- “ACH”: has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.
- “Bank of First Deposit”: has the meaning ascribed to the term “depositary bank” in the Check Clearing for the 21st Century Act.
- “Business Day”: Monday through Friday, excluding holidays observed by the Federal Reserve System.
- “Check”: has the meaning ascribed to such term in the Check Clearing for the 21 st Century Act.
- “Company”: a third party appointed and authorized by JHA to resell and/or deliver the Services to Customer.
- “Customer” means the entity to which Company is reselling and/or delivering the Services and which is agreeing to be bound to these Terms.
- “Documentation”: all operating instructions, policies and procedures, end-user manuals, training materials, guides, implementation manuals, functional and technical specifications relating to the Services an provided to Customer in writing, including any revisions or additions to the foregoing
- “Excluded Activity”: any activity or business which is illegal under U.S. law or with which JHA declines to accept and conduct business generally, including without limitation: (i) Cash Advance/Check Cashers/Payday Loan Business; (ii) Bank Drafts, Remotely Created Checks or Electronically Created Payment Orders; (iii) Government Grant or Will-Writing Kits; (iv) International ACH Transactions (IAT), as such term is defined in the NACHA Operating Rules &amp; Guidelines; (v) Internet Gambling payments (see Regulation GG); (vi) Internet Tobacco or Firearms Sales; (vii) Predatory consumer lending business; (viii) Pornography or other Sexually-Oriented Businesses; (ix) Psychic or Horoscope Consultation Services; (x) Sweepstakes; (xi) Shell Banks; (xii) Used car dealerships exporting cars; (xiii) Foreign businesses importing cars; (xiv) Title Loan Businesses; (xv) Embassy/Foreign Consulate/Foreign Mission Accounts; (xvi) Marijuana Related Businesses; and (xvii) Crowdfunding.
- “Financial Institution”: as applicable, (i) in a Check Transaction, the Bank of First Deposit, or (ii) in an ACH Transaction, the ODFI.
- “Image”: the image that results from an electronic scan of a Check by Customer.
- “JHA”: Jack Henry & Associates, Inc.
- “Loss” any of the following, directly incurred by a party: losses, liabilities, damages, claims, costs, expenses, and reasonable attorney fees actually paid to a third party.
- “Originating Depository Financial Institution” or “ODFI”: has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.
- “Rules” means all laws, regulations and industry rules that apply to the Services, including without limitation, the NACHA Operating Rules &amp; Guidelines and associated regulations and guidelines, including those promulgated by any regional payment alliance associated with NACHA, the Check Clearing for the 21st Century Act and associated regulations and guidelines, and Federal Reserve System requirements.
- “Same Day Entry” has the meaning ascribed to such term in the NACHA Operating Rules & Guidelines.
- “Services”: the ACH processing services and/or the Check processing services provided by JHA to Customer.
- “Settlement Account”: a commercial demand deposit bank account which Customer has established for JHA’s access and use to settle Transactions.
- “Software”: the software programs owned by JHA and its licensors and provided by JHA with or incorporated as part of the Services.
- “Substitute Check”: has the meaning ascribed to such term in the Check Clearing for the 21st Century Act.
- “Terms” means these terms and conditions applicable to the Services provided by JHA.
- “Transaction” means an ACH transaction and/or a Check transaction processed by JHA, as applicable.
- Customer agrees to use the Services in accordance with these Terms.
- In the event JHA provides Check Transaction Services, the following terms will apply:
(i) All Checks deposited electronically by Customer through use of the remote deposit capture Services shall be subject to the following requirements: (i) The original Check will not be deposited through the remote deposit capture Services more than once; (ii) All Checks will conform to the requirements of Customer’s deposit agreement with its financial institution; and (iii) Customer shall review and validate the accuracy and completeness of the Check Transaction data being captured, including but not limited to the amount of the Check and the legibility of the Image generated from use of the remote deposit capture Services.
(ii) If Customer utilizes a scanner to create Images which are delivered to JHA for processing, Customer shall be solely responsible to ensure the quality, accuracy and completeness of the Image transmitted to JHA for processing. Customer shall be solely responsible for the selection, use and operation of the scanner. Any scanner used by Customer with the remote deposit capture Services must meet the technical specifications for scanners published by JHA to be deemed compatible with the remote deposit capture Services. JHA has certified certain scanners as compatible for use with the remote deposit capture Services, and such scanners are available for purchase or lease by customers of JHA’s remote deposit capture Services. Any purchase or lease of such scanners shall be transacted in a separate equipment purchase/lease agreement with JHA or JHA’s third-party provider.
(iii) Customer shall be solely liable and responsible for all damages, losses, expenses and claims arising from any of the following: (i) Duplication of Images transmitted by Customer to JHA through the remote deposit capture Services; (ii) Alteration of Images not caused by the Services or Software; (iii) Deposit of Checks on accounts with insufficient funds, counterfeit Checks, fraudulent Checks, or Checks bearing unauthorized or forged endorsements; (iv) Acts of fraud, negligence or willful misconduct committed by employees or agents of Customer in depositing Checks using the remote deposit capture Services; (v) Hardware failure not caused by the Services or Software; and (vi) Customer’s failure to properly store original Checks once the Image has been captured.
(iv) JHA is not responsible for printing any Substitute Checks which may be required by a financial institution to receive and process the Transactions. The party who prints a Substitute Check, and not JHA, shall be wholly liable for all applicable warranties and indemnification obligations under the Rules. JHA shall not be liable for any degradation of a Substitute Check not caused by JHA.
3. RECOUPMENT AND SET-OFF:
Customer shall immediately reimburse JHA for any returns or shortfalls that occur in the Settlement Account. JHA reserves the right to delay the availability of funds for deposit without prior written notices to Customer if, in its sole discretion, JHA deems itself at financial or relative risk for any and all Services performed. Customer hereby acknowledges and agrees that JHA shall have a right of setoff against: (a) any amounts JHA would otherwise be obligated to deposit into the Settlement Account; and (b) any other amounts JHA may owe Customer.
4. CONFIDENTIAL INFORMATION:
Customer shall protect and maintain the confidentiality of all Confidential Information disclosed by JHA to Customer under this Agreement and agrees to assume all risks of accidental disclosure or inadvertent or wrongful use by any party whatsoever except for JHA. Customer understands that any passwords and other credentials assigned to Customer for access to the Services constitute Confidential Information. Customer shall take reasonable security procedures and practices to safeguard the Confidential Information; limit access to Confidential Information solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating entries in the Services without proper authorization and supervision and adequate security controls. Customer acknowledges that no person from JHA will ever ask for any password and that JHA employees do not need and should not ask for Customer’s password.
Customer warrants that (a) all Transactions submitted to JHA for processing will comply with applicable Rules and Documentation; and (b) Customer will comply with all Rules and Documentation applicable to Customer’s obligations herein. It is JHA’s corporate policy not to knowingly provide Services for any person or organization whose use of the Services involves or pertains to an Excluded Activity. Customer warrants that it will not utilize the Services in conjunction with any Excluded Activity. JHA reserves the right to decline to process any Transaction which it deems in its sole discretion is in conjunction with an Excluded Activity. JHA reserves the right to unilaterally amend these Terms to update the Excluded Activities list upon written notice.
Customer shall indemnify, defend and hold harmless JHA and the Financial Institution from and against all Losses incurred by JHA and/or the Financial Institution arising out of (a) Customer’s breach of these Terms or the Rules; (b) return of a Transaction due to incorrect or incomplete data or information provided by Customer in the submission of the Transaction to JHA, a closed Customer or customer account, or insufficient funds in a Customer or customer account, and/or (c) fraudulent activity, wrongful or unauthorized use of the Services, or submission of fraudulent or illegal Transactions by Customer or a third party who has gained access to the Services through the use of Customer’s password.
7. LIMITATIONS OF LIABILITY:
IN NO EVENT SHALL JHA, THE ODFI OR THE BANK OF FIRST DEPOSIT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OF PROFITS OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES WAS FORESEEABLE. Except for actual, direct damages arising from any action or omission of action by JHA which constitutes the gross negligence or willful misconduct of JHA, JHA’s aggregate, cumulative liability to the Customer for all claims of actual direct damages relating to the Services, this Agreement, or the relationship between JHA and Customer, including any cause of action in contract, negligence, tort, strict liability or otherwise, shall not exceed an amount equal to the total amount of all fees paid by the Customer to JHA or a Company (as the case may be) for Services delivered under this Agreement during the three (3) month period preceding the origination of the claim giving rise to liability.
The Services provided to Customer may be terminated by JHA upon JHA’s written notice to Company and/or Customer due to: (a) Customer’s material breach of these Terms that, to the extent capable of cure, remains uncured for 30 days after Company’s receipt of JHA’s notice; (b) Customer’s fraudulent actions or omissions in connection with the Services and/or these Terms; (c) Company’s failure to notify JHA of a material change in Customer’s financial structure or a material change in the information originally provided to induce JHA to provide the Services to Customer; (d) Customer becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors&#39; rights; (e) in JHA’s sole judgment, there is a deterioration or other materially negative change in Customer’s financial status or structure which increases the financial risk being assumed by JHA in processing Customer’s Transactions; (f) there is a change in the Rules that are applicable to the Services which restricts or prohibits JHA from providing the affected Services to Customer or significantly increases JHA’s costs in providing the affected Services to its customers generally; (g) Customer’s business and/or assets are acquired by a competitor of JHA; (h) the agreement between JHA and Company is terminated or expired; or (i) in JHA’s sole judgment, Company fails to comply with Company’s underwriting and/or other due diligence obligations applicable to Customer.
9. THIRD-PARTY BENEFICIARY:
JHA is an intended third-party beneficiary to the agreement between Company and Customer. JHA has the right to directly enforce against Customer the terms of such agreement that relate to the Services. JHA shall have no responsibility or liability for Company’s obligations under such agreement.
10. BILLING EXCEPTION FEES (IF APPLICABLE):