ACH Terms of Service

Please note that these terms do not replace those terms found in your PaymentVision TOS and PaymentVision Service Order.  If a conflict arises between the terms of the PaymentVision TOS and the ACH TOS, the terms of the ACH TOS shall apply as related to ACH transactions.   If a conflict arises between those terms found in this ACH TOS and your PaymentVision Service Order, the terms of the Service Order shall apply.

THIRD-PARTY BENEFICIARIES

The term Financial Institution as used in this ACH Agreement Terms and Conditions (“Agreement”) refers to collectively to any bank, or Service Provider with which Autoscribe Corporation, dba Payment Vision (hereinafter “ACH PROCESSOR”) has an Agreement. Therefore, Client and ACH PROCESSOR acknowledge that such Financial Institution is an express and intended third-party beneficiary to this Agreement and has all the rights under this Agreement as if it were a party thereto, including, without limitation, the right to enforce any terms of the Agreement or assert claims against Client for breach of the Agreement.

AUTHORIZATION

As a duly authorized representative for the Client named above, I authorize the account designated by Client to be debited and/or credited by ACH PROCESSOR according to the terms of this Agreement. I further authorize ACH PROCESSOR to process electronic funds transfers through the account listed within this Application/Agreement. This authorization is also applicable for any new account information provided by Client at a future date. I agree to be bound by the ACH Agreement Terms and Conditions as stated elsewhere in this Agreement. Client agrees to provide new account information to ACH PROCESSOR at least 10 days prior to closing or changing the above account. This authorization shall continue in perpetuity until all obligations to ACH PROCESSOR are met and the authorization shall survive termination of this Agreement.

CANCELLATION

ACH PROCESSOR may immediately cancel this Agreement and suspend all processing of originations, without advance notice, upon the request of an Originating Depository Financial Institution (“ODFI”) or any applicable Federal, state or banking regulatory authority (“Agency”) for any reason, or if ACH PROCESSOR reasonably believes that Client is violating or has previously violated any applicable Federal, state or local laws or regulations governing ACH transactions (collectively, “Regulations”), or the Operating Rules or Guidelines (“Rules”) of the National Automated Clearing House Association (“NACHA”).

ACH PROCESSING

ACH PROCESSOR and Client have contracted for ACH PROCESSOR to provide Automated Clearing House (“ACH”) services as a Third Party Processor of ACH transactions. These transactions will be placed through a financial institution used by ACH PROCESSOR who will be acting as the ODFI. Client shall act as the Originator. ACH PROCESSOR will debit funds (“Debit Entry”) for the purpose of collecting Automatic Payments from the accounts of the Client’s customers (“Receivers”) and/or credit funds (“Credit Entry”) for the purpose of paying the Client’s accounts receivable in accordance with the terms of this Agreement, Rules, and applicable Regulations governing ACH transactions.  The terms and conditions of this Agreement do not limit Client’s obligation to comply with the Rules and Regulations. “Entry” or “Entries” shall mean either a Credit Entry or a Debit Entry.

AUTHENTICATION

Client agrees that ACH PROCESSOR may adjust processing fees and/or add authentication services without notice if Client experiences a return rate outside the standard return rates for Client’s industry (as determined solely by ACH PROCESSOR) or if ACH PROCESSOR deems the authentication process employed by Client is not adequate based upon standards determined by ACH PROCESSOR. ACH PROCESSOR, at its sole and absolute discretion, will determine the standards of authentication and the rate of return acceptable for Client.

REPRESENTATIONS REGARDING AUTHORIZATION

Client warrants that for each such ACH Entry submitted for processing, Client has obtained all authorizations as required by the Rules, by Regulation E or other applicable law, and this Agreement.   Client will maintain copies of the authorizations for a period of two years from the date the record was created.

Client represents and warrants with respect to all Entries originated by Client and processed by ACH PROCESSOR for the Client that (1) each Receiver has authorized the debiting and/or crediting of its account, (2) each Entry is for an amount agreed to by the Receiver, and (3) each Entry is in all other respects properly authorized. Client agrees to indemnify ACH PROCESSOR, including its directors, officers, employees and affiliates, for any claims, demands, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of these representations and warranties. These representations and warranties by Client and its indemnity obligation hereunder shall survive termination of the Agreement.

SELECTED STANDARD ENTRY CLASSES.
At any time, the only SEC codes that Client is able to process under are as follows:
__X__ CCD Corporate Credit or Debit Entry
__X__ PPD Prearranged Payment and Deposit Entry
__X__ TEL Telephone-Initiated Entry
__X__ WEB Internet-Initiated Exchange

ACTION BY CLIENT EMPLOYEES AND ADMINISTRATORS

Client acknowledges that the actions of its officers, directors, employees, affiliates, agents, administrators, consultants or independent contractors (“Client Administrator”) will be deemed actions by Client hereunder, and Client accepts full responsibility and liability for such acts and/or omissions of said Client Administrator.

IDENTIFYING NUMBERS

Client understands that ACH PROCESSOR may rely solely on identifying numbers provided by the Client to determine the bank and account of a Receiver even if the numbers identify a bank or account holder different from the one identified by the Client by name. Client will indemnify ACH PROCESSOR, including its directors, officers, employees and affiliates, for any claims, demands, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) as a result of an incorrect account or other identification. Client’s indemnity obligation hereunder shall survive termination of the Agreement.

REGULATORY COMPLIANCE

Client bears the final responsibility to insure that the Client’s policies and procedures meet the requirements of the Rules and all applicable Regulations. Client is encouraged to consult counsel regarding compliance with the Rules and Regulations whenever there is any doubt about compliance. Client represents and warrants that all Entries originated by Client and processed by ACH PROCESSOR for the Client comply with all applicable Rules and Regulations, including without limitation the following Regulations: 1) FTC Act (15 U.S.C. §§ 41, et seq.); 2) TSR (16 C.F.R. 310, et seq.); 3) Electronic Fund Transfer Act (15 U.S.C. §§ 1601, et seq.) and Regulation E (12 C.F.R 205, et seq.), if applicable; 4) Uniform Commercial Code Article 4-A, if applicable; 5) Federal Reserve Board Regulation J, if applicable; 6) the rules and sanctions laws of the Office of Foreign Assets and Control (“OFAC”); 7) Unlawful Internet Gambling Enforcement Act (31 U.S.C. §§ 5361, et seq.) and accompanying regulations (12 C.F.R. 233; 31 C.F.R. 132); 8) PACT Act (15 U.S.C. §§ 376, et seq., Jenkins Act (15 U.S.C. §§ 375, et seq. and accompanying regulations; 9) Title X of the Dodd-Frank Act and accompanying regulations; and (10) all applicable state laws and regulations. Client further represents and warrants that it shall not originate any Entries that constitute (i) improper telemarketing in violation of the TSR or other applicable Rules or Regulations; (ii) sales or marketing of advance-fee credit cards in violation of the TSR or other applicable Rules or Regulations; (iii) restricted Internet gambling transactions; (iv) unlawful Internet tobacco sales; and/or (v.) that violate or are alleged to violate any Rule, Regulation or Financial Institution or Agency requirement. Client represents and warrants that it will not transmit any entries that violate the laws of the United States or any other applicable Rule or Regulations. These representations and warranties by Client shall survive termination of this Agreement. Client will indemnify ACH PROCESSOR, including its directors, officers, employees and affiliates, for any claims, demands, losses, liabilities, costs, fines or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of these representations and warranties or failure to comply with any applicable Rule, Regulation or Financial Institution or Agency requirement. Client’s indemnity obligation survives termination of this Agreement. With limiting any of its other rights under this Agreement, ACH PROCESSOR may immediately cancel this Agreement if ACH PROCESSOR reasonably believes that Client is violating or has previously violated any applicable Rule or Regulation or is in breach of these representations and warranties.

TAX REPORTING

Client shall provide to ACH PROCESSOR its correct and accurate tax-filing name and tax identification number (“TIN”) for the U.S. Internal Revenue Service (“IRS”). Client bears all liability and agrees to indemnify, defend and hold harmless ACH PROCESSOR and its Financial Institution, including all of their respective directors, officers, employees and affiliates, from any and all claims, demands, liabilities, losses, damages, fines, costs or other expenses (including attorneys’ fees and costs) suffered or incurred arising out of, relating to or involving in any way Client’s failure to provide an accurate tax filing name or tax identification number.

Client acknowledges that, pursuant to Section 6050W of the Internal Revenue Code, ACH PROCESSOR is responsible for filing with the IRS annual information returns for all reportable payment transactions to Client for whom ACH PROCESSOR processes transactions under this Agreement. Client shall cooperate with ACH PROCESSOR and take all reasonable steps to aid its reporting obligations and compliance with Section 6050W, including, but not limited to, provide an accurate and verifiable tax filing name and TIN for each Client account.

Client further acknowledges and agrees that if it fails to provide an accurate tax filing name or TIN information, the IRS notifies ACH PROCESSOR of a discrepancy between the information provided by Client and the IRS records, or if requested by the IRS for any reason, ACH PROCESSOR shall be required to perform backup withholding from Client funding by deducting and withholding income tax in an amount based on the IRS withholding regulations at the time withholding is required from the gross amount of each reportable transaction pursuant to Section 6050W and its corresponding regulations. Client expressly authorizes ACH PROCESSOR to withhold from Client’s funding or debit Client’s Settlement Account (or another account designated by Client if there are insufficient funds in the Settlement Account to cover the required withholding) for any and all backup withholding amounts required by Section 6050W and its corresponding regulations.

RECORDKEEPING REQUIREMENTS

Client shall keep, for a period of 2 years from the date the record is produced, all records of verifiable consumer authorizations. Client further agrees to retain all documentary evidence that proves it is compliant with all applicable Rules, Regulations and Financial Institution and Agency requirements to the satisfaction of the Financial Institution, NACHA, FTC, any state Attorneys General, or any applicable Agency or government authority for a period of no less than three (3) years, or as otherwise required by any Rules, Regulation or Financial Institution or Agency requirements. Client agrees to provide copies of such documents or records to ACH PROCESSOR immediately upon written request from ACH PROCESSOR.

NOTICE OF ERRONEOUS UNAUTHORIZED TRANSFERS

Client agrees to promptly and regularly review all Entries and other communication received from ACH PROCESSOR and to immediately notify ACH PROCESSOR if there are any discrepancies between Client’s records and those provided by ACH PROCESSOR, the ODFI or Client’s bank, or with respect to any transfer not authorized by Client. If Client fails to notify ACH PROCESSOR within 7 days of the date ACH PROCESSOR mails or otherwise provides a statement of account or other report of activity to Client, then the Client will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer.

REPRESENTATIONS AND WARRANTIES OF CLIENT

In addition to all other representations and warranties made in this Agreement, Client represents and warrants the following to ACH PROCESSOR and the Financial Institution; now and as of the time it initiates each Entry:

  1. As to each Credit Entry submitted by Client: (a) Each person shown as the Receiver on an Entry received by ACH PROCESSOR from Client 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; (b) Such authorization is operative at the time of transmittal or crediting by ACH PROCESSOR as provided herein; (c) Entries transmitted to ACH PROCESSOR by Client are limited to those types of credit Entries set forth on the Application and in the Guidelines; (d) The Entry is timely; (e) The Entry is in conformity with the Rules, Regulations and all Financial Institution, ODFI and Agency requirements; (f) That, at the time the Entry is transmitted to the ACH Network by ACH PROCESSOR, Client does not have actual knowledge of the revocation or termination of the authorization by the Receiver; (g) That the Receiver’s authorization is neither inoperative nor ineffective by operation of law, nor has it been terminated by operation of law; (h) That Client has provided all written disclosures required by the Rules, Regulations and all Financial Institution, ODFI or Agency requirements to all consumers on whose behalf ACH PROCESSOR performs any Service; (i) Client will comply with all provisions of the Rules, Regulations and all Financial Institution, ODFI and Agency requirements applicable to the services provided  under this Agreement to Client; and (j) Client acknowledges and agrees that all Entries originated   as part of a service shall comply with all Regulations, including but not limited to, any economic sanctions administered by the S. Treasury Department’s Office of Foreign Assets Control (OFAC) and shall not act on behalf of, or transmit funds to or from, any party subject to such sanctions.
  2. As to each Debit Entry submitted by Client: (a) The Entry is for a sum due and owing to Client from a Customer or for a sum specified by a Customer to be paid to Client; (b) The Entry is timely; (c) The Entry is forwarded in accordance with an authorization executed by the Receiver and held by the Client; (d) The Entry is in conformity with the Rules, Regulations and all Financial Institution, ODFI and Agency requirements; (e) That, at the time the Entry is transmitted to the ACH Network by ACH PROCESSOR, Client does not have actual knowledge of the revocation or termination of the authorization by the Receiver; (f) That the Receiver’s authorization is neither inoperative nor ineffective by operation of law, nor has it been terminated by operation of law; (g) The Entry is of a type of debit Entry specified in the Application and the Guidelines; (h) The Client has complied with the Rules, Regulations and all Financial Institution, ODFI and Agency requirements pertaining to the Entry; (i) Client shall be bound by and comply with the Rules as in effect from time to time, including, without limitation, the provision making payment of an Entry by the RDFI of final settlement for such Entry; and Client specifically acknowledges that it has received notice of the Rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Client shall not be deemed to have paid the Receiver the amount of the Entry; (j) Client will comply with all provisions of the Rules, Regulations and all Financial Institution, ODFI and Agency requirements applicable to the services provided to Client under this Agreement; and (k) Client acknowledges and agrees that all Entries originated as part of a service shall comply with all Regulations, including but not limited to, any economic sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) and shall not act on behalf of, or transmit funds to or from, any party subject to such
  3. Client, including its subsidiaries, predecessors, principals, officers or managing members, has complied with and shall remain in compliance with all Rules, Regulations, Financial Institution, ODFI and Agency requirements (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges there under) of all Federal, state, local and foreign governments and all Agencies thereof, and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against any of them alleging any failure to Client further represents and warrants that it shall not originate any Entries that constitute (i) improper outbound telemarketing in violation of the TSR or other applicable Regulations or Rules; (ii) sales or marketing of advance-fee credit cards in violation of the TSR or other applicable Regulations or Rules; (iii) restricted Internet gambling transactions; and/or (iv) unlawful Internet or other remote tobacco sales.
  4. Client is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its
  5. Client has full power and authority to execute and deliver this Agreement and to perform its obligations This Agreement constitutes valid and legally binding obligations of Client and is enforceable in accordance with its terms and conditions.
  6. Neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government Agency, or court to which Client is subject or any charter of Client, or conflict with or create any right to accelerate, terminate, modify, or cancel or require any notice under any other agreement, or other arrangement to which Client is a party or by which either is
  7. Client has provided to ACH PROCESSOR a copy of any and all government or Agency inquiries or complaints regarding Client or any of its subsidiaries, predecessors, principals, officers or managing
  8. The information, authorizations, documents, reports, financial statements, and other documentation provided by Client pursuant to this Agreement are correct, accurate, and complete and do not contain any untrue or misleading statement or Client acknowledges receiving notice of the NACHA Rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and neither ACH PROCESSOR nor ODFI shall be deemed to have paid the Receiver the amount of the Entry.

The representations and warranties made by Client in this Agreement shall survive termination of this Agreement and the termination of processing services provided by ACH PROCESSOR.

ACH PROCESSOR, in its sole and absolute discretion, has the right to immediately suspend or terminate processing for Client and/or this Agreement if ACH PROCESSOR, the Financial Institution, ODFI or any applicable Agency believes that Client has breached these representations and warranties, any other representations and warranties made elsewhere in this Agreement, or has initiated any unauthorized Entries.

In addition to all other indemnification obligations in this Agreement, Client agrees to indemnify, hold harmless and defend ACH PROCESSOR, Financial Institution and the ODFI, including all of their directors, officers, employees and affiliates, for any claims, losses, liabilities, costs, fines or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any actual or alleged breach of these representations and warranties, any other representations and warranties made elsewhere in this Agreement, or  unauthorized Entries.

If Client breaches these representations and warranties, any other representations and warranties made elsewhere in this Agreement, or has initiated any unauthorized Entries, Client acknowledges that ACH PROCESSOR, Financial Institution and/or the ODFI will suffer irreparable harm and the total amount of monetary damages for any injury to any or all of them will be impossible to calculate and therefore are an inadequate remedy at law. Accordingly, ACH PROCESSOR, Financial Institution or the ODFI, as applicable, may (i) seek temporary and permanent injunctive relief against Client, or (ii) exercise any other rights and seek any other remedies to which ACH PROCESSOR, Financial Institution or the ODFI, as applicable, may be entitled to at law, in equity and under this Agreement.

All representations and warranties made in this section shall survive any expiration or termination of the Agreement.

INDEMNITY

Without limiting any of the foregoing provisions, Client agrees to indemnify, hold harmless and defend ACH PROCESSOR from and against any and all claims, demands, losses, liabilities, costs or expenses suffered or incurred (including attorneys’ fees and costs) relating to, arising out of or involving any breach of the representations and warranties set forth in this Agreement, or the failure of Client to comply with the terms of the Agreement, all applicable Rules and Regulations, or applicable Financial Institution or Agency requirements. Client’s indemnity obligation survives termination of this Agreement.

ACCEPTING TRANSACTIONS

ACH PROCESSOR will only be responsible for processing Entries that have arrived at its premises in proper format and on a timely basis. ACH PROCESSOR will advise Client of any applicable cut-off time. Client does not have the right to cancel or amend any Entry after submission.

ORIGINATING TRANSACTIONS

ACH PROCESSOR will use the information provided by the Client to originate Entries to the ACH. Client acknowledges its understanding that ACH PROCESSOR may reject Entries for any reason permitted or required by the Rules or applicable Regulations. Client also understands that Entries or files may be rejected which exceed the threshold parameters identified and set for the Client. Client also understands that an Entry may be rejected if the Entry would cause ACH PROCESSOR to violate any Federal Reserve or other regulatory risk control program, any other applicable Rule or Regulation, or ACH PROCESSOR’S Agreement with its Originating Bank or Financial Institution. At Client’s request, ACH PROCESSOR will make reasonable efforts to reverse, modify, or delete an Entry, but will have no responsibility for the failure to comply with that request. All such requests must be made in writing and faxed, delivered, or mailed to ACH PROCESSOR.

RETURNED ENTRIES

ACH PROCESSOR will apply returned Entries to Client’s account when they are received. ACH PROCESSOR will create and make available to the Client a report containing detailed information about returned Entries. If the Client requests that the returned entries be provided electronically, ACH PROCESSOR may do so according to the Rules   and Regulations regarding those transactions. Client is solely responsible for payment of any and all returned Entries.  Client acknowledges that ACH PROCESSOR has the right to establish return rate thresholds, which may be changed from time to time. ACH PROCESSOR has the right to immediately suspend processing and terminate this Agreement if returns exceed the established threshold.

SETTLEMENTS AND FINALITY

Funds representing collected ACH Payments shall settle to Client’s Designated Bank Account on a schedule determined by ACH PROCESSOR based upon an evaluation of the risk and credit exposure imposed by Client. The settlement cycle will be communicated to Client upon notice of account approval or account activation. ACH PROCESSOR reserves the right, at its sole and absolute discretion, to adjust the settlement cycle based upon account performance and changes in estimated credit exposure. If any Entry is returned after settlement, ACH PROCESSOR  will at ACH PROCESSOR’s sole and absolute discretion, either apply the debit to the current day’s settlement, or debit the Client’s account for the amount of the returned Entry plus associated fees. If sufficient funds to cover returned Entries is not available in the Client’s account, the Client shall immediately remit payment to ACH PROCESSOR to fully cover the amount of all returned Entries.

NO WARRANTY

Client acknowledges and agrees that ACH PROCESSOR does not have control over the conditions under which Client uses the payment processing system, and does not and cannot warrant the results obtained by such use. ACH PROCESSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR ACH PROCESSOR’S SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD- PARTY RIGHTS OR THE IMPLIED WARRANTIES OF CLIENTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ACH PROCESSOR DOES NOT WARRANT THAT OPERATION OF THE PAYMENT PROCESSING SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CLIENT ACKNOWLEDGES THAT THE PAYMENT PROCESSING SYSTEM IS PROVIDED FOR USE BY CLIENT “AS IS.” CLIENT FURTHER ACKNOWLEDGES THAT ACH PROCESSOR BEARS NO RESPONSIBILITY FOR THE CLIENT WEB SITE(S). CLIENT ACKNOWLEDGES THAT AN AUTHORIZATION FOR PAYMENT IS NEITHER A WARRANTY THAT THE PERSON PRESENTING THE AUTHORIZATION IS THE RIGHTFUL ACCOUNT HOLDER NOR A PROMISE OR GUARANTEE BY ACH PROCESSOR THAT IT WILL PAY OR ARRANGE FOR PAYMENT TO CLIENT FOR THE AUTHORIZED TRANSACTION. CLIENT ACKNOWLEDGES THAT AN AUTHORIZATION DOES NOT PREVENT A SUBSEQUENT REVERSAL OF A PREVIOUSLY AUTHORIZED TRANSACTION PURSUANT TO THIS AGREEMENT.

LIMITS OF LIABILITY

ACH PROCESSOR will be responsible for the performance of ACH services in accordance with the terms of this Agreement and the Rules and applicable Regulations. ACH PROCESSOR will not accept responsibility for errors, acts, or failure to act by others (whether directly or indirectly), including but not limited to, Financial Institution, banks, communication providers, common carriers, or clearing houses through which Entries may be passed and or originated. ACH PROCESSOR is not responsible for any loss, liability or delay caused by fires, earthquakes, war, civil disturbances, power surges or failures, acts of governments, labor disputes, failures in communication networks, intervening criminal or tortious acts of third parties who are not within ACH PROCESSOR’S control or employ, legal constraints or other events beyond the control of ACH PROCESSOR. ACH PROCESSOR shall not be liable to Client for any delays in receipt or transmittal of funds or errors in credit or debit Entries caused by third parties, including without limitation, the Automated Clearing House, any depository financial institution, or any agent of Client.

VOLUME ANALYSIS

ACH PROCESSOR will routinely analyze Client origination and return activity. In the event the Client exceeds a return rate outside the standard return rates for its industry (as determined by ACH PROCESSOR in its sole and absolute discretion), ACH PROCESSOR determines Client’s business is operating or previously operated in a manner that ACH PROCESSOR believes in its sole and absolute discretion could cause it financial or legal risk, or ceases to do business with ACH PROCESSOR, ACH PROCESSOR shall have the right at any time to place all of the provisional or final credit provided to Client for each Debit Entry originated by it in an account held by ACH PROCESSOR for a period of two (2) years from the last Debit Entry. The above determining factors are at the sole and absolute discretion of ACH PROCESSOR. ACH PROCESSOR shall have the right to offset against amounts owed to Client for all returned Entries, fees, damages, or other costs that may arise out of ACH processing for the Client.

DAMAGE WAIVER

IN NO EVENT WILL ACH PROCESSOR OR FINANCIAL INSTITUTION BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE CONSIDERATION BARGAINED FOR IN THIS AGREEMENT WAS BASED UPON THE FOREGOING LIMITATION OF LIABILITY. ACH PROCESSOR MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY MADE IN THIS AGREEMENT.

RESERVE BALANCES

ACH PROCESSOR shall decide, in its sole and absolute discretion, whether Client will be required to maintain  a Reserve Account and the amount of such Reserve Account. ACH PROCESSOR, in its sole and absolute discretion, may also adjust the amount Client is required to put on reserve from time to time during processing for Client. For Clients where Reserve Accounts are required, Client acknowledges that any amount held in reserve by ACH PROCESSOR shall remain in reserve for a period of up to two (2) years following the last debit transaction initiated by Client at the sole and absolute discretion of ACH PROCESSOR. Client acknowledges that this Reserve Account will be used to fund any and all returned Entries. ACH PROCESSOR shall also have the right to offset against amounts owed to Client for all returned Entries, fees, damages, or other costs that may arise out of ACH processing for the Client. Client acknowledges that no amount of this Reserve Account can or will be refunded except as provided in this paragraph of the Agreement.

CUSTOMER SERVICE

Client agrees to maintain, support and staff a customer service line during normal business hours.

SEVERABILITY

In the event any provision of this ACH TOS is held invalid, illegal or unenforceable by a court of competent jurisdiction, only that provision shall be severed from this Agreement and the remaining provisions shall continue in force, provided that each Party preserves the substantial benefits of the bargain contemplated in this Agreement.