NELNET BANK
BUSINESS ONLINE BANKING SERVICES
This agreement for Business Online Banking Services (“Agreement”) is between the person or business entity acknowledging its acceptance of the terms and conditions of this Agreement below (“Customer”; “you”; “your”) on behalf of Customer and each Authorized User (as defined below) it may authorize from time to time, which shall govern your use of the online banking services (each, a “Service” and, collectively, the “Services”) provided to you by Nelnet Bank (“Nelnet Bank”; “Bank”; “we”; “our”; “us”) at www.nelnetbank.com (“Website”). You further acknowledge and agree that this Agreement may be amended and/or supplemented from time to time by documents we provide to you pertaining to the terms and conditions of the Services or for a specific Service we may make available to you. Please read this Agreement and any other documents carefully.
This Agreement sets forth the terms and conditions under which Bank will provide the Services. The Services provided hereunder supplement and are subject to the terms of your Business Account Deposit Agreement and other services agreements and disclosures you have received, which are incorporated by reference and made part hereof, including as each may be amended from time to time (collectively, the “Account Agreement”). The additional definitions and terms and conditions in this Agreement apply to the Services. To the extent there is a conflict between the Account Agreement and this Agreement, the terms of this Agreement will govern the Services.
This Agreement covers your and our rights and responsibilities concerning the Services offered to you by the Bank. The enrollment in and/or termination of the Services may be done selectively and will be subject to approval and/or the application of certain limitations by the Bank in its sole discretion. Customer agrees to complete any other forms or supply any other information requested by Bank from time to time.
SECTION I: GENERAL TERMS AND CONDITIONS
1. BUSINESS ONLINE BANKING SERVICES. Bank will make available to Customer Services that will enable Customer to gain access to the balance in its deposit account(s) held at Bank (each, an “Account”) and other information regarding the Accounts, as well as such additional Services as may be offered by us from time to time.
2. AUTHORIZED USERS AND ADMINISTRATOR. Customer will designate an individual(s) as Customer’s Administrator who shall have access to the Services as so designated. Customer understands and agrees (i) the individual designated as Customer Administrator(s) shall access and use the Services as defined in Customer’s Implementation Form and (ii) the Customer assumes the complete and absolute risk of loss for all acts and omissions by the Administrator or any Authorized Users. The Bank is entitled to rely, without further inquiry, on any information or direction submitted by the Authorized Customer Administrator(s) or Authorized Users
3. SECURITY ITEMS; SECURITY PROCEDURES. Upon enrollment, Customer can access the Services from the Website by using the security procedures as herein described (“Security Procedures”). Bank will provide the Administrator designated by Customer with credentials to access the Services. The Administrator shall be responsible for providing credentials to each additional Authorized User that may be designated by Administrator from time to time, including the permissions and transaction limits applicable to each. The Customer Administrator and Authorized Users must change their individual passwords from time to time for security purposes as prompted by the Bank or more frequently as Customer deems appropriate.
Customer acknowledges that its Administrator(s) will, and is authorized to, set up Authorized Users and provide Authorized Users with their Security Items. Customer further acknowledges the Administrator may, and is authorized to, change or de-activate Security Items from time to time and at his/her sole discretion. Customer acknowledges the Bank is entitled to rely, and will so rely, on the Administrator(s) to correctly maintain and administer the access rights of all Authorized Users, correctly distribute Security Items and ensure each Authorized User follows all Security Procedures.
In addition, Customer may, from time to time, change or delete the Administrator by completing and submitting the appropriate documentation or by otherwise notifying the Bank in writing. Customer acknowledges and agrees that any addition, change or deletion is not effective until received and processed by the Bank. Customer also agrees Bank may refuse to comply with requests from any individual on behalf of Customer until Bank receives documentation reasonably satisfactory to it confirming the individual’s authority.
Certain tools are issued by Bank to the Administrator(s) to distribute to Authorized Users to enable access to the Services (“Security Items”). The confidentiality of any passwords and/or the physical security of each Token is the sole responsibility of Customer. Customer acknowledges access to the Services may include, as part of the Security Items, a multi-factor authentication security procedure (“One-Time Passcode”; “OTP” or “Token”). A One-Time Passcode is generated to Authorized Users with approval authority for certain types of transactions and is sent to an Authorized User’s designated method of receipt, either e-mail and/or SMS message. The Bank may also change or implement additional tools or methods as part of the Security Procedures from time to time. Any such changes generally will be effective immediately upon notice to Customer. Customer will be deemed to accept any such changes if Customer accesses or uses any of the Services after the date on which the change becomes effective.
When an Authorized User leaves Customer’s employ, their Security Items must be deleted/canceled by Customer and, if a Token device had been issued to such Authorized User, Bank must be promptly notified so that Bank may deactivate such departing Authorized User’s Token. In the event of any change or revocation in authority of an Authorized User, the Administrator shall be solely responsible for modifying an Authorized User’s access rights or deleting such individual as an Authorized User. If the Administrator requires a Token for any additional Authorized User, the Administrator(s) must request the Token from the Bank in writing to distribute to an Authorized User.
Customer further acknowledges and agrees that certain transactions initiated through the Services may incorporate “dual control” or separation of duties as follows: one Authorized User initiates transactions and a second different Authorized User approves such transactions with his/her Security Items, which will include the Token or OTP. Customer acknowledges that the implementation of this dual control security procedure, as may be required, is Customer’s sole responsibility.
The Security Items identify and authenticate Customer to Bank when Customer accesses or uses the Services. Customer authorizes Bank to rely on the Security Items to identify Customer when Customer accesses or uses any of the Services. Customer acknowledges and agrees the Bank is authorized to act on any and all communications or instructions received using the Security Items, regardless of whether the communications or instructions are authorized by Customer. Bank owns the Security Items, and Customer may not transfer them to any other person or entity without Bank’s prior written consent, which consent may be withheld in Bank’s sole and exclusive discretion.
Customer acknowledges and agrees the Security Items and other Security Procedures applicable to Customer’s use of the Services as set forth herein are a commercially reasonable method for the purpose of verifying whether any use of the Services was initiated by Customer. Customer also agrees any election Customer may make to change or waive any Security Procedures recommended by Bank is at Customer’s sole risk and any loss resulting in whole or in part from such change or waiver will be Customer’s sole responsibility. Customer further acknowledges and agrees the Security Items are not intended to detect any errors relating to or arising out of any use of the Services.
If Customer has reason to believe any Security Items have been lost, stolen or used (or may be used) or that any use of the Services has been or may be made with any Security Items without Customer’s permission, Customer immediately must contact its Administrator and Bank. In no event will Bank be liable for any unauthorized transaction(s) that occurs with any Security Items.
4. ACTIONS ON INSTRUCTIONS. Customer understands and agrees that the Bank (and other banks) rely on account numbers and routing numbers to identify different banks or financial institutions (and not the names of the accounts or the financial institutions) when executing Instructions, including wire transfers, Payment Orders, ACH entries, draw down requests or other instructions. In acting on such Instructions, the Bank shall be entitled to rely solely on the information, instructions, representations and warranties provided by Customer, even if an Instruction contains inconsistent information the Bank knows to be inconsistent, and shall not be responsible for the accuracy or completeness thereof. Bank is under no duty to independently determine whether the name and identifying bank account number in any Instruction are consistent with the name or other information contained in such Instruction. Bank shall have no duty to inquire as the propriety of any Instruction initiated by the Customer even if it will result in payment to any officer, employee or agent of Customer, an Administrator or an Authorized User, or is otherwise tendered in payment of any such individual’s obligations. In acting on such Instructions, Customer is obligated to pay the amount specified in such Instructions and agrees to compensate Bank for any loss or expenses (including reasonable in house and outside attorneys’ fees and related costs) incurred by Bank as a result of such reliance on executing Customer’s Instructions.
Cancellation or Amendment. If Customer asks Bank to amend or cancel any Instruction and Customer’s request complies with the Bank’s procedures, Bank will use reasonable efforts and have a reasonable period of time to act upon such Instruction and comply with Customer’s request. Bank will not be liable to Customer, however, if Bank fails for any reason to amend or cancel the Instruction.
No Action on Instruction. Bank will not be obligated to act upon any Instruction: (a) that is not in accordance with Bank’s current Instructions as they relate to such request; (b) for which Bank is not able to obtain necessary authentication; (c) that will result in a charge to any of Customer’s Accounts with Bank exceeding the available funds in such Account or any pre-established credit/deposit limit; (d) that will exceed any credit or other limit established for Customer by the Bank from time to time; (e) that is incomplete or ambiguous; (f) on which, in Bank’s sole judgment, Bank is unable to act because of legal process, applicable law or regulation, or other government guidelines (including, without limitation, if acting upon such Instruction will result in Bank exceeding any limitation or not being in compliance with any present or future guidelines established by the Federal Deposit Insurance Corporation or other regulatory body, or any rule or regulation of any other applicable governmental regulatory authority); (g) if, in Bank’s sole judgment, Customer’s financial condition is impaired or Bank suspects fraud or improper or unlawful activity in connection with any Service; or (h) if doing so will, in Bank’s sole judgment, expose Bank to potential liability under any applicable law or regulation.
If Bank rejects or does not act upon an Instruction, Bank will use reasonable efforts to so notify the Customer within a reasonable time by telephone, facsimile, electronic transmission or overnight mail. Bank will have no liability to Customer (whether for interest or otherwise) or any other person by reason of any delay in providing, or any failure to provide, such notice or the requested transaction.
Customer is responsible for verifying Bank has received each Instruction. Bank will have no liability in connection with an Instruction Customer attempts to issue to Bank that is not actually and timely received by Bank.
Instructions Received After Cut-Off Time. Bank may establish Cut-Off times for transactions. Instructions received after a Cut-Off time are deemed presented to the Bank on the next Business Day. Bank may, in its discretion, accept and attempt to process Instructions after the Cut-Off time, but Bank will have no obligation to do so and will have no liability for deeming the Instructions received on the next Business Day.
Changes. From time to time Customer may change information the Customer has provided to the Bank. Bank may rely on the information previously supplied by Customer until the Bank receives written notice of any change via such means and in such form as prescribed by Bank and signed by an Authorized User of Customer and Bank has a reasonable opportunity to act on such written notice. All such changes will be subject to the Agreement.
5. INFORMATION REPORTING.
Previous Day Reporting. Bank will make available to Customer Account transactions balance information related to control and manage Customer Accounts through the Website. This may include information generated from multiple Services used by the Customer and may include image of deposit tickets, deposit items, paid checks, return deposit items and stop payment information. Such information may be subject to adjustment upon final posting. The length of time periods for which transaction history and check images may be viewed may vary and depend upon various factors including account opening and Service implementations.
Current Day Reporting. Bank will make information about Account transactions available to Customer, such as balance information available through the Website. Information reported on a current day basis is subject to updating and therefore, at any point in time, may not reflect the information on our records at such time. In addition, such information may be subject to adjustment upon final posting.
6. INTERNAL TRANSFERS. Customer may initiate real-time, scheduled and recurring Internal Transfers between and among its linked Accounts. Bank may assume all Internal Transfers are properly authorized and will have no obligation to verify, by telephone or by any other means, any such transfers. By initiating any Internal Transfer of funds from an Account, Customer represents and warrants to Bank the balance of collected and available funds in the Account is equal to or greater than the amount of the transfer.
Bank may in its sole discretion, but will not be obligated to, complete any transaction in connection with the Services if there are insufficient available funds in Customer’s Account(s) to complete the transaction. Bank has no obligation to verify the availability of collected funds in the Account at the time of the transfer request. If an overdraft is created as a result of a transfer request, Customer will reimburse Bank for the amount of the overdraft immediately upon request and pay Bank charges imposed as a result of the overdraft. To secure any overdraft, Customer grants to Bank a security interest in all of Customer’s assets in the possession of, or held for the account of, Bank. Such security interest will attach immediately upon the creation of any such overdraft. Customer agrees that Bank is under no obligation to create an overdraft on any transaction for any purpose. If any of Customer’s Accounts become overdrawn, underfunded or for any reason contain a negative balance, Bank will have the right of set off against all of Customer’s Accounts and other property maintained by Customer at Bank, and Bank will have the right to enforce its interests in any collateral held by it to secure any debts of Customer to Bank.
7. STOP PAYMENT SERVICES. Customer agrees that a stop payment request with respect to any transaction must be received by Bank within time required by the terms and conditions of the applicable Service and, in any event, Bank will use reasonable efforts and have a reasonable period of time to act upon such a request. With respect to the Services, Customer may make the stop payment request online where a Service possesses such feature. Under no circumstances shall Bank or any of its agents be responsible for any losses resulting from any delay in Bank’s receipt of stop payment request transmitted through the Service.
IF ANY REQUIRED NUMBER OR AMOUNT IS INCORRECT, OR IF THE REQUEST IS MISSING OR CONTAINS INFORMATION REQUIRED THAT IS INACCURATE, PAYMENT WILL NOT BE STOPPED AND BANK WILL NOT BE RESPONSIBLE FOR THE PAYMENT. All other information provided must be accurate. Stop payments using the Services are generally effective for one hundred eighty (180) days. Except as otherwise provided by applicable law or rule, Customer shall not have the right to cancel a stop payment request or recall any payment or transfer made hereunder after it has been transmitted to Bank.
8. ELECTRONIC STATEMENTS. Customer, subject to enrollment requirement may elect to stop or resume mailing of paper statements for Accounts by requesting this function from Bank. An Account accessible via the Services as authorized by Bank may be enrolled for the electronic delivery of statements. Customer may view, print and download current statements and such period of statement history as set forth on the Business Online Banking Service. Customer must have a current version of Adobe Acrobat software installed on its computer sufficient to support access to a PDF file to view, save or print an electronic statement.
9. ALERT NOTIFICATION –The Services allow Customer to voluntarily choose alert messages regarding Customer’s accounts including but not limited to alerts regarding balance information and payment transactions and, other features. Bank may add new alerts from time to time, or cancel existing alerts. If Customer has opted to receive an alert that is being canceled, Bank will notify Customer in accordance with the terms hereof. Each alert has different options available, and Customer will be asked to select from among these options upon activation of Customer’s alerts service.
By using a Service that includes the issuance of an e-mail message or SMS text notice to an Authorized User, you represent and warrant to Bank that you are the owner of (or have been granted legal authority by the owner) the e-mail address and/or the mobile phone number you provide to receive and issue and required communications with Bank as described in this Agreement and any additional terms and conditions that may apply to a Service. You hereby give consent to receive e-mails and/or SMS text messages from us or our agents with respect to the applicable Service.
FURTHER, YOU HEREBY AGREE THAT THE BANK AND/OR ANY OF OUR AGENTS MAY USE AUTOMATIC TELEPHONE DIALING SYSTEMS IN CONNECTION WITH SENDING SMS TEXT MESSAGES TO ANY MOBILE PHONE NUMBER YOU PROVIDE TO US.
Electronic alerts will be sent via method(s) the user has selected: email, SMS text and/or phone. If Customer’s email address changes, Customer is responsible for informing Bank of the change. Customer understands and agrees that Customer’s alerts may be delayed or prevented due to a variety of factors. Bank will use commercially reasonable efforts to provide alerts in a timely manner. Bank neither guarantees the delivery nor the accuracy of the contents of any alert. Customer also agrees that Bank shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by Customer or any third party in reliance on an alert. Customer agrees that Bank is not responsible for any costs or fees incurred as a result of alerts sent to email addresses or phone numbers connected with a mobile phone or similar mobile devices.
10. MOBILE ACCESS. Customer acknowledges and agrees that its Administrator and Authorized User(s) will be able to access Business Online Banking through a mobile device, such as a smart phone or tablet computer, using a wireless web browser or local Wi-Fi network. Mobile access is subject to the same authorization and Security Items required for access to the Website by Customer, the Administrator and Authorized Users. There may be separate and/or supplemental terms and conditions applicable to initiating access through a mobile device.
11. RIGHT TO TERMINATE USE OF SERVICE
We reserve the right to terminate your use of the Service at any time if we suspect that You have violated any of these terms or conditions or are otherwise using the Service in a fraudulent or other illegal manner.
12. DISCLAIMER OF WARRANTIES
You acknowledge and agree that from time to time your use of the Service may be delayed, interrupted, or disrupted for an unknown period of time for reasons we cannot control. Neither we nor our affiliates will be liable for any claim resulting from or related to the Service due to such delay, interruption, disruption or similar failure. We have no obligation to correct any bugs, defects or errors in the Service to otherwise support, maintain, improve, modify, upgrade, update or enhance the Service. EXCEPT AS OTHERWISE PROVIDED HEREIN, AND SUBJECT TO APPLICABLE LAW, BANK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SERVICES. BANK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICES DESCRIBED OR PROVIDED. BANK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
13. LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE PROVIDED HEREIN AND SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL BANK OR THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES ARISING OUT OF (I) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICES; (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES DESCRIBED OR PROVIDED, (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (IV) ANY OTHER MATTER RELATING TO THE PRODUCTS OR SERVICES DESCRIBED OR PROVIDED, EVEN IF THE BANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
IN THE EVENT THE FOREGOING EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES MAY NOT APPLY IN ANY JURISDICTION, ANY LIABILITY OF BANK OR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS IN SUCH JURISDICTIONS SHALL BE LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL IN NO EVENT EXCEED FIVE HUNDRED DOLLARS ($500.00).
14. INDEMNIFICATION
You acknowledge and agree that you are personally responsible for your conduct while using the Service and, except as otherwise provided in this Agreement, you agree to indemnify, defend and hold harmless us and owners, directors, officers, employees and agents from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees resulting from or arising out of your use, misuse, errors, or inability to use the Services, or any violation of this Agreement.
SECTION II: ACH ORIGINATION SERVICES
Customer wishes to initiate certain credit and debit entries Entries (as defined below) by means of the Automated Clearing House (“ACH”) network pursuant to the terms hereof and the NACHA Operating Rules and Guidelines (“NACHA Rules”) and Bank is willing to act as an Originating Depository Financial Institution (“ODFI”) with respect to such Entries. Customer hereby acknowledges that it has access to a copy of the NACHA Rules, a copy of which can be obtained from the NACHA website at www.nacha.org or www.achrulesonline.org.
Unless otherwise defined in this Agreement, capitalized terms shall have the meanings provided in the NACHA Rules. The term "Entry" shall have the meaning provided in the NACHA Rules and shall also mean the data received from Customer from which Bank prepares and/or initiates each Entry. An “Originator” is a person who has authorized an ODFI to transmit an ACH Entry. A “Receiver” is a person that has authorized an Originator to initiate an Entry to their account at the Receiving Depository Financial Institution (“RDFI”) . An “ACH Operator” is the entity that acts as a central facility for processing ACH Entries, such as the Federal Reserve Bank.
NACHA Rules. Customer agrees to comply with and be bound by the NACHA Rules and any other applicable laws, regulations and guidance. Bank reserves the right to audit Customer, as Originator, for compliance with this Agreement and the NACHA Rules. In the event that Customer violates the NACHA Rules or any other applicable law or regulation and a fine is imposed on Bank because of a Customer violation, Bank may charge the fine to Customer. Entries may not be initiated that violate applicable federal and state laws, which include but are not limited to Unlawful Internet Gambling Enforcement Act (Federal Reserve Board Regulation GG) which prohibits the origination of illegal ACH transactions. The Bank will not process any Entries it reasonably believes are illegal and restricted under Regulation GG or for any other reason.
Customer shall originate Entries through Bank in compliance with formatting and other requirements in the NACHA Rules. Entries transmitted to Bank by Customer are limited to the following types of ACH Standard Entry Class (“SEC”) codes: CCD and PPD, unless otherwise agreed upon in writing by Bank. The use of any other SEC code is prohibited without the express prior written consent of Bank. Customer may submit Entries via Bank’s Commercial Online System or, with prior written approval, via secure transmission directly to Bank or its designated vendor. The total dollar amount of Entries submitted by Customer to Bank on any one day shall not exceed the Customer’s ACH Daily Limit set from time to time and provided to the Customer.
With respect to each Entry transmitted to Bank by Customer, Customer represents and warrants to 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 Bank as provided herein, and (c) each Entry contains accurate information. Customer agrees that it has financial and legal responsibility for all transactions originated within the Statute of Limitations in each State in which it conducts business with Bank. The “Effective Entry Date” is the date specified on the Entry on which the Originator intends the Entry to be settled.
Security Procedures. Customer agrees to comply with all Security Procedures for the Agreement and any additional Security Procedures that may apply to ACH Origination. The Customer will remake any Entry or file at the request of Bank. Customer may use their own program to create Entries in a NACHA formatted file to transmit them to the Bank. Bank will provide the Customer with Nacha format standards to which Customer will adhere. Customer agrees that the Setoff Account on every batch of Entries will be an account established at Bank.
Customer is strictly responsible to establish and maintain procedures to safeguard against unauthorized transmissions. Customer 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 applicable Security Procedures and any Security Items, as well as account information. If Customer believes or suspects that any such information or Instructions have been made available to, known or accessed by unauthorized persons, Customer agrees to notify Bank of such breach immediately, followed by written confirmation. The occurrence of unauthorized access will not affect any transfers made in good faith by Bank prior to receipt of such notification and within a reasonable time period to take action to prevent unauthorized transfers.
Compliance with Security Procedures. If an Entry received by Bank in accordance with the applicable Security Procedure or otherwise purports to have been transmitted or authorized by the Customer, it will be deemed effective as Customer’s Entry and Customer shall be obligated to pay Bank the amount of such Entry even though the Entry was not authorized by the Customer, provided Bank accepted the Entry in good faith and acted in compliance with the Security Procedures outlined in this Agreement with respect to such Entry. If signature comparison is to be used as part of the Security Procedures, Bank shall be deemed to have complied with that part of the procedures if it compares the signature accompanying a file of Entries with the signature of an Authorized User of the Customer and, on the basis of such comparison, believes the signature to be that of such Authorized User. If an Entry received by Bank was actually transmitted or authorized by Customer, Customer shall pay Bank the amount of the Entry, whether or not Bank complied with the Security Procedures with respect to that Entry and whether or not that Entry was erroneous in any respect or that error would have been detected if Bank had complied with such procedures.
Cut-Off Times; Delays. Customer must adhere to the applicable Cut-Off Time. Bank assumes no liability for delays in processing by any ACH Operator, RDFI, or third-party service provider (any entity that facilitates ACH processing on behalf of an ACH Participant).
Processing of Entries; Settlement. Except as provided for On-Us Entries and Rejections, Bank shall (a) process Entries received from Customer to conform with the file specifications set forth in the Rules, (b) transmit such Entries as an ODFI to the ACH Operator acting as an Automated Clearing House processor, and (c) settle for such Entries as provided in the Rules.
Bank shall transmit such Entries to the ACH Operator one (1) or two (2) Business Days for Credit Entries and one (1) Business Day for Debit Entries prior to the Effective Entry Date shown in such Entries, provided: (i) such Entries are received by the applicable Cut-Off Time , (ii) the Effective Entry Date is at least one (1) or two (2) days after such Business Day for Credit Entries and one (1) day after such Business Day for Debit Entries, and (iii) the ACH Operator is open for business on such Business Day. Entries shall be deemed received by Bank in the case of transmittal by electronic transmission when the transmission, and compliance with any Security Procedures, is completed. If any of the requirements of such clauses (i), (ii) or (iii) is not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the Cut-Off Time for a next Business Day deposit of the ACH Operator.
On-Us Entries. In the case of an On-Us Entry, Bank shall credit 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 clauses (i), (ii) and (iii) of the foregoing paragraph are met. If any of those requirements is not met, Bank shall use reasonable efforts to credit the Receiver’s account in the amount of such Entry no later than the next Business Day following such Effective Entry Date. An “On-Us Entry” is an Entry received for credit or debit to an account maintained with the Bank.
Rejection of Entries. Bank shall reject any Entry that does not comply with the requirements of this Agreement, the Rules and Bank’s procedures. Bank shall have the right to reject any Entry if Customer has failed to comply with its payment obligations. Bank shall have no liability to Customer by reason of the rejection of any such Entry or the fact that notice is not given at an earlier time than provided herein. Bank shall be permitted to reject any Instructions orally, electronically, or in writing, and notice of rejections communicated by any such means shall be effective at the time such notice is given by Bank.
Amendment or Cancellation of Entry. Customer shall have no right to amend any Entry after its receipt by Bank. However, Bank shall use reasonable efforts to act on a request by Customer for cancellation of a file of Entries 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. Only an entire file of Entries, for example, an entire payroll, may be cancelled/deleted. Bank cannot delete a single Entry from a file of payments. This will require an Item Reversal after the entire file of entries has been processed, as more fully explained below. Customer shall reimburse Bank for any expenses, losses, or damages Bank may incur in effecting or attempting to effect Customer’s request for the cancellation of a file of Entries or Entry.
Prenotification. Bank strongly recommends that Customer send prenotification entries prior to sending live entries. A prenotification Entry is used in the ACH system to test the acceptability of entries. The prenotification process serves to: notify the receiving financial institution that a live dollar transaction is forthcoming, and verify the accuracy of the account number being credited or debited. Failure to send a prenotification significantly increases the possibility of future payments being returned. To allow adequate response time, a prenotification must be sent through the ACH system at least three (3) banking days prior to a live Entry being initiated. It is the responsibility of the receiving financial institution to verify the accuracy of the prenote and Receiver’s account number and notify Bank if any information needs to be corrected. Upon notification from the receiving financial institution, Bank will notify Customer if changes are required. It is Customer’s responsibility to make the changes prior to the next live Entry being sent.
Reversal. If Customer sends an Entry or file of Entries in error or duplicate and the Entry posts to a Receiver’s account, it is Customer’s responsibility to correct the error. Customer may request a reversal of such Entry(ies) through the Automated Clearing House Network. The Receiver’s financial institution must receive Customer’s reversal request no later than opening of business on the fifth (5th) Business Day after the settlement date of the erroneous item(s) or file. Customer may request Bank to process a reversal Entry/file on behalf of the Customer within four (4) Business Days of settlement date of the original Entry. Customer shall reimburse Bank for any expenses, losses, or damages Bank may incur in effecting or attempting to affect Customer’s request for the reversal of an Entry/file. This process does not guarantee that Customer will reverse the flow of funds. If funds are not available for a reversal, then Customer must pursue reimbursement for the funds directly with the Receiver of the Entry outside of the Automated Clearing House Network.
Returns, Notifications of Change (NOCs). Except for an Entry retransmitted by Customer as set forth herein, Bank shall have no obligation to retransmit a Return Entry to the ACH Operator if Bank complied with the terms of this Agreement with respect to the original Entry.
Bank shall provide Customer all information, as required by the Rules, with respect to each Return, Notification of Change (“NOC”) Entry or Corrected Notification of Change Entry received by Bank relating to Entries transmitted by the Customer. Bank will provide such information to the Customer within two (2) Business Days of the settlement date of each Return, NOC, or Corrected NOC Entry. Customer shall ensure that changes requested by the NOC or Corrected NOC are made within six (6) Business Days of Customer’s receipt of the NOC information from Bank or prior to initiating another Entry to the Receiver’s account, whichever is later. Return Entries will not be re-initiated, except for those returned due to insufficient or uncollected funds up to an additional two (2) times, without the Receiver’s re-authorization. Returns, NOCs, and corrected NOCs that are received from the RDFI will be provided to the Customer.
Payment by Customer for Entries; Payment by Bank for Return Entries. Customer shall pay Bank the amount of each credit Entry transmitted by Bank pursuant to this Agreement on the Effective Entry Date of each credit Entry, or if required to prefund, payment must be made when the Entry is transmitted to Bank or as otherwise determined by Bank. Customer shall promptly pay Bank the amount of each debit Entry returned by a RDFI that was transmitted by Bank pursuant to this Agreement. Payment shall be made no later than the day Bank received the returned Entry. Bank shall pay Customer the amount of each debit Entry and each On-Us Entry transmitted by Bank on Settlement Date or up to two (2) days after Settlement Date at the discretion of Bank and pursuant to this Agreement. Bank shall promptly pay Customer the amount of each credit Entry returned by an RDFI that was transmitted by Bank pursuant to this Agreement.
Setoff Account and Right to Recover Funds for Settlement/Payment. 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 Customer identified hereto, and shall credit the Account for any amount received by Bank by reason of the return of an Entry transmitted by Bank for which Bank has previously received payment from Customer. Customer 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 available funds in the Account to cover Customer’s obligations under this Agreement, Customer agrees that Bank may debit any account maintained by Customer with Bank or any affiliate of Bank or that Bank may set off against any amount it owes to Customer, in order to obtain payment of Customer’s obligations under this Agreement.
Customer Reconcilement of Account. Entries transmitted by Bank or posted to a Receiver’s account maintained with Bank will be reflected on Customer’s periodic statement issued by Bank with respect to the Account pursuant to the agreement between Bank and Customer. In accordance with the Rules, Bank shall not be obligated to provide a separate notice to Customer of Bank’s acceptance of credit Entries designating Customer as beneficiary. Customer agrees to notify Bank promptly of any discrepancy between Customer’s records and the information shown on any periodic statement. If Customer fails to notify Bank of any discrepancy within thirty (30) days of receipt of a periodic statement containing such information, Customer agrees that Bank shall not be liable for any other losses resulting from Customer’s failure to give such notice or any loss of interest with respect to an Entry shown on such periodic statement. If Customer fails to notify Bank of any such discrepancy within thirty (30) days of receipt of such periodic statement, Customer shall be precluded from asserting such discrepancy against Bank.
Inconsistency of Name and Account Number. Customer acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted by Bank to the Receiving Depository Financial Institution may be made by the Receiving Depository Financial Institution (or by Bank in the case of an On-Us Entry) on the basis of the account number supplied by the Customer, even if it identifies a person different from the named Receiver, and that Customer’s obligation to pay the amount of the Entry to Bank is not excused in such circumstances.
Documentation. The Bank will provide User Documentation for the Services and the following Account documentation: (i) Bank will issue periodic statements electronically for the Customer's account that will reflect Entries credited to and debited from the Customer's account; and (ii) the Business Online Banking system will display a confirmation at the time Customer initiates ACH transactions, which confirmation should be printed and kept for Customer’s records.
Termination/Suspension by Bank. Customer may terminate this Agreement at any time, provided that such termination shall be effective sixty days (60) following the day of Bank’s receipt of written notice thereof or such later date as is specified in that notice. Bank reserves the right to terminate this Agreement immediately upon providing written notice of such termination to Customer. Any termination of this Agreement shall not affect any of Bank’s rights and Customer’s obligations with respect to Entries initiated by Customer prior to such termination, or the payment obligations of Customer with respect to services performed by Bank prior to termination, or any other obligations that survive termination of this Agreement. Bank may suspend the Customer from initiating Entries under this Agreement or terminate Customer for breach of the NACHA Rules at any time upon notice to the Customer.
SECTION III: WIRE TRANSFER SERVICES
The Wire Transfer service provides Customer with the capability to transfer funds from a specific Account at Bank to the Beneficiary Account, whether of Customer or a third party, via Business Online Banking. Customer acknowledges Bank is authorized to honor and execute all Payment Orders when made in accordance with the provisions of this Service Description.
Unless defined otherwise in this Service Description, all terms shall have the meaning set forth in New York Uniform Commercial Code (“UCC”) Article 4A and Subpart B of Federal Reserve Regulation J. A “Payment Order” is an instruction by Customer to the Bank that is transmitted electronically to pay, or to cause a Beneficiary Bank to make a payment to a Beneficiary Account. The “Beneficiary Account” is the account of the person Customer is paying. The “Beneficiary’s Bank” is the bank or other financial institution located in the United States where the Beneficiary Account is maintained. The Beneficiary Account may be held by the Customer or a third party and may be with the Bank or another financial institution. All Payment Orders must be initiated by an Authorized User. When used herein, the term “Payment Order” also refers to any amendment and/or cancellations of a Payment Order. A “Recurring Transfer” are Payment Orders made on a repetitive basis that involves the same Customer Account and Beneficiary Account.
Execution of Payment Order. By submitting a Payment Order, Customer authorizes Bank to withdraw the amount of the Payment Order, plus any applicable fees and charges, from Customer’s designated Account. Subject to the terms of this Agreement, Bank will accept and execute all Payment Orders that conform with the Security Procedure, Cut-Off times and other requirements as described herein. Bank is also authorized to act upon such other directions and Instructions relating to Payment Orders, including the cancellation or amendment of prior Payment Orders, as may be provided to Bank from time to time by an Authorized User.
Each Payment Order must contain all include the following information: (i) account number from which the funds are to be withdrawn, (ii) amount to be transferred, (iii) name and ABA routing number of the Beneficiary’s Bank, and (iv) Beneficiary Account name, address and account number of the payee. In the event a Payment Order describes an account number for the payee that is in a name other than the designated payee, Banks may execute the Payment Order to the account number so designated notwithstanding such inconsistency.
As may be applicable, this Service is subject to the provisions of all relevant regulations of the Board of Governors of the Federal Reserve System, and the operating circulars of the Federal Reserve Banks, and any other applicable provisions of state or federal law and banking regulations. You understand and agree that the Bank will not accept a Payment Order to a Beneficiary Account at a Beneficiary’s Bank located outside the United States.
Security Procedures. Customer agrees to comply with all Security Procedures for the Agreement and any additional Security Procedures that may apply to Wire Transfers. Customer agrees the Security Procedures used by Customer are commercially reasonable methods of providing security against unauthorized Payment Orders and related Instructions from Customer to Bank. Any Payment Order by Customer shall bind Customer, whether or not authorized, if transmitted in Customer’s name and accepted by Bank in compliance with the Security Procedures. Customer also agrees that any election Customer may make to change or refuse a Security Procedure is at Customer’s sole risk and any loss resulting in whole or in part from such change or refusal will be Customer’s sole responsibility.
Customer covenants that no employee or other individual will be allowed to initiate Payment Orders in the absence of proper authority, supervision and safeguards. Payment Orders will not be accepted or transmitted unless initiated by an Administrator or Authorized User under Security Procedures. Authority to initiate Payment Orders shall be conclusively presumed if the person initiating the Payment Order uses the Security Procedures applicable to Customer by its Administrator or Authorized User regardless of whether that person is in fact an Administrator or Authorized User.
Customer hereby acknowledges the Security Procedures are neither designed nor intended to detect errors in the content, or verify the contents, of a Payment Order. Customer errors include (but are not limited to) providing Bank with the wrong name and/or wrong account number of the Beneficiary Account; providing Bank with the wrong name and/or wrong account number of the Beneficiary’s Bank or Intermediary Bank (if applicable); providing Bank with an incorrect amount of a Payment Order; or instructing Bank to initiate the same Payment Order on multiple occasions. Accordingly, any errors contained in Payment Orders shall be Customer’s responsibility. Bank shall have no liability to Customer for Customer errors in Payment Orders and Customer shall be obligated to pay or repay (as the case may be) or can suffer a loss up to the full amount and/or charges for correcting or requesting a return of any such erroneous Payment Order.
The occurrence of unauthorized access will not affect any transfers made in good faith by Bank prior to receipt of such notification and within a reasonable time period thereafter. Following the receipt by Bank of a Payment Order, Bank reserves the right (but shall not be obligated) to attempt to further verify any such Payment Order by (i) a subsequent telephone call to an Authorized User or other representative, (ii) where there is more than one Authorized User, by calling an individual other than the Authorized User who initiated the Payment Order, or (iii) any other means Bank may deem appropriate. However, Bank's failure to further verify any such Payment Order by means of a return telephone call shall not be evidence of any failure on the part of Bank to act in good faith or in a commercially reasonable manner.
Rejection of Payment Orders. Bank reserves the right, in its sole discretion, to reject any Payment Order. Customer agrees Bank shall incur no liability whatsoever to Customer or any third party because of any such rejection. In the event Bank elects to reject a Payment Order, Bank shall notify Customer of the rejection orally, electronically or in writing. Bank shall be deemed to have rejected any Payment Order, and Customer waives notice of the rejection of such Payment Order, unless Customer has on deposit with Bank collected funds sufficient to cover the amount of the Payment Order on the execution date of the Payment Order.
Attempted Cancellation/Return or Amendment of Payment Orders. In the event Customer wishes to cancel or amend a Payment Order previously sent to or received by Bank, upon receipt of signed request, Bank shall use commercially reasonable efforts to effectuate Customer's wishes unless Bank in good faith believes such efforts to be futile. Bank makes no representations or warranties as to its ability to (a) cancel, return or amend a Payment Order previously received by Bank or (b) recover any funds already transferred. Bank shall have no liability to Customer for Bank’s failure to effectuate any requested amendment, return or cancellation of any Payment Order. Any request to cancel, return or amend any Payment Order must be given to Bank in writing and in sufficient time, as determined by Bank, to give Bank a reasonable opportunity to act on it before Bank executes the Customer’s Payment Order.
Cut-Off Time for Receipt of Payment Orders. Bank will execute all Instructions for Payment Orders on the Business Day received (or requested by Customer if future-dated) so long as the Domestic Payment Orders are received by Bank prior to the applicable Cut-Off Times and is in conformity with all Security Procedures. Bank reserves the right to reject a Payment Order request that cannot be properly authenticated via Security Procedure. Cut-Off Times may be established and changed by Bank from time to time. Instructions for Payment Orders received after such Cut-Off Times may be treated by Bank for all purposes as having been received on the following Business Day. Bank may handle Payment Orders received from Customer in any order convenient to Bank, regardless of the order in which they are received.
Payment Orders initiated and approved after the Cut-Off Time for domestic Payment Orders will be processed the next Business Day if that day is also a Business Day for Bank.
Reliance on Account Numbers and Bank Numbers. Customer acknowledges and agrees that, in accordance with Article 4A of the Uniform Commercial Code, Bank shall be entitled to rely upon the numbers supplied by Customer to identify banks, Beneficiaries and other parties to the Payment Order, even if those numbers disagree or are inconsistent with the names of those parties as provided by Customer. It is the sole and exclusive obligation of Customer to ensure the accuracy of such numbers. Bank shall have no obligation to confirm any such numbers provided by Customer.
Restricted Payment Orders. The Bank reserves the right in its sole discretion to delay or not accept Payment Orders (a) for any account of Customer, (b) to any Beneficiary Account located in certain foreign jurisdictions, (c) to Beneficiary Accounts listed on the Specially Designated National lists from FinCEN, or (d) for any other reason related to Executive Orders of the President, Foreign Governmental Embargoes Sanctions, or any Directives of Governmental Authorities. The Customer shall cooperate with any procedures related to such Payment Order. Customer is prohibited from sending and receiving illegal and restricted internet gambling transactions as defined in the Unlawful Internet Gambling Enforcement Act (Regulation GG). The Bank will not process payment orders that are illegal and restricted under Regulation GG.
Limitation of Liability. The Bank shall be responsible only for performing the funds transfer services described in this Agreement and shall be liable only for its own gross negligence or willful misconduct in performing these Services. The Bank shall not be liable for acts or omission by Customer or any other person or entity, including without limitation any funds transfer systems, any Federal Reserve Bank, any Beneficiary’s Bank and any Beneficiary, none of which shall be deemed the Bank’s agent. Without limitation, the Bank shall be excused from delaying or failing to act if caused by legal constraint, interruption of transmission or communication facilities, equipment failure, war, emergency conditions, strikes or other circumstances beyond the Bank’s control. In addition, the Bank shall be excused from delaying or failing to execute a funds transfer due to any changes in the rules, regulations and policies of the Federal Reserve Board that affect the Bank’s ability to send or receive funds at any time, for any reason, if the funds transfer would result in the Bank’s exceeding any limitation on its intra-day net funds position established through Federal Reserve guidelines or if the funds transfer would result in violating any present or future risk control program of the Federal Reserve or a rule or regulation of any other governmental regulatory authorities.
Except as otherwise required by applicable law, the Bank shall not be liable for any loss or liability arising from (a) any inaccuracy or failure to act on the part of any person not within the Bank's reasonable control, including but not limited to the failure of any other financial institution(s) to provide accurate or timely information to the Bank or the Customer, (b) the failure of other financial institutions to accept payment orders, (c) Customer's negligence, wrongful act or breach of this Agreement, or (d) any ambiguity or inaccuracy in any instruction given to the Bank by Customer.
IN NO EVENT SHALL THE BANK BE LIABLE FOR SPECIAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT LOSSES OR DAMAGES SUFFERED OR INCURRED BY CUSTOMER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM THE BANK’S ACTS OR OMISSIONS, REGARDLESS OF WHETHER THE BANK KNEW OR SHOULD HAVE KNOWN SUCH LOSSES OR DAMAGES MIGHT BE INCURRED. ANY LIABILITY OF THE BANK FOR LOSS OF INTEREST RESULTING FROM ITS ERROR OR DELAY SHALL BE CALCULATED USING A RATE EQUAL TO THE FEDERAL FUNDS RATE AT THE FEDERAL RESERVE BANK OF NEW YORK FOR THE PERIOD INVOLVED. PAYMENT WILL BE MADE BY CREDITING THE APPROPRIATE ACCOUNT AT THE BANK INVOLVED IN THE FUNDS TRANSFER. THE BANK SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S ATTORNEYS’ FEES.
Recovery Under Mistake and Restitution. Customer understands an error on the part of Bank may result in a third party receiving funds that it is not entitled to receive. In such case, Bank may elect to attempt to recover the funds under the laws governing mistake and restitution. In the event that Bank so elects, Customer agrees to reasonably cooperate with Bank and to provide Bank with any documents, information and other assistance as may be necessary to enable Bank to recover the funds.
Daily Funds Transfer Limit. Customer’s daily funds transfer account limit(s) will be in accordance with limit(s) set from time to time and provided to the Customer. In addition, Customer’s Administrator may set the limit for each Authorized User from time to time in Business Online Banking, which limit(s) may not exceed the Customer’s daily funds transfer account limit(s).
Funds Transfer Fees. Customer hereby authorizes Bank to debit its fees and charges for payment orders from Customer accounts, for all payment orders executed on behalf of Customer. Additionally, any fees or charges either now or hereafter imposed on Bank by the Federal Reserve or any other bank relating to the services provided by Bank to Customer shall be added to the fees charged by Bank effective the same day as such fees are imposed on Bank, or Beneficiary or Intermediary Bank fees such as Payment Order amendments, investigation, cancelation or return fees. A portion of those charges may be shared with us.