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1995-02 8 8 " Page -1- of ~ Pages ACH AGREEMENT This Agreement ("Agreementï by and between the undersigned company ("CompanYÎ and the undersign'ed bank ("BankÎ is effective on the date of acceptance by Bank. RECITALS . Company wishes to initiate Credit and/or Debit Entries pursuant to the terms of this Agreement and the Operating Rules and Operating Guidelines that have been adopted by the National Automated Clearing House Association ('NACHAÎ and the Florida Payment Systems Inc. ("FPSIï (together with any amendments or revisions thereto, hereinafter collectively called "Rules"), and Bank is willing to act as an Originating depository Financial Institution ("ODF!Î with respect to such Entries. A. 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 also shall mean the data received from Company hereunder from which Bank prepares Entries. AGREEMENT TRANSMITTAL OF ENTRIES BY COMPANY. Company shall deliver or transmit Entries to Bank to . be processed in accordance with the provisions of Exhibit A and Exhibit B, attached hereto and incorporated herein by this reference. SECURITY PROCEDURE. Company'and Bank shall comply with the security procedure requirements described in Exhibit B with respect to Entries transmitted by Company to Bank. 1. 2. 3. 4. PROCESSING. TRANSMITTAL AND SETTLEMENT BY BANK. (a) "Effective Entry Date" means a date specified in an Entry on which the originating Company instructs that the payment is to be made. Except as provided in section 4 and 5, Bank shall (i) process Entries received from Company to conform with the file specifications set forth in the Rules, (ii) process and/or transmit such Entries as an ODFI to a receiving account or ACH Processor for further processing and (iii) settle for such Entries as provided in the Rules. (b) (c) Bank shall transmit any Entries requiring further processing to the ACH Processor by the deadline of the ACH Processor prior to the Effective Entry Date shown in such Entries, provided (i) such Entries are received before Bank's related cut-off time, and (ii) the Effective Entry Date follows receipt by Bank of such Entries by at least the number of days required in the Operating Instructions. Bank will provide Company with cut-off deadlines which may be amended from time to time. Entries shall be deemed received by Bank when Company has complied with the Operating Instructions for delivery of Entries and all security procedures in Exhibit B. If one of the requirements of clause (i) or (ii) of Section 3(c) is not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Processor by the next deposit deadline of the ACH Processor. (d) ON-US ENTRIES. Except as provided in Section 5, in the case of any Entry received for crediVdebit to an account'maintained with Bank (an "On-Us EntryÎ, Bank shall crediVdebit 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) of Section 3(c) are met. If one of those requirements is not met, Bank shall use reasonable efforts to credit/debit the Receiver's account for the Entry on the next business day following such Effective Entry Date. For purposes of this Agreement, a "business day" is Monday through Friday excluding Bank holidays. / \~~ ~'V ~ IP 586 (Rev. 6/91) mw 8 8 t, Page -Z... of -L. Pages 5. REJECTION OF ENTRIES. Bank shall reject any Entry that does not comply with the requirements of Section 1 or 2, or that contains an Effective Entry Date more than fourteen (14) days after the business day such Entry is received by Bank. Bank shall notify Company by phone of such rejection no later than the business day such Entry would otherwise have been transmitted by Bank to the ACH Processor or, in the case of an On-Us Entry, its Effective Entry Date. CANCELLATION BY COMPANY. Bank shall use reasonable efforts to act on a request by Company for cancellation of an Entry if such request is made prior to transmitting the Entry to the ACH Processor or, in the case of an On-Us Entry, prior to crediting/debiting a Receiver's accoul1t, provided such request is received by Bank at a time and in a manner affording Bank a reasonable opportunity to act on the request and provided the request complies with the security procedures for cancellation set forth in Exhibit B, but . Bank shall have no liability if such cancellation is not effected. 6. 7. NOTICE OF RETURNED ENTRIES. Bank shall promptly notify Company by mail or by electronic access of the receipt of a returned entry from the ACH Processor. Except for any entry retransmitted by Company in accordance with requirements of Section 1, Bank shall have no obligation to retransmit a retumed Entry to the ACH processor if Bank complied with the terms of this Agreement with respect to the original Entry. PAYMENT. Company shall pay Bank the amount of each originated credit Entry and Bank shall pay Company the amount of each originated debit Entry transmitted by Bank pursuant to this Agreement at such time on the Effective Entry Date as Bank, in its discretion, may determine. 8. 9. THE ACCOUNT. Bank may, without notice or demand, obtain payment of any amount due and payable to it under this Agreement by debiting the account(s) of Company identified in exhibit A attached hereto (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 Company. Such credit shall be made as of the day of such receipt by Bank. Company shall at all times maintain a balance of collected funds in the Account sufficient to cover its payment obligations under this Agreement. In the event there are not sufficient collected 'unds in the Account to cover Company's obligations under this Agreement, Company agrees that Bank may, in its discretion, reverse all Entries, refuse to process Entries, require Company to deposit additional funds before the Entries are processed. and/or debit or place a hold on funds in any account maintained by Company with Bank or any Affiliate of Bank and that Bank may set off against any amount it owes to Company, in order to obtain payment of Company's obligations under this Agreement. "Affiliate of Bank" means SunTrust Banks, Inc. and any member of its "affiliated group", as that term is defined in section 1504(a) of the Internal Revenue Code of 1986, as amended. 10. ACCOUNT RECONCILIATION: DUTY TO REPORT DISCREPANCIES. Entries debited or credited to Company's Account maintained with Bank will be reflected on Company's periodic statement issued by Bank with respect to the Account. Not more than 14 days after the mailing or delivery of such periodic statement, Company will cause it to be examined and will immediately notify Bank of any discrepancy or error therein. Failure of Company to notify Bank of any discrepancy within that time will relieve Bank of any interest liability with respect to the Entry. Failure of Company to notify Bank of any discrepancies within ninety (90) days of the mailing or delivery of such periodic statement shall relieve Bank of any liability for any Entries reflected in the statement. 11. COMPANY REPRESENTATIONS AND AGREEMENTS: NOTICE OF PROVISIONAL PAYMENT. Company represents to Bank that (a) each person shown as the Receiver on an Entry has authorized the Entry prior to its submission to Bank and such authorization is and shall remain in effect until the Receiver's account is debited or credited, and (b) each Entry transmitted to Bank conforms to Company's obligations under this Agreement, the Rules, the Operating Instructions, and all applicable laws and regulations. Company agrees to be bound by the Rules as In effect from time to time, including without limitation the provision thereof making payment of an Entry by the Receiving Depository Financial Institution ("RDFlj to the Receiver provisional until receipt by the RDFI of Final Settlement for such Entry; and specifically acknowled~es that it has received notice of that Rule and of the fact that. if such settlement IS not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Company shall not be deemed to have paid the Receiver the amount of the Entry. "Final Settlement" wIth respect to any Entry shall be the day upon which such Entry is posted to the account of RDFI by Bank or a Federal Reserve Bank in accordance with the Rules. Such Entry may also be made by Bank as originator for direct Bank affiliate Entries. 8 8 ,. Page --L of -L Pages 12. LIABILITY: LIMITATION OF LIABILITY. (a) Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall not be liable, except as provided by applicable law, for any error or delay so long as Bank has acted in accordance with the terms and conditions hereof. Without limiting the foregoing, Bank shall not be liable for any decision to reject Entries or not to process Entries for the reasons provided herein, or if Company is in breach of any obligations hereunder; if Bank reasonably believes or has actual notice of commencement of bankruptcy or similar proceedings against Company; or If such processing involves funds, the ownership of which or the right to make withdrawals consisting of is subject to dispute. To the extent provided for herein, Bank shall not be liable if Company fails to report any error or discrepancy reflected in a periodic statement or if Company fails to report a breach of confidentiality of security procedures. Bank shall not be liable to the extent Company receives the benefit of any Entry, even if such Entry is otherwise erroneous. No Agency. Bank shall not be responsible for acts or omissions of any third party, including without limitation any Federal Reserve Bank, courier service, FPSI, NACHA, any transmission or communications facility, or any other party involved with processing of the Entry, any Rèceiver or RDFI (including without limitation the return of an Entry by such Receiver or RDFI), and no such third party shall be deemed Bank's agent. (b) (c) Company'. Agent.. In the event Company authorizes any third party, such as a payroll processing service, to perform obligations of or services to Company hereunder, Bank shall have no additional liability to Company occasioned by said agency so long as Bank acted in accordance with instructions hereunder. Company agrees to assume responsibility for any errors or wrongdoing by such third party or any of its employees. Compensation. Subject to the foregoing limitations, any damages or other compensation due Company resulting from Bank's performance hereunder shall be limited to interest on the funds at issue at the "federal funds rateW paid by Bank at the close of business on each day the error or delay remains uncorrected; provided, ~owever, that if Bank is unable to recover funds from a Receiver who has no claim to all or any part of the funds at Issue as a result of Bank's negligence, Bank shall be liable for Company's actual loss, not to exceed the amount of funds that Bank is unable to recover, plus interest. In no event shall Bank be liable to Company for indirect, consequential, special, punitive or exemplary damages. ,(d) 13. INDEMNIFICATION, In consideration for Bank's making available to Company the services hereunder, Company agrees to indemnify and hold Bank harmless from and against all damages, costs and expenses (including reasonable attorneys' fees and costs of investigation) arising from or in any manner related to (i) Entries processed or related actions taken by Bank in accordance with instructions provided by Company, including but not limited to, actions taken by Bank to cancel Entries; (ii) any decision by Bank not to effect a transfer for any specified reason herein; (iii) a breach of Company's representations under Section 11 hereof; or (iv) a circumstance that would relieve Bank of liability to Company pursuant to Sections 10 or 12 hereof; (v) acts or omissions of Company's agents; (vi) or otherwise, so long as Bank acts in compliance with this Agreement. COMPLIANCE WITH SECURITY PROCEDURES. The authorizations in Exhibit A and security procedures in Exhibit B shall apply equally to Entries and requests for cancellation or amendment of Entries. Accordingly, in this Section 14, "EntryW shall be construed to include requests for cancellation or amendment of Entries. 14. (a) If an Entry received by Bank was transmitted or authorized by Company, or if an Entry received by Bank purports to have been transmitted or authorized by Company and Bank has complied with the security procedures provided for herein, then, in either case, it will be deemed effective as Company's Entry. If signature comparison is to be used as part of that security procedure, Bank shall be deemed to have complied with that part of such procedure if the signature accompanying a file of Entries bears any resemblance whatsoever to the signature of the Company's authorized repr~sentative for submission of Entries. ' (b) Company is responsible for maintaining the confidentiality of the security procedures hereunder and shall promptly report to Bank any breach thereof. Bank shall have no liability for losses occasioned by Company's failure to maintain the confidentiality of its security procedures. Bank may change, add or delete any procedures established pursuant to this Agreement, from time to time, upon notice to Company. (c) 8 8 ,. Page -A- of -L Pages 15. VERIFICATION, Bank shall be entitled, at its sole discretion, to seek verification or authentication of any file of Entries by contacting Company by telephone or by any other means set forth in any regulations or publications made available to Company or otherwise deemed reasonable by Bank; Drovided, however. that so long as Bank complies with the security procedures in Exhibit B hereof, Bank shall have no obligation to seek verification or authentication. If Bank is unable to obtain any verification or authentication sought by it, Bank may, in its sole discretion, either effect or refuse to effect the Entries. 16. INCONSISTENCY OF NAME AND ACCOUNT NUMBER, Company acknowledges and agrees that if an Entry describes the Receiver, RDFI, or any Intermediary Bank inconsistently by name and number, (account number in Receiver's case; bank number in bank's case), payment might be made by the Intermediary or RDFI on the basis of the number even if it identifies a person or bank, as the case may be, 0 different from the named Receiver or bank, and that Company's obligation to pay the amount of the Entry to Bank is not excused in such circumstances. 17. NOTIFICATIONS OF CHANGE. Bank will make every reasonable attempt to notify Company of all notifications of change received by Bank relating to Entries originated by Company by mail no later than one business day after receipt thereof. PA YMENT FOR SERVICES. Company shall pay Bank the charges for the services provided for herein in accordance with Bank's price schedule for such services, as it may be modified from time to time. 18. 19. AMENDMENTS, From time to time Bank may amend any of the terms and conditions contained in this Agreement, including without limitation, any part of the Exhibits attached hereto, Such amendments shall become effective upon receipt of notice by Company or such later date as may be stated in Bank's notice to Company. Any use of services provided hereunder after the date Company receives notice of amendment shall constitute acceptance of the terms of said amendment. Company may add or delete instructions and . authorizations provided on Exhibits by submitting amended Exhibits properly signed by authorized Company representatives. Such amendments shall be effective after Bank has received and had a reasonable opportunity to act upon the~. NOTICES. Except as otherwise expressly provided herein, any written notice or other written communication required or permitted to be given under this Agreement shall be delivered, or sent by United States registered or certified mail, postage prepaid, addressed to the other party at the address indicated herein, or such other address as designated in writing by the receiving party. As to Bank, all notices and communications shall be addressed to the Bank's Account officer assigned to Company. 20. 21. DATA RETENTION. Company shall retain data on file adequate to permit remaking of Entries for three business days after midnight of the Effective Entry Date, and shall provide such data to Bank upon its request. 22. TERMINATION. Either party may terminate this Agreement by thirty (30) days prior written notice. Bank may terminate this Agreement immediately upon written notice to Company if Company fails to comply with its obligations hereunder. Termination of this Agreement shall in no way affect the obligations of a party hereto which were incurred prior to the termination. 23. ENTIRE AGREEMENT. This Agreement (including the Exhibits attached hereto), together with the Account Agreement, is the complete and exclusive statement of the agreement between Bank and Company with respect to the subject matter hereof and supersedes any prior agreements between Bank and Company with respect to such subject matter. In the event of any inconsistency between the terms of this Agreement and the Account Agreement. the terms of this Agreement shall govern. NON-ASSIGNMENT. Company may not assign this Agreement or any of the rights or duties hereunder to any third party without Bank's prior written consent. 24. 25. BINDING AGREEMENT: BENEFIT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. This Agreement is not for the benefit of any third party, and no third party shall have any right against Bank or Company hereunder. FORCE MAJEURE. Bank shall not be responsible for any loss, damage, liability or claim arising, directly or indirectly, from any error, delay or failure in performance of any of its obligations hereunder which is caused by fire or other natural disaster, strike, civil unrest, any inoperability of communications facilities or any other circumstances beyond the reasonable control of Bank. 26. 8 8 ,. Page -L of ~ Pages 27. HEADINGS. Headings are used for reference purposes only and shall not be deemed a part of this Agreement. 28. SEVERABILITY. In the event performance of the services provided herein in accordance with the terms of this Agreement would result in a violation of any present or future Rules, statute, regulation, or government policy to which Bank is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Company as a result of such violation or amendment. 29. SURVIVAL. The terms, provisions, representations and warranties contained in this Agreement which by . their sense and context are intended to survive the performance hereunder shall so survive the completion of performan~e and termination of this Agreement. GOVERNING LAW. This Agreement is subject to the provisions of all applicable Federal law. Except as so provided, this Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, and by the Rules and choice of law state adopted by NACHA and FPSJ. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their duly authorized officers. 30. Executed By City of Clermont ~: ~n--< Name: Robert A. Pool Mayor Title: Address: P.O. Box 120219 Clermont, FL 34712-0219 Received Bv Bank Name By: Name: Title: Address: Date: - 8 8' . - . ~ ,. EXHIBIT A to ACH AGREEMENT (ACCOUNT INFORMATION/AUTHORIZED REPRESENTATIVEsm-tIRD PARTY PROCESSING) The following corporate data base information is required for ACH account and user setup in accordance with the ACH Agreement between Company and Bank. Phone Number: Citv of Clermont P.O. Box 120219 Clermont, FL 34712-0219 (904) 394-4081 Company Name: Company Address: Account Number: The Authorized Representatives listed below are empowered to submit, and/or make corrections to monetary ACH ENTRIES IN ACCORDANCE WITH BANK INSTRUCTION. This list SUPERSEDES all previously submitted authorized representative documentation. CURRENT USERS NOT ON THIS LIST WILL BE DELETED. A new listing must be submitted by the Company whenever Authorized Representatives are added or deleted. Exhibit A must be used to request any Authorized Representative change. Letters are not acceptable. AUTHORIZED REPRESENTATIVE NAME(S} (List in calling prionty order> AUTHORIZED REPRESENTATIVE SIGNATURElS} \ (WorX Phone ,> (After Hours Phone ,> (War\( Phone ,> (After Hours Phone ,> (WorK Phone ,> (After Hours Phone ,> If Company elects THIRD PARTY PROCESSING COMPlETE THE FOllOWING: Company requests that Bank accept ACH credit and debit Entries from Company's third party vendor (*Vendor*). In accordance with the ACH Agreement, Company assumes all responsibility for Vendor's acts or omissions. This provisIon Is not bIndIng on Bank until Bank notIfIes Company that Vendor Is acceptable to Bank. Vendor Name Vendor Address Company Name: By: . Authorized Signature: Trtle: Date: . Must be signed by person authorized to execute the ACH Agreement. IP-S12