ADDENDUM TO ONLINE BANK AGREEMENT FOR CASH MANAGEMENT SERVICES- AUTOMATED CLEARING HOUSE ODFI ORIGINATOR AGREEMENT (S-1)

Transcription

1 ADDENDUM TO ONLINE BANK AGREEMENT FOR CASH MANAGEMENT SERVICES- AUTOMATED CLEARING HOUSE ODFI ORIGINATOR AGREEMENT (S-1) THIS AGREEMENT is made this day of,, by and between (the "Customer") and Israel Discount Bank of New York (the IDB Bank or Bank ). RECITALS A. The undersigned Customer has previously executed an Online Bank Agreement for Cash Management Services and related Addenda with the Bank dated (the Online Bank Agreement ), which allows Customer, through its officers and/or other employees designated therein (each an Authorized Representative ), to have access to information for and give instructions on its accounts with the Bank through the Internet. By requesting or using the Services, Customer agreed to be bound by the terms of the Online Bank Agreement, the Master Agreement for Cash Management Services as may be amended from time to time ( Master Agreement ) a copy of which Customer acknowledges receiving and the provisions of which are incorporated herein by reference. Customer now wishes to initiate credit and debit entries to/from Customer s demand deposit account(s) with Bank to/from accounts at their respective receiving banks transmitted to the Bank as per attached Schedule 1 and/or in instructions otherwise provided to Bank according to agreed upon security procedures. Customer agrees to do so pursuant to the terms of this Agreement and the New York Clearing Houses Association ( NYCHA ) and the ACH Rules of the National Association of Clearing Houses, as applicable (the "Rules"), as well as applicable laws and regulations of the United States, including but not limited to, economic sanctions administered by the U.S. Treasury Department s Office of Foreign Assets Control (OFAC), and the Bank is willing to act as an Originating Depository Financial Institution ( ODFI ) with respect to such entries. This Agreement, including but not limited to the attached Schedule, shall serve as an Addendum to and is subject to the terms and conditions of the Online Bank Agreement, the Master Agreement and any replacement thereof and is controlling to the extent that it is inconsistent in respect to the processing of ACH transactions. B. Unless otherwise defined herein, capitalized terms shall have the meanings provided in the Rules. The term "Entries" shall have the meaning provided in the Rules and shall also mean the data received from Customer hereunder from which Bank prepares Entries. AGREEMENT 1. Transmittal Of Entries By Customer. Customer shall transmit Credit/Debit Entries to Bank through the Internet to process such entries against Customer s account in compliance with the formatting and other requirements set forth in the attached Schedule #1 (Transmittal Format). 2. Credit Exposure Limits. The total dollar amount of Entries transmitted, frequency of origination and payment application (debits or credits) originated by Customer to Bank shall comply with limits set forth in the ACH User Setup of the Online Bank Agreement. In addition, Customer shall be liable for any amounts incurred in connection with the services provided under this Agreement. 3. Consumer Authorizations. The Customer will obtain written authorizations for consumer entries and shall retain the original or a microfilm record for two (2) years after termination or revocation of such authorization. i. For consumer transactions, Customer acknowledges that for any consumer payment received by check or other instrument constitutes authorization to convert it to an Accounts Receivable ( ARC ) Entry (if IDB Bank chooses to do so), unless we are notified in writing not to have such items converted to an ARC non check payment. 4. Prenotifications. a. The Customer will not send prenotifications unless it elects that option by initialing in (b) below. Notice of certain changes in the Entries to be processed is to be provided pursuant to Section 17 below;

2 b. Prenotification Option By initialing in this section (b), the Customer elects to send Prenotifications, when applicable, ten (10) Banking Days (as defined in the Rules) prior to the settlement date of the prenotification before initiating the first entry to a particular account. Such notice shall be provided to the Bank in the format and on the medium provided in the ACH Rules. After the Customer has received notice that any such notification has been rejected by a receiving financial institution, or that a receiving financial institution will not receive entries without having first received a copy of the authorization signed by its customer, the Customer will not initiate any entry to such customer, except the Customer may initiate entries after providing the receiving financial institution with such authorization, within the time limits provided by the Rules. Customer will provide to the Bank prior written notice pursuant to Section 17 hereunder, regarding certain changes to Entries. 5. Security Procedures. Customer and Bank shall comply with the security procedure requirements described in the Master Agreement, including but not limited to those regarding the use and securing of passwords, user ID s and other access controls set forth therein, which the parties hereto agree shall be a reasonable security procedure with respect to Entries transmitted by Customer to Bank under this Agreement. 6. Processing, Transmittal and Settlement By Bank. (a) Except as provided herein and in Section 7 below, Bank shall (i) process Entries received from Customer or the Third Party Processor that conform with the file specifications set forth in the Rules, (ii) transmit such Entries as an Originating Depository Financial Institution to the New York Clearing House Association (the "ACH Operator"), and (iii) settle for such Entries as provided in the Rules; i. (b) Bank shall transmit such Entries to the ACH Operator (by Transmittal Deadlines) prior to the Effective Entry Date shown in such Entries, provided (i) such Entries are received by Bank by at least 3 p.m., two (2) Banking days prior to Settlement Date for said Entries, (ii) the Effective Entry Date is at least 2 days after such Banking Day, and (iii) the ACH Operator is open for business on such business day; ii. (c) If any of the requirements of clause (i), (ii), or (iii) of Section 6(b) is not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next deposit deadline on which the ACH Operator is open for business; and iii. (d) Bank will not provide separate advices or notices of individual ACH transactions, which items will be reflected in the applicable periodic statement for Customer s impacted account. iv. (e) The Bank does not allow SEC codes TEL, WEB, IAT, TRC, TRX or XCK. 7. Rejection of Entries. Bank shall have the right to reject any entry which does not comply with the requirements of Section 1 or 2, or which contains an Effective Entry Date more than 2 Banking Days after the business day such Entry is received by Bank. Bank shall have the right to reject any Entry if Customer has failed to comply with its account balance obligations under Section 11, or if such entry is not in conformity with the Rules or any applicable laws or regulations. Bank shall notify Customer of such rejection no later than the business day such Entry would otherwise have been transmitted by Bank to the ACH Operator. Bank shall have no liability to Customer by reason of the rejection of any such Entry or the fact that such notice is not given at an earlier time than that provided for herein. 8. Cancellation Or Amendment By Customer. Customer shall have no right to the cancellation or amendment of any Entry after its receipt by Bank. However, Bank shall use reasonable efforts to act on a written and duly authorized request by Customer for cancellation of an Entry prior to transmitting it to the ACH Operator. 9. Notice of Returned Entries. Bank shall notify Customer of the receipt of a returned Entry from the ACH Operator no later than one Banking Day after the Banking Day of such receipt. 10. Payment. Customer shall pay Bank the amount of each Entry transmitted by Bank pursuant to this Agreement on either the settlement date with respect to such Entry or the date of transmittal by Bank of such Entry, as Bank, in

3 its discretion, may determine. The Bank is hereby authorized to debit such amount from the account designated on Schedule #1 and, if sufficient funds are not available for a debit, from any account with the Bank. 11. The Account. Bank may, without prior notice or demand, obtain payment of any amount due and payable to it under the Agreement by debiting the account(s) of Customer identified in the attached Schedule #1 (the "Account"), 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. Such credit shall be made as of the day of such receipt by Bank. 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. 12. Account Reconciliation. Entries transmitted by Bank or credited to a Receiver's account maintained with Bank will be reflected on Customer's periodic statement issued by the Bank with respect to the Account pursuant to the Agreement between the Bank and the Customer. Customer agrees to notify Bank promptly of any discrepancy between Customer's records and the information shown on any such periodic statement. If Customer fails to notify Bank within 14 days of receipt of a periodic statement, Customer agrees that Bank shall not be liable for any losses resulting from Customer's failure to give such notice. The Bank s liability is otherwise limited as provided under Section 14 below. 13. Bank Monitoring and Review, Audit. Customer acknowledges that Bank has a responsibility and reserves the right to monitor and review Customer s ACH originated activity for compliance with this Agreement, the ACH Rules and applicable laws, regulations and orders as well as for security, legal, fraud and any other legitimate purpose as permitted by law. Customer agrees to provide Bank with access to Customer s premises and records as well as any information reasonably requested in connection with any such review. 14. Customer Representations And Agreements; Indemnity. Customer acknowledges and agrees that a. each person shown as the Receiver on an Entry received by Bank from Customer has authorized the initiation of such Entry and the Crediting of its account in the amount and on the Effective Entry Date shown on such Entry and Bank may review a sample of such written authorization upon reasonable request, b. such authorization is operative at the time of transmittal or crediting by Bank as provided herein, c. Entries transmitted to Bank by Customer are limited to those types of Credit and/or Entries set forth in Section 1, d. Customer shall perform its obligations under this Agreement in accordance with all applicable laws and regulations, and e. Customer shall be bound by and comply with the Rules as in effect from time to time, including without limitation the provision thereof making payment of an Entry by the Receiving Depository Bank to the Receiver provisional until receipt by the Receiving Depository Bank of final settlement for such Entry; and specifically acknowledges that if such settlement is not received, the Receiving Depository Bank shall be entitled to a refund from the Receiver of the amount credited and Customer shall not be deemed to have paid the Receiver. Customer hereby agrees to indemnify Bank against any loss, liability, claims or expense (including attorneys' fees and expenses) resulting from any breach of any of the foregoing agreements or otherwise arising from the acceptance of any Entries for transmitting to the ACH Operator, that result in overdrafts or the like or for otherwise complying with instructions provided in connection with this Agreement. Customer further acknowledges and agrees that it will immediately notify the Bank in writing of the termination of any ACH authorizations it has received in connection with this Agreement.

4 f. The Customer agrees not to submit ACH payments for illegal gambling, illegal internet gambling or other illegal purpose. Display of a payment logo by, for example, an online merchant does not necessarily mean that transactions are lawful in all jurisdictions in which the customer may be located. Unlawful Internet gambling means to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made. The Bank reserves the right to deny transactions that may be restricted. 15. Liability; Limitations On Liability; Indemnity. a. Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its gross negligence in performing those services. Bank shall not be responsible for Customer's acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or due authorization of any Entry received from Customer) or those of any other person, including without limitation any Federal Reserve Bank or transmission or communications facility, any Receiver or Receiving Depository Bank, including without limitation the return of an Entry by such Receiver or Receiving Depository Banks, and no such person shall be deemed the Bank Institution's agent. Customer further hereby agrees to indemnify the Bank against any loss, liability or expense (including attorneys' fees and expenses) resulting from any claim of any person that Bank is responsible for, any act of omission of Customer or any other person described in this Section 14(a) (collectively with the obligations of Customer under Section 13 above, the Liabilities ). b. In no event shall Bank be liable for any consequential, special, punitive or indirect loss or damage which Customer may incur or suffer in connection with Agreement, including losses or damages from subsequent wrongful dishonor resulting from Bank's acts or omissions pursuant to this Agreement. c. Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission, or communication facilities, equipment failure, war, terrorist acts, emergency conditions or other circumstances beyond Bank's control. In addition, Bank shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in Bank's having exceeded any limitation upon its intra day net funds position established pursuant to Federal Reserve guidelines or in Bank's otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. d. Subject to the foregoing limitations, the Bank's liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of New York for the period involved. At Bank's option, payment of such interest may be made by crediting the Account resulting from any claim of any person that Bank is responsible for any act or omission of Customer or any other person described in Section 14(a). 16. Compliance With Security Procedure. a. If an Entry (or a request for cancellation or amendment of an Entry) received by Bank purports to have been transmitted or authorized by 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 Customer, provided Bank acted in compliance with the security procedure referenced in the Master Agreement. b. If an Entry received by Bank was transmitted or authorized by Customer, Customer shall be obligated to pay the amount of the Entry as provided herein, whether or not Bank complied with the security procedure referred to in the Master Agreement and whether or not that Entry was erroneous in any respect or that error would have been detected if Bank had complied with such procedure. 17. 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 to the Receiving

5 Depository Bank might be made by the Receiving Depository Bank or by Bank in the case of an On Us Entry (i.e., an entry in connection with an account domiciled at Bank) on the basis of the account number even if it identifies a person different from the named Receiver, and that Customer's obligation to pay the amount of the Entry to the Bank is not excused in such circumstances. 18. Notification of Changes. Bank shall notify Customer of all notifications of changes related to Entries transmitted by Customer in writing no later than two (2) Banking Days after receipt thereof. Customer shall notify Bank of any increase in the dollar value of Entries to be processed during any processing period that would exceed the approved credit Exposure Limit set forth on the ACH User Setup of the Online Bank Agreement (which shall be at least one processing period prior to the effective date of such increase), in order for the Bank to review such change for possible approval. 19. Payment for Services. Customer shall pay Bank the charges for the services provided for as set forth in the Master Agreement. 20. Amendments. From time to time Bank may amend any of the terms and conditions contained in this Agreement, including without limitation, any cut off time, fees, any Banking Day, and any part of Schedule #1 attached hereto. Such amendments shall become effective upon receipt of notice by Customer or such later date as may be stated in Bank s notice to Customer. 21. Notices, Instructions. a. Except as otherwise expressly provided herein, Bank shall not be required to act upon any notice or instruction received from Customer or any other person, or to provide any notice or advice to Customer or any other person with respect to any matter. b. Bank shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been signed by an Authorized Representative of Customer, and any such communication shall be deemed to have been signed by such person. Customer may add or delete any Authorized Representative by prior written notice to Bank signed by at least two Authorized Representatives other than that being added or deleted. Such notice shall be effective on the second Banking Day following the day of Bank's receipt thereof. c. Except as otherwise expressly provided herein, any written Agreement or notice shall be delivered, or sent to: if to the Bank addressed to: Israel Discount Bank of New York and, if to Customer, addressed to: 511 Fifth Avenue New York, NY Attn.: Attn.: Unless another address is substituted by notice delivered or sent as provided herein. Except as otherwise expressly provided herein, any such notice shall be deemed given when received. d. Bank shall not provide prior notice of receipt of any On Us Entries for credit to Customer s account. 22. Data Retention. Customer shall retain data on file adequate to permit remaking of Entries for 10 Banking Days following the date of their transmittal by Bank as provided here, and shall provide such Data to Bank upon its request.

6 23. Term and Termination: Bank may terminate this Agreement immediately by notice to Company, or without notice if Company breaches any of its obligations under this Agreement or the Rules. Company may terminate this Agreement at any time upon ten (10) business days prior notice to Bank. Termination shall not affect any of Bank's rights or Company's obligations under this agreement or related to Entries initiated by Company prior to such termination. 24. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. 25. Jury Waiver. It is understood and agreed that in the event of any litigation arising out of or relating to any matter contained herein or any other matter in which both of the undersigned entities shall be adverse parties, the parties hereto waive trial by jury and the right to interose any defense, set off or counterclaim of any nature or description. 26. Jurisdiction. The undersigned hereby consents to the in personam jurisdiction of the Courts of New York State and the United States District Court for the Southern District of New York, in connection with any claim arising with respect to this Agreement or any of the Liabilities. In the event any such action is commenced in any such court, service of process may be made on the undersigned by mailing a copy thereof to it at the address then reflected in the Bank's records by certified mail, return receipt requested. Such mailing shall be deemed personal service and shall be legal and binding upon the undersigned in any such action or claim. 27. Entire Agreement. This Agreement embodies the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous negotiations, representations, and agreements with respect hereto, and shall be binding upon the parties hereto, and their respective successors and assigns. This Agreement may be amended only by a writing signed by both parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers. ACCEPTED: Customer: Entity Name By: Name/Title: Date: By: Name/Title: Date: ISRAEL DISCOUNT BANK OF NEW YORK By: Name/Title: Date: By: Name/Title: Date: Individual Customer: X Print Name:

7 Schedule #1: Transmittal of Entries For Automated Clearing House (ACH) ODFI Originator Agreements with Israel Discount Bank of New York Customer Name File No. Bank procedures include the determination and review of certain exposure limits, which may include but are not limited to (a) the dollar amount of ACH files; (b) the frequency of origination of ACH files; and (c.) the consideration of the dollar amount of exposure over multiple settlement dates. The total dollar amount of Entries transmitted by Company to Bank with the same settlement date, whether initiated on any one day or over multiple days, should comply with the total dollar amount of exposure limits defined in the ACH User Setup of the Online Bank Agreement. I. Method of Entry Data Delivery to BANK: IDB Access Cash Management II. Company shall deliver Entry data to the following: Israel Discount Bank of New York ACCEPTED: Business Customer: Entity Name By: Name/Title: By: Name/Title: Date: ISRAEL DISCOUNT BANK OF NEW YORK By: Name/Title: Date: Time: Individual Customer: X Print Name: Date: