EXHIBIT 10.16
AGREEMENT FOR ELECTRONIC PAYMENTS
This agreement is made 6/07/99 by and between Avert, Inc. ("Company") and
First State Bank of Fort Xxxxxxx, a Colorado corporation, 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxx Xxxxxxx, XX 00000 (the "Bank").
Recitals
A. The Company has requested that the Bank permit it to initiate electronic
entries through the Bank to accounts maintained at the Bank and in other
banks and Financial Institutions by means of the Automated Clearing House
(the "ACH").
B. Such entries may be Credit Entries or Debit Entries.
C. The Bank is willing to act as an Originating Depositary Financial
Institution with respect to such entries in accordance with the terms of
this Agreement and Operating Rules of the National Automated Clearing House
Association, as such rules now exist and as they may be amended form time
to time in the future (the "Rules").
Agreement
In consideration of the mutual promises contained in this Agreement, and
for other valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise defined in this Agreement, the capitalized
terms shall have the meanings provided in the Rules.
2. Compliance with the Rules. The Company acknowledges receipt of a copy of
the Rules as currently written. The Company will comply with and be bound
by the Rules. Any specific obligations of the Company under this Agreement
in no way alter the Company's duty to comply with the Rules. In the event
of any inconsistency between the terms of this Agreement and the Rules, the
Rules shall control.
3. Transmittal of Entries by Company/Security Procedures
3.1 General. The Company will deliver Credit Entries or Debit Entries
(together with the ACH Transmittal Register attached as Schedule A) to
the Bank in accordance with the format, content and specifications
contained in the Rules and this Agreement. The Company authorizes the
Bank to transmit all Entries received by the Bank from the Company in
accordance with the terms of this Agreement. The Company will deliver
each Entry or file to the Bank by the deadlines set forth in the ACH
Processing Schedule attached as Schedule B.
3.2 Hand-Delivered Files (Paper or Disk). Each file of ACH transactions
(either on paper or disk) which is hand- delivered to the Bank will be
accompanied by an ACH Transmittal Register in the form attached as
Schedule A, signed by an authorized signer for the Company. The
Company will maintain on file with the Bank an ACH Authorized
Signature Form listing the then current authorized signers for
Transmittal Registers in the form attached as Schedule C. The Bank
will anticipate the receipt of an ACH file from the Company on each
scheduled processing date identified by the Company and agreed to by
the Bank. Such processing dates are identified on the attached
Schedule F. The Company will notify the Bank if a file will not be
delivered on the scheduled processing date. The Bank will verify that
the file totals agree with any Company information. In the event ofa
discrepancy in the totals, the Bank will call the Company. In an
authorized representative of the Company is not available for
notification, then the file will not be processed until the next
business day after an authorized representative of the Company can be
contacted and the discrepancy corrected.
3.3 Personal Computer File Transmission. To the extent the Company wishes
to access the ACH system directly, the Company may do so using the
procedures required by First National Bank of Omaha ("FNBO"). The
Company acknowledges receiving a copy of the FNBO information and
procedures packet. The Company will provide the Bank with verification
of the totals contained in the transmission which includes an ACH
Transmittal Register in the form attached as Schedule A signed by an
authorized signer for the Company. The Company will maintain on file
with the Bank an ACH Authorized Signature Form listing the then
current authorized signers for Transmittal Registers in the form
attached as Schedule C. The Bank will anticipate a facsimile in the
form of attached Schedule A from the Company on each scheduled
processing date identified by the Company in writing and agreed to by
the Bank. The Bank will contact FNBO with the file totals on said
Schedule A so FNBO can verify the totals it will be receiving in the
transmission from the Company. The processing dates are identified on
the attached Schedule F. The Company is responsible for ensuring that
FNBO receives the transmission on each processing date indicated in
the processing schedule. In the event of a discrepancy in the file
totals, FNBO will contact the Bank and the Bank will in turn contact
the Company by telephone. If an authorized representative of the
Company is not available for notification, then the file will not be
processed until the next business day after an authorized
representative of the Company can be contacted and the discrepancy
corrected. The Company will notify the Bank if a transmission will not
take place on the prearranged scheduled processing date. The Company
is solely responsible for the accurate creation, modification, and
deletion of the account information maintained on the Company's
personal computer and used for ACH entries. The Company agrees to
comply with written procedures provided by FNBO for ACH entries. The
Company is solely responsible for access by its employees to the data
files maintained on the Company's computer. The Company is responsible
for operator security procedures on the one personal computer licensed
for use of any ACH-related software.
3.4 Security Procedures. The Bank may rely on any written notice or any
other written communication believed by it in good faith to be genuine
and to have been signed by an authorized representative of the
Company, and any such communication shall be deemed to have been
signed by such person.
4. Bank Obligations. In a timely manner, the Bank will process, transmit and
settle the Entries received from the Company in accordance with the Rules
and this Agreement. The Bank will not process, transmit or settle any
Entries on any Federal Reserve Bank holidays identified on Schedule G.
Furthermore, the Bank will have no obligation to transmit Entries if the
Company is in default under this Agreement.
5. Consumer Authorization Requirements. The Copany will obtain written
authorization for all consumer Debit Entries or Credit Entries. Such
authorization will comply with the Rules and the ACH Operating Guidelines.
The Company will retain the original or microfilm or other equivalent to a
microfilm record for two years after termination or revocation of such
authorization.
6. Pre-Notification - WAIVED
7. Exposure Limits. The Company will comply with the maximum exposure limits
(the maximum file values, frequencies and item values for Entries
transmitted by the Company) as set forth on the attached Schedule D.
8. Company Financial Information. As may be requested by the Bank during the
term of this Agreement, the Company will provide its financial information
to the Bank in a form satisfactory to the Bank. As a result of the Bank's
review of the Company's financial information, the Bank may amend the terms
of this Agreement under Section 18 (Amendments) below.
9. Payment
9.1. Credit Entries. The Company will maintain on account with the Bank for
the term of this Agreement, and will provide immediately available
funds in such account to cover any Credit Entry it initiates not later
than the applicable Settlement Date. The Company authorizes the Bank
to debit such account on the applicable Settlement Date in the amount
of each Entry. Additionally, after the Bank receives the Company's
Credit Entries, the Company authorizes the Bank to place a hold on the
funds in the Company's account for the total amount of the Entry until
the Bank debits such account on the Settlement Date. If the Company
does not provide sufficient available funds to cover any Credit Entry,
the Bank may debit any other account maintained by the Company with
the Bank in order to obtain payment of any Credit Entry.
9.2. Debit Entries. The Company will receive immediately available funds on
the applicable Settlement Date for Debit Entries it initiates.
10. Rejection and Return of Entries.
10.1 By Bank. The Bank will reject any Entry which does not comply with
this Agreement and the Rules. The Bank will notify the Company by
phone of any rejected Entry not later than one business day after such
Entry was rejected. The Bank shall not be responsible for correcting
Entries which have been rejected by the Bank. Furthermore, the Bank
shall have no liability to the Company by reason of the rejection of
any Entry or the fact that notice of rejection is not given at an
earlier time than that provided for in this Agreement.
10.2 By ACH. If any Entry is rejected or returned by the ACH for any
reason, the Company shall be responsible to correct such Entries,
except the Bank will correct any Entry where the ACH rejection was due
to mishandling of such Entry by the Bank unless insufficient data is
available to the Bank to permit it to correct such Entry. The Bank
will notify the Company by phone of the receipt of an Entry which has
been rejected or returned by the ACH not later than one business day
after the business day of such receipt. The Company will provide
available funds within one business day to indemnify the Bank and to
pay any return item fee charged by the Bank if any Debit Entry is
rejected or returned after the Bank has permitted the Company to
withdraw available funds in the amount thereof or if any adjustment
memorandum that relates to any such Entry is received by the Bank.
11. Data Retention. The Company shall retain data on file adequate to permit
correcting of Entries for five (5) business days following the date of
their delivery to the Bank, and shall provide such data to the Bank upon
its request.
12. Cancellation or Amendment by Company. The Company shall have no right to
cancel or amend any Entry after it is received by the Bank. However, the
Bank will use reasonable efforts to act on a request by the Company to
cancel or amend an Entry prior to transmitting it to the ACH or, in the
case of an "on-us" Credit Entry, prior to crediting the Receiver's account.
The Bank will have no liability if such cancellation or amendment is not
effected.
13. Account Reconciliation. Entries transmitted by the Bank with respect to the
Company's account at the Bank will be reflected on the Company's periodic
statement issued by the Bank. The Company agrees to notify the Bank
promptly of any discrepancy between Company's records and the information
shown on any such periodic statement. If the Company fails to notify the
Bank within ninety (90) days of receipt of a periodic statement containing
such information, the Company agrees that the Bank shall not be liable for
any losses resulting from the Company's failure to give such notice or loss
of interest with respect to an Entry shown on such periodic statement. If
the Company fails to notify the Bank of any such discrepancy within ninety
(90) days of receipt of such periodic statement, the Company shall be
precluded from asserting such discrepancy against the Bank.
14. Warranties. Under the Rules, the Bank makes certain warranties with regard
to Entries it originates for the Company. The Company agrees that it also
makes those same warranties to the Bank, including, but not limited to, the
fact that each Entry is authorized, accurate and timely.
15. Liability, Limitations on Liability, Indemnity
15.1 Extent of Bank's Liability. The Bank shall be responsible only for
performing the services expressly provided for in this Agreement, and
shall be liable only for its negligence in performing those services.
The Bank's liability for loss shall be limited to general monetary
damages under this Agreement for the preceding thirty (30) calendar
days. The Bank shall not be responsible for the Company's acts or
omissions (including without limitation the amount, accuracy,
timeliness of transmittal or due authorization of any Entry received
from the Company) or those of any other person, including without
limitation any Federal Reserve Bank or transmission or communications
facility, any Receiver or Receiving Depository Financial Depository
Financial Institution), and none of such persons shall be deemed the
Bank's agent. The Company agress to indemnify the Bank against any
loss, liability or expense (including attorney's fees and expenses)
resulting from or arising out of any claim of any person that the Bank
is responsible for any act or omission of the Company or any other
person described in this Section 15.1.
15.2 Consequential and Other Damages. In no event shall the Bank be liable
for any consequential, special, punitive or indirect loss or damage
which the Company may incur or suffer in connection with this
Agreement, including without limitation loss or damage from subsequent
wrongful dishonor resulting from the Bank's acts or omissions pursuant
to this Agreement.
15.3 Performance Excused. Without limiting the generality of the foregoing
provisions, the 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, emergency conditions or other circumstances beyond the
Bank's control. In addition, the Bank shall be excused from failing to
transmit or delay in transmitting an Entry if such transmittal would
result in the Bank having exceed any limitation upon its intra-day net
funds position established pursuant to present or future Federal
Reserve guidelines or would result in the Bank otherwise violating any
provision of any present or future risk control program of the Federal
Reserve or any rule or regulation of any other U.S. governmental
regulatory authority.
15.4 Indemnity. The Company will indemnify the Bank against any loss,
liability or expense (including reasonable attorney's fees) resulting
from or arising out of (1) any breach of any of the Company's
warranties contained in this Agreement and in the Rules, and (2) any
other breach of this Agreement by the Company, except to the extent
such loss, liability or expense results from the Bank's own
negligence.
16. Bank Fees. The Company will pay to the Bank the fees listed in the attached
Schedule E for providing the services referenced in this Agreement.
17. Inconsistency of Name and Account Number. The Company acknowledges that, if
any Entry describes the Received inconsistently by name and account number,
payment of the Entry may be made on the basis of the account number even if
it identifies a person different from the named Receiver
18. Amendments. From time to time the Bank may amend any of the terms of this
Agreement and any part of attached Schedules A through G. Any such
amendment shall become effective upon receipt of notice of the amendment by
the Company or such later date as may be stated in the Bank's notice to the
Company.
19. Termination. This Agreement may be terminated on ten days' written notice
by either party. Any termination of this Agreement shall not effect any of
the Company's obligations arising prior to such termination.
20. Assignment. The company may not assign this Agreement or any of the rights
or duties under this Agreement to any person without the Bank's prior
written consent.
21. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives,
successors and assigns.
22. Governing Law. This Agreement shall be interpreted in accordance with and
governed by Colorado law, United States law (as applicable), and the Rules.
The Company shall comply with applicable United States law when originating
entries under this Agreement.
23. Entire Agreement. This Agreement (including the attached Schedules),
together with any agreement for the Company's account with the Bank, is the
complete and exclusive statement of the agreements between the Bank and the
Company with respect to its subject matter, and it supersedes any prior
Agreement(s) between the Bank and the Company with respect to such subject
matter. In the event of any inconsistency between the terms of this
Agreement and any account agreement with the Bank, the terms of this
Agreement shall govern. If the performance of any services in accordance
with the terms of this Agreement would result in a violation of any present
or future law or regulation to which the 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 law or regulation, and the Bank shall incur no liability to the
Company as a result of such violation or amendment.
Dated the date set forth above.
COMPANY:
Avert, Inc.
By: Xxxxx X. Xxxxxx, VP Operations
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BANK:
First State Bank of Fort Xxxxxxx,
a Colorado corporation
By:
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Schedule A: ACH Transmittal Register
Schedule B: ACH Processing Schedule
Schedule C: ACH Authorized Signature Form
Schedule D: ACH Exposure Limits
Schedule E: ACH Origination Fees
Schedule F: ACH Company Processing Dates
Schedule G: Bank Holiday Schedule
