company Authorization of the undersigned. By signing, the undersigned represents that he or she is
authorized
to
sign and submit this ACH Services Merchant Agreement together with the Terms and Conditions thereto, the
Personal Guarantee, and the Company Authorization on behalf of undersigned and the Company, which agrees to
be
bound thereby.
2. Personal Guarantee
For and in consideration of the acceptance of the ACH Services Merchant
Agreement
by
eProdigy ACH, LLC, ("EPA")
the undersigned (herein referred to as "Guarantor" unconditionally, personally, individually, jointly and
severally guarantees performance of the Merchant's obligations under this Agreement and payment of all sums
due
thereunder and hereby continues to personally indemnify EPA for any and all funds due from the Merchant's
under
the terms of this agreement. ACH Debit/ Credit Authorization: Merchant hereby authorizes EPA in accordance
with
this ACH Services Merchant Agreement to initiate debit/ credit entries to Merchant's checking account, as
indicated per the attached copy of a voided check from same. The authority is to remain in full force and
effect
until (a) One hundred and twenty (120) days after EPA has received written notification from Merchant of its
termination in such a manner as to afford EPA responsible opportunity to act on it, and (b) all obligation
of
Merchant to Bank and EPA that have arisen under this agreement have been paid in full.
3. Company Authorization
As a duly authorized representative for the Company, the undersigned certifies
the
accuracy of all of the
foregoing information and authorizes EPA or other investigative entities employed by EPA, or its agents, to
investigate the references and information given to EPA. The undersigned further agrees to notify EPA or its
processor(s) of any and all changes that may occur from time-to-time in the information and statements
contained
herein above. The undersigned agrees that EPA will debit the account, specified by attached voided check
copy
or
bank letter, for all setup fees, including the ACH License fee, as an ACH item, upon receipt of the
completed
application, and all subsequent related monthly service and transaction fees, via an ACH transaction.
** CORPORATE RESOLUTION VERIFYING SIGNATURE AUTHORITY MUST BE INCLUDED IF SIGNED BY SOMEONE OTHER THAN THE
PRESIDENT OR CEO **
No license or right to use, reproduce, translate, rearrange, modify, enhance,
display, sell, lease, sub license
or otherwise distribute, transfer or dispose of any of EPA Proprietary Property, as defined in Section 4
below,
in whole or in part, is granted except as expressly provided by this Agreement. Neither Company nor any of
its
affiliates shall reverse, engineer, decompile or disassemble the Proprietary Property. Additionally, nothing
in
this Agreement shall be construed to provide Company with a license of any third-party proprietary
information
or property.
4. Ownership
All computer programs, trademarks, service marks, patents, copyrights, trade
secrets, know-how, and other
proprietary rights in or related to EPA's products and services (the "Proprietary Property"), are and will
remain the sole and exclusive property of EPA, whether or not specifically recognized or perfected under
applicable law.
5. Security Procedures
Company and EPA shall comply with the security procedures requirements described
in
the ACH Rules with respect
to entries transmitted by Company to EPA. Company 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. No
security procedures for the detection of any such error have been agreed upon between EPA and the Company.
Company is strictly responsible for establishing and maintaining procedures to
safeguard against unauthorized
transmissions. Company 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 EPA in
connection with the security procedures described in the ACH Rules. If Company believes or suspects that any
such information or instructions have been known or accessed by unauthorized persons, Company agrees to
notify
EPA, followed by written confirmation.The occurrence of unauthorized access will not affect any transfers
made
in good faith by EPA prior to receipt of such notification and within a reason EPA's time period to prevent
unauthorized transfers.
6. Compliance With Security Procedures
If an Entry (or request for cancellation or amendment of Entry) received by EPA
purports to have been
transmitted or authorized by Company, it will be deemed effective as Company's Entry (or request) and
Company
shall be obligated to pay EPA the amount of such Entry even though the Entry (or request) was not authorized
by
the Company, provided EPA accepted the Entry in good faith and acted in compliance with the security
procedures
referred to in ACH Rules with respect to such Entry.
If an Entry (or request for cancellation or amendment of an Entry) received by
EPA
was transmitted or authorized
by Company, Company shall pay EPA the amount of the Entry, whether or not EPA complied with the security
procedures referred to in the ACH Rules with respect to that Entry or whether or not that entry was
erroneous
in
any respect or that error would have been detected if EPA had complied with such procedures.
7. ACH Processing and Transmittal Services
Company and EPA agree that all entries transmitted to EPA for processing shall
comply with the formatting and
other requirements set forth in the ACH Rules in regards to the following Standard Entry Class Codes ("SEC
Codes"):
PPD - Prearranged Payment and Deposit
CCD - Cash Concentration and Disbursement
EPA shall (i) process Entries from Company 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.
EPA shall transmit such Entries to the ACH Operator by the deadline of the ACH
Operator One Banking Day prior to
the Effective Entry Date shown in such Entries, provided (i) such Entries are received by 7:30 pm EST
("Company
Cut-Off Time") on a Banking day, (ii) the Effective Entry Date is at least one (1) day after such banking
day,
and (iii) the ACH Operator is open for business on such banking day. For purpose of this Agreement, Entries
sent
via electronic transmission shall be deemed received by EPA when the transmission which is in compliance
with
any related security procedures provided for herein is completed and confirmation of transmission has been
received by Company.
If any of the requirements of clause (i), (ii), or (iii) of Section 7(b) is not
met,
EPA shall use reasonable
efforts to transmit such Entries to the ACH Operator by the next deposit deadline of the ACH Operator.
8. Rejection of Entries
EPA may reject any Entry that does not comply with the requirements of Section
5,
Security Procedures or Section
7, ACH Processing and Transmittal Services, or that contains an Effective Entry Date more than twenty-one
(21)
calendar days after the banking day such Entry is received by EPA. EPA may reject any Entry if Company has
failed to comply with its account balance obligations under Section 14, The Settlement Account. EPA shall
notify
Company by phone, electronic transmission, or in writing of such rejection no later than the banking day
such
Entry would otherwise have been transmitted by EPA to the ACH Operator. Notices of rejection shall be
effective
when given. EPA shall have no liability to Company by reason of rejection of any such entry or the fact that
such notice is not given at an earlier time than that provided for herein.
9. Cancellation of Amendment by Third-Party Sender
Company shall have no right to cancel or amend any Entry after its receipt by
EPA.
However, if such request
complies with the security procedures described in the ACH Rules for the cancellation of data, EPA shall use
reasonable efforts to act on a request by Company for cancellation of an Entry prior to transmitting it to
the
ACH Operator, but shall have no liability if such cancellation is not effected. Company shall reimburse EPA
for
any expenses, losses, or damages EPA may incur in effecting or attempting to effect the cancellation or
amendment of an entry
10. Notice of Returned Entries and Notifications of Change
EPA shall notify Company by electronic transmission of the receipt of a returned
entry from the ACH Operator no
later than one business day after the business day of such receipt. EPA shall have no obligation to
retransmit
a
returned Entry to the ACH Operator if EPA complied with the terms of this Agreement with respect to the
original
Entry. EPA shall provide Company 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 EPA
relating to Entries transmitted by Company. EPA must provide such information to Company within one banking
day
of the Settlement Date of each NOC or Corrected NOC Entry. Company shall ensure that changes requested by
the
NOC or Corrected NOC are made within six (6) banking days of Company's receipt of the NOC information from
EPA
or prior to initiating another entry to the Receiver's account, whichever is later.
11. Processing Limits
EPA will apply a cap on the single entry amount, daily total amount and monthly
total amount it will process for
the Company, as shown the ACH Services Approval Form attached hereto. These limits may be changed by EPA
from
time-to-time, upon notice to Company. If the Company exceeds the established limits EPA may temporarily
suspend
Transaction processing or temporarily hold the funds that are in excess of the established limits. EPA will
notify Company in writing of any suspension or holding of funds. Company will incur an Over-Limit fee for
each
occurrence, as shown in the ACH Services Approval Form attached hereto.
12. Holding of Funds
The standard hold time for debit entries is three (3) business banking days from
the
Effective Entry Date of the
entries. Credit Entries are settled same day as the Effective Entry day of the Entry. Company may request a
reduction in the hold time for debit entries by submitting a written request to EPA. EPA may require a
separate
security deposit to support such a reduction, but is under no obligation to grant Company's request for
reduction.
EPA shall (i) process Entries from Company 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.
Should EPA observe any irregular Entry or suspect fraudulent activity by
Company,
or
as required by law, EPA
reserves the right to place a longer hold time on any Entries without prior written notice to Company. If
hold
time is increased, EPA will notify Company in writing within 2 (two) business banking days of increase.
13. Security Deposit
A security deposit or "Reserve" may be required by EPA which shall be used by
EPA
to
offset any returned items
or chargebacks that EPA is unable to collect from Company's Settlement Account or other means as prescribed
herein. Should EPA determine that a Reserve is required such deposit will be established through the ACH
Services Approval Form. Reserve amount shall be revised based on periodic review of Company's transaction
volumes, amounts and return ratios. Company hereby grants a security interest in any such Reserve funds held
by
EPA to secure Company's existing and future obligations to EPA under this Agreement. The Reserve funds shall
be
held by EPA for ninety (90) calendar days beyond the date of the last item processed by EPA on Company's
behalf.
In the event EPA has reason to believe that Company has acted in a fraudulent manner or has not obtained
proper
authorization from the receiver for transaction processed, EPA may extend the hold on the Company's Reserve
funds up to the maximum time allowed by law.
14. The Settlement Account
EPA may, without prior notice or demand, obtain payment of any amount due and
payable to it under this Agreement
by debiting the settlement account of Company identified in the ACH Services Approval Form. Company shall at
all
times maintain a balance of available funds in the Settlement Account to cover Company's obligations under
this
Agreement. Company agrees that EPA or any affiliate of EPA may have the right to debit the Settlement
Account
in
order to collect funds owed to EPA in regards to this Agreement at any time deemed necessary by EPA. Also,
EPA
may set off against any amount it owes to Company, in order to obtain payment of Company's obligations under
this Agreement. Upon request of EPA, Company agrees to promptly provide to EPA such information pertaining
to
Company's financial condition as EPA may reasonably request.
15. Payment by Company for Entries; Payment by EPA for Entries
Company shall pay EPA the amount of each credit Entry transmitted by EPA
pursuant
to
this Agreement at such time
on the Settlement Date with respect to such credit Entry. Payment will result in a single debit to the
Company's
Settlement Account on the Settlement Date for the sum of all credit Entries with that day's Settlement Date.
Company shall promptly pay EPA the amount of each debit Entry returned by an
RDFI
that was transmitted by EPA
pursuant to this Agreement. In the case of a Company on Straight Settlement all debit Entries returned by an
RDFI will result in a debit to the Settlement Account the day the return is received by EPA from the ACH
Operator. If more than one return is received, the debit to the Settlement account will be a total of all
returns received for that day by EPA. In the case of a Company on Net Settlement, all debit Entries returned
by
an RDFI will result in a reduction of the settlement for the original Entry. If return is received after the
settlement date of the original entry, the return will result in a reduction in settlement due the day the
return is received by EPA from the ACH Operator. If no settlement is due the date the return is received,
there
will be a debit to the Settlement Account for the amount of the return.
Company shall promptly pay EPA the amount of each debit Entry returned by an RDFI that was transmitted by
EPA
pursuant to this Agreement. In the case of a Company on Straight Settlement all debit Entries returned by an
RDFI will result in a debit to the Settlement Account the day the return is received by EPA from the ACH
Operator. If more than one return is received, the debit to the Settlement account will be a total of all
returns received for that day by EPA. In the case of a Company on Net Settlement, all debit Entries returned
by
an RDFI will result in a reduction of the settlement for the original Entry. If return is received after the
settlement date of the original entry, the return will result in a reduction in settlement due the day the
return is received by EPA from the ACH Operator. If no settlement is due the date the return is received,
there
will be a debit to the Settlement Account for the amount of the return.
In the case of a Company on Straight Settlement, EPA shall pay Company the total
amount of all debit Entries
transmitted by EPA pursuant to this Agreement on the Settlement Date with respect to such debit Entries,
resulting in a single credit to the Settlement Account. In the case of a Company on Net Settlement, EPA
shall
pay Company the total amount of all debit Entries transmitted by EPA pursuant to this Agreement minus the
amount
of any returns received for the original debits on the Settlement Date with respect to such debit Entries,
resulting in a single credit to the Settlement Account.
16. Volume and Financial Re-evaluation
Company shall provide EPA and the ODFI with copies of its annual financial
statements within 45 days of
Company's fiscal year end. EPA reserves the right to re-evaluate Company's financial position at its own
discretion throughout the course of EPA's business relationship with Company. Such re-evaluation may result
in
modification of the fee structure, reserve amount, applicable discount fees or termination of this Agreement
in
accordance with the terms herein.
17. Company Representations and Agreements; Indemnity
With respect to each and every Entry transmitted by Company, Company represents
and
warrants to EPA and agrees
that (i) each person shown as the Receiver on an Entry received by EPA from Company 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 EPA as provided herein, (iii) entries transmitted to EPA by Company are limited to those types
of
credit and debit Entries set forth in Section 6, (iv) Company shall perform its obligations under this
Agreement
in accordance with all applicable laws, regulations, and orders, including, but not limited to, the
sanctions
laws, regulations, and orders administered by OFAC, laws, regulations, or orders applicable to the FinCEN;
laws
applicable to the Unlawful Internet Gambling Enforcement Act, and any state laws, regulations, or orders
applicable to the providers of ACH payment services, and (v) Company shall be bound by and comply with the
provision of the Rules (among other provisions 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. Company specifically
acknowledges that it has received notice of the rule regarding provisional payment and 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
Company shall not be deemed to have paid the Receiver the amount of the entry. Company shall indemnify EPA
against any loss, liability or expense (including attorney's fees and costs) resulting from or arising out
of
any breach of any of the foregoing warranties, representations, or agreements.
Company bears all responsibility for its own employees' actions while in
Company's
employ. Company shall
indemnify and hold harmless EPA and its officers, directors, employees and agents, from and against any and
all
claims, demands, actions, losses, damages, liabilities, expenses, expenditures, and costs including but not
limited to attorney's fees and other costs of defense, including settlement costs, that relate to or result
from
(i) any material breach of Company's representations and warranties contained herein, (ii) any alleged
violation
by Company of any applicable law, Rule or Regulation, or (iii) any action of Company, it's agents or
employees
in connection with any Entry subject to this Agreement. Further Company acknowledges that EPA may rely
solely
on
identifying numbers provided by Company to determine the bank and account in question for each Entry even if
the
numbers identify a bank or account holder that differs from the one Company has identified by name. Company
shall indemnify EPA for any losses, liabilities, costs or expenses EPA or any third party suffers or incurs
as
a
result of an incorrect account or other error. All disputes between Company and its Receiver(s) relating to
any
Entry will be settled by and between Company and Receiver. Company agrees that EPA bears no responsibility
or
involvement in any such dispute.
Company is duly organized, validly existing, and in good standing under the laws
of
the jurisdiction of its
organization.
Company has full power and to execute and deliver this Agreement and to perform
its
obligations hereunder. This
Agreement constitutes valid and legally binding obligations of Company and is enforceable in accordance with
its
terms and conditions.
Neither the execution and delivery of this Agreement, nor the consummation of
the
transactions contemplated
hereby will violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or
other
restriction of any government, government agency, or court to which Company is subject or any charter of
Company, or conflict with or create any right to accelerate, terminate, modify, or cancel or require any
notice
under any other agreement, or other arrangement to which Company is a party or by which either is bound.
The information, documents, reports, financial statements, and other
documentation
provided by Company pursuant
to this Agreement are correct, accurate, and complete and do not contain any untrue or misleading statement
or
fact.
The representations and warranties contained in this section do not contain any
untrue statement of fact or omit
to state any fact necessary in order to make these statements and information contained in this section not
misleading.
The representations and warranties contained in this section do not contain any
untrue statement of fact or omit
to state any fact necessary in order to make these statements and information contained in this section not
misleading.
Indemnification. In the event of any breach of any of the warranties stated
above
or
otherwise contained in this
Agreement, the Company shall indemnify and defend EPA and the ODFI and hold each harmless against and from
any
pecuniary loss arising out of or in respect of any such breach, including all damages, reasonable expenses,
court costs, and attorney's fees incurred in connection therewith.
18. Customer Authorizations; Record Retention
Authorization. Before the Company initiates any Entry on behalf of a Customer,
the
Company shall obtain from the
Customer such authorization as is required by the Rules. The Company shall initiate no Entry after such
authorization has been revoked or the arrangement between the Company and the Customer has terminated.
Records. Company shall retain the original or copy of each authorization for the
period specified by the Rules,
and will furnish a copy thereof if requested by EPA or the ODFI.
19. Rules and Regulations Violation
Company shall reimburse EPA for any fines or loss of funds imposed on EPA for
any
violation of the Rules or
Regulations by the Company. EPA shall provide Company written notice of any such fine. In the event Company
fails to comply with this remedy within thirty (30) days of notice, Company shall be assessed a fee per item
in
violation of the Rules or Regulations, in addition to any fees imposed by NACHA or any other governmental or
legal authority. Assessment of such additional fee will in no way limit EPA's right to obtain other remedies
available under applicable law.
20. EPA Responsibilities; Limitations on Liability; Indemnity
In the performance of the services required by this Agreement, EPA shall be
entitled
to rely solely on the
information, representations, and warranties provided by Company pursuant to this Agreement, and shall not
be
responsible for the accuracy or completeness thereof. EPA 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. EPA shall not be responsible for Company's acts or omissions (including, without
limitation, the amount, accuracy, timeliness of transmittal, or authorization of any Entry received from
Company) 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 Financial Institution's agent. Company
agrees to indemnify EPA against any loss, liability, or expense (including attorneys' fees and costs)
resulting
from or arising out of any claim or any person that EPA is responsible for any act or omission of Company or
any
other person.
EPA shall be liable only for Company's actual damages due to claims arising
solely
from EPA's obligations to
Company with respect to Entries transmitted pursuant to this Agreement. In no event shall EPA be liable for
any
consequential, special, incidental, punitive, or indirect loss or damage which Company may incur or suffer
in
connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by
EPA
and regardless of the legal or equitable theory of liability which Company may assert, including without
limitation loss or damage from subsequent wrongful dishonor resulting from EPA's acts or omissions pursuant
to
this Agreement.
Without limiting the generality of the foregoing provisions, EPA 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 EPA's control. In
addition, EPA shall be excused from failing to transmit or delay in transmitting an Entry if such
transmittal
would result in EPA' s having exceeded any limitation upon its intra-day funds position established pursuant
to
present or future Federal Reserve guidelines or in EPA'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.
Subject to the foregoing limitations, EPA'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.
EPA makes no warranty with respect to the services to be rendered under this
Agreement, including without
limitation, accuracy, merchantability, or fitness for a particular purpose. In no event will EPA be liable
for
direct, indirect, special, incidental, or consequential damages arising out of the use or inability to use
the
services or faulty service even if EPA has been advised of the possibility of such damages. The warranty and
remedies set forth above are exclusive and in lieu of all others, either oral or written, expressed or
implied.
EPA is not responsible for any costs including, but not limited to, those
incurred
as a result of lost profits
or revenue, loss of time or use of the services, loss of data, costs of consultants, cost of substitute
products, claims by third parties, or other similar costs. In no case will EPA's liability exceed the amount
of
the fees of a single month of service.
21. Payment for Services
EPA's charges for services rendered to the Company under this Agreement shall be
computed in accordance with the
ACH Services Approval Form. EPA may change the fees upon 30 days' prior written notice to the Company.
Payment
of these fees will be made by a direct charge to the Settlement Account. If a Debit for EPA's fees is
returned
or uncollectible for a period of three days after its transmittal, the EPA may cease providing services for
Company and will be excused from the performance of all its obligations hereunder until the fees and all
service
charges with respect thereto have been paid in good funds.
22. Amendments
From time to time EPA may amend any of the terms and conditions contained in
this
Agreement, including, without
limitation, any cut-off time, any business day, and any part of the Appendixes attached hereto. Such
amendments
shall become effective upon receipt of notice by Company or such later date as may be stated in EPA's notice
to
Company.
23. Termination
General. This Agreement may be terminated upon thirty (30) days' written notice
by
either party, provided that
applicable portions of this Agreement shall remain in effect for ninety (90) days after the effective date
of
termination with respect to the Reserve Account and any Entries that the Company initiates prior to the
effective termination date, to clear all returns against the Settlement Account.
Termination for Cause. EPA shall also have the right to terminate this contract
immediately for cause, which
shall include but not be limited to (i) the Company's failure to pay or settle Entries, (ii) the Company's
failure to maintain the requisite balance in the Settlement Account or Reserve Account, (iii) the Company's
failure to pay EPA's fees or service charges within three days after transmittal of a Debit to the
Settlement
Account therefore, (iv) the Company's noncompliance with applicable laws or the Rules, (v) excessive
returned
or
rejected Entries submitted by the Company, in terms of number or amount, (vi) EPA's receipt of unauthorized,
false, or fraudulent Entries or files of Entries, or inaccurate or fraudulent authentication data, (vii) the
Company's failure to conform to EPA's specifications, (viii) the ODFI is required by the Agencies or other
state
or federal regulatory bodies to terminate its contractual relationship with EPA.
Notice Requirement. If the Company terminates this Agreement without the
required
notice, the Company authorizes
EPA to debit the Settlement Account (or, if applicable, the Company's Reserve Account) for an amount equal
to
the Company's average monthly billing.
24. Miscellaneous
Presumption. This Agreement or any section thereof shall not be construed
against
any party due to the fact that
the Agreement or any section thereof was drafted by the party.
Tapes and Records. All magnetic tapes and related records that EPA uses in
rendering
services hereunder shall be
and remain its property. Upon termination of this Agreement, EPA shall, at the Company's request and
expense,
make available information contained in such tapes or records then on hand.
Assignment. This Agreement is binding upon and shall inure to the benefit of the
legal successors and assigns of
the Company and EPA, except that the Company shall not have the right to assign this Agreement or any of the
rights and duties hereunder to any person or entity without EPA written consent upon 60 days' advance
written
notice.
Entire Agreement. This Agreement, together with these Terms and Conditions, and
including the ACH Services
Approval Form, Personal Guarantee, Company Authorization, and any applicable schedules or exhibits to any of
the
aforementioned documents, constitutes the entire agreement between the parties, supersedes all prior
agreements,
oral or written, and may be modified or amended only by a writing signed by both parties.
Headings. The headings in this Agreement are for convenience of reference only
and
shall not limit or otherwise
affect any of the terms or provisions hereof.
Governing Law. This Agreement and the rights and obligations of the parties
hereto
shall be governed by and
construed and enforced in accordance with the internal laws of the United States and the State of Tennessee.
Jurisdiction and Venue. In the event that either party commences legal action
seeking monetary, declaratory, or
injunctive relief with respect to enforcement, interpretation, or violation of this Agreement or any other
agreement between EPA and the Company, the parties (i) agree that any such action may be commenced only in a
court of competent subject-matter jurisdiction in Fulton County, State of Georgia, (ii) consent to venue and
personal jurisdiction in such a court, and (iii) waive any defense of lack of venue or personal jurisdiction
in
any such suit, action, or proceeding. The parties further (A) agree that process in any such suit, action,
or
proceeding may be served by mailing a copy thereof by certified mail, return receipt requested, to the other
party at the address set forth on the ACH Services Approval Form attached hereto, and (B) waive any defense
of
insufficiency of service of such process.
Attorney's Fees. The prevailing party in any legal action regarding the
enforcement,
interpretation, or
violation of this Agreement shall be entitled to recover expenses, court costs, and attorney's fees from the
other.
Severability. If any provision of this Agreement is held to be illegal, invalid,
or
unenforceable under present
or future laws effective during the term hereof, such provision shall be fully severable, and this Agreement
shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a
part
hereof; and the remaining provisions herein shall remain in full force and effect. Furthermore, in lieu of
such
illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible
and
be
legal, valid, and enforceable.
Waiver. Waiver of the benefit of any provision of this Agreement must be
in
writing to be effective. The
waiver by any party hereto of a breach of any provision hereof shall not operate or be construed as a waiver
of
any subsequent breach. No action taken pursuant to this Agreement shall be deemed to constitute a waiver by
such
party of compliance by the other party hereto with any of the covenants or other obligations contained
herein.
A
failure by a party to insist upon strict compliance with any term of this Agreement, enforce any right, or
seek
any remedy upon any default of any other party shall not affect, or constitute a waiver of, such party's
right
to insist upon such strict compliance, enforce that right, or seek that remedy with respect to that default
or
any prior, contemporaneous, or subsequent default.
Notice. Any notice or other communication required or permitted by this
Agreement shall be in writing and
may be given by personal delivery, overnight delivery service, or certified mail (return receipt requested)
(postage prepaid). Notice shall be deemed given upon personal delivery thereof, on the day after such notice
is
deposited with an overnight delivery service or upon receipt of delivery of such notice by certified mail.
Notices shall be sent to the addresses set forth on the ACH Services Approval Form. Failure or refusal of a
party to accept receipt of a notice or other communication hereunder shall in no manner invalidate the
notice.
Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed
to be an original but all of which together will constitute one and the same instrument. This Agreement may
be
executed by facsimile signatures, which shall have the same force and effect as original signatures.
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AUTOMATED CLEARING HOUSE (ACH) AGREEMENT.
GENERAL. By signing this Agreement, Merchant hereby retains and appoints
Company and any Third-Party
Sender it may utilize from time to time ("Third-Party Sender") as Merchant's exclusive data processing and
collection agent for processing Entries originated by Merchant for Credit and Debit to accounts of
Customers,
in accordance with the terms and conditions contained in the Agreement ("Terms and Conditions"). The Terms
and
Conditions are incorporated by reference in this Agreement and, in addition to any other exhibits, addenda,
schedules, terms or amendments, shall comprise and be referred to as "the Agreement."
AUTHORIZATION FOR AUTOMATIC FUNDS TRANSFER (ACH). By signing this
Agreement,
Merchant grants consent
and authorization to Company or its Third-Party Sender where applicable to initiate or transmit automatic
Debit, Credit and Adjustment Entries to the Merchant's Settlement Account and Reserve Account. Each person
signing below understands and agrees that Company, or its Third-Party Sender, will debit the account
specified
by Merchant for all setup fees, including any non-refundable application fee, as an ACH item and, upon
receipt
of the completed Application and Agreement, all subsequent monthly service and transaction fees, Returned
Entries, charge backs, required withholdings, fines, fees, damages, or any other cost of processing
transactions for Merchant via an ACH transaction in accordance with the Terms and Conditions included in
this
Agreement.
THIRD-PARTY BENEFICIARY. Merchant expressly acknowledges and agrees that
Company's Third-Party Sender
e-Prodigy ACH, LLC D/B/A ACHBanking is an express and intended third-party beneficiary of the Agreement and
has all the rights under the Agreement as if it were a party thereto, including, without limitation, the
right
to enforce any terms of the Agreement or assert claims against Merchant for breach of the Agreement.
AGREEMENT SIGNATURE. Each person signing below agrees that they have read
and
agree to the Terms and
Conditions which have been provided to them and certifies that all information provided in the Application
or
otherwise to Company or its Third-Party Sender to provide services under this Agreement is true, correct and
complete. Each person agrees to notify Company or its Third- Party Sender where applicable of any and all
changes which occur from time to time in the information and statements contained in the Application and
Agreement or otherwise provided to Company, Third-Party Sender, the ODFI, or anyone else relating in any way
to this Agreement.
PERSONAL GUARANTEE To endure and in consideration of Third-Party Sender's
acceptance of the Merchant
Application and this Agreement, the undersigned agrees to be bound by all terms and provisions of this
Agreement (which includes this Addendum and the Terms and Conditions) to the same extent and in the same
manner as Merchant, and unconditionally and irrevocably personally guarantees performance of all of
Merchant's
obligations under the Terms and Conditions provided https://achbanking.com/company/agreement (URL) (as
amended, renewed or extended) and payment of all sums due to Third-Party Sender by Merchant thereafter and,
in
the event of a default, hereby waives notice of default and agrees to indemnify Third-Party Sender for any
and
all funds due from Merchant pursuant to terms of this Agreement. Guarantor(s) further agrees that
Third-Party
Sender may proceed directly against Guarantor(s) without first exhausting Third-Party Sender's remedies
against the Merchant, any other person or entity responsible to Third-Party Sender or any security held by
Third-Party Sender.
PLEASE CAREFULLY REVIEW THE ACH TERMS AND CONDITIONS PROVIDED TO YOU AND AVAILABLE AT https://achbanking.com/company/agreement [URL], WHICH
ARE HEREBY INCORPORATED INTO THIS BY REFERENCE. THE TERMS AND CONDITIONS YOU ARE AGREEING TO ARE VERSION 2
(v.2). BY SIGNING BELOW YOU (I) REPRESENT AND WARRANT THAT YOU HAVE FULL POWER AND AUTHORITY TO BIND THE
PARTY ON WHOSE BEHALF YOU SIGN; (II) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO THOSE TERMS
AND
CONDITIONS AND (III) AGREE TO ACCEPT ELECTRONIC NOTIFICATION OF ANY CHANGES TO THOSE TERMS AND CONDITIONS.
CONTINUED ORIGINATION OR ACCEPTANCE OF DEBIT OR CREDIT ENTRIES FROM OR BY COMPANY OR ITS THIRD- PARTY
SENDER
AFTER RECEIVING NOTIFICATION OF CHANGES TO THE TERMS AND CONDITIONS WILL CONSTITUTE MERCHANT'S ACCEPTANCE
OF
THE CHANGES AND ITS AGREEMENT TO THE CHANGED TERMS AND CONDITIONS.