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R-597 - 09/28/1993 - FINANCE - Resolutions A ELEaCTR,pN�C�'41AIA 1ST C. 6^4 k. 1-22—U RESOLUTION 93-AG-21-R--597 A RESOLUTION AUTIMRIZING EXECUTION OF ELECTRONIC FONDS ORIGINATION AGIUMMT BETWZZX THE VILLAGE OF ORR DRUM AND THE FIRST OAK BROOK BANK i BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: That the Village Manager is authorized and directed to execute an Electronic Funds Origination Agreement with the First Oak Brook Bank for services to electronically initiate debits or credits for payment of member charges at the Oak.Brook Sports Core. Said agreement shall be in substantial conformity with the form of agreement attached hereto as Exhibit A. . PASSED AND APPROVED this 28th day of September, 1993, by the President and Board of Trustees of the Village of Oak Brook, DuPage and Cook Counties, Illinois, according to a roll call vote as follows: Ayes: Trustees Bartecki, Kenny, McInerney, Payovich, Shumate and Skinner Nays: None Absent: None Abstain: None Village President '-- ATTEST: Village Clerk . 1 I �+ .. E MIEIT "A" . copy l XVICTRONIC FONDS ORIGINATION AGREEMENT i THIS ELECTROLTIC FONDS ORIGINATION AGREEMENT ("Agreement") is made this _dj± day of 19f,l , by and between MT1 T AGE AR OAK 2203K (the "Customer") and Oak Brook Ban (the "Bank") . 1. IIBLLYS2NARY BTATLMEII'1'. The Customer desires to participate in the financial industry's funds collection/distribution services by utilizing the Bank as an originating institution and the capabilities of the Bank's distribution network. The Bank is a Participating II Institution as defined by the Automated Clearing House Service of the Chicago Clearing House Association ("CHEW") . The Bank shall perform for the Customer one or more of it the funds collection/disbursement related services described in the attached Exhibit(s) which include, but are not limited to, the services specified below in accordance with the terms and condi- tions of this Agreement and the pertinent Exhibit(a) . .If the terms of the Exhibit(s) conflict with the terms of this main agreement, the terms of the Exhibit(a) shall apply. The rules and regulations of the National Automated Clearing House Association (NACHA) govern all electronic funds transactions and are binding in all cases except where the Bank has specifically noted exceptions to the NACHA rules. 2. Certain Definitions. As used in this Agreement: (a) "Business Day„ means any business day of the Bank, but excluding, in the case of ACH transfers, days on which the Bank's NACHA's or the CHEW's elec- tropic data processing equipment used in connection with ACH transfers is not in operation or is other- wise unavailable for any reason. (b) "CHEW" means the Automated Clearing House Service of the Chicago Clearing House Association and its successors. (c) "NACHA11 means the National Automated Clearing House Association and its successors. (d) "Rum means the CHEW or NACHA Operating Rules, as in effect from time to time. (e) "Entries" shall have the meaning provided in the Rules and shall also mean the data received from the Customer hereunder from which the Bank prepares Entries. i Unless the conti��xt otherwise requires, initially capitalised terms not otherwise defined in this Agreement which are defined in the Rules shall have the same meaning attributed to them in the Rules. , As a condition to pLrticipate in the funds collection/ disbursement services through the Bank's distribution network, the Customer and the !lank agree to the terms and conditions below: 3. Dutios of Quetamer. (a) Transmittal of Bntries by customer: ACH trans- actions will be initiated by giving the Bank trans- action information in the Bank's specified formats containing complete data on the receiver's bank, account number and net amount to be transferred. Transaction data should be provided via a transmission, a magnetic tape diskette or paper listing, delivered to the Bank or initiated via Micro ACH. (b) The Customer is required to ensure that all transaction data is complete and accurate and can be processed in the Bank's specified format. The Bank shall have no responsibility for the accuracy or correctness of ACH entries submitted by the Customer or to the Sank. (c) In the event that the data is not provided in a timely, accurate, or complete way, or in the format required by the bank, the Bank shall not be liable for any tardy, inaccurate, or incomplete results produced by the bank. The Bank reserves the right to refuse any untimely, inaccurate or incomplete data or, in the alternative, to assess an additional charge for re-formatting the data. (d) pre-Initiation Dutiest The Customer will have sent Pre-notification (in compliance with the Rules) through the bank to the CHEN for distribution to the appropriate Receiving Institution that the Customer intends to initiate Pre-Authorized Debit/Credit Bntries to a Customerts account. Such Pre-Notification must be provided by the Customer to the Bank at least ten (10) calendar days prior to the initiation of any Pre-Authorized Debit/Credit antry. j (e) Maintaining Demand Deposit accounts The Customer will maintain a demand deposit account with the Bank through which settlement will occur for all originated files. Upon notification of ACH credits, customer will maintain balances in the debit account sufficient to cover the resulting ACH debit and bank is authorised to segregate an amount G, I ' equal to the ACH debit an said account. In the event that an overdraft is created in Customer's account, the Customer shall immediately cause the overdraft to be corrected and agree to indemnify the Bank for any loss or cost suffered (including attorney's fees) as a result of the overdraft and the Bank, if necessary, shall have the right to debit other accounts of the Customer to correct the overdraft. (f) Delivery to Sank of Data for Entries: With respect to all Pre-Authorized Debit/Credit Entries to be made on a Business Day, the Customer, prior to 2:30 P.M. (Chicago time) on the third Banking Day pre- csedinq the Business Day on which such Pre- Authorized Debit/Credit Entries are to be settled, will deliver or transmit, or cause to be delivered or transmitted, to the Bank the data relating to such Pre-Authorized Debit/Credit Entries on the media and in the format set forth in Appendix 3 to the Operating Rules of NACHA as in effect from time to time. (g) Reprooessing of Tiles: The Customer will reprocess all files which the Bank rejects for reasons of unprocessability and deliver new files, in accor- dance with Paragraph 3(f) . (h) ]lction on Erroneous Entries: While under the Rules, the Bank has no right to reverse, adjust or stop payment or posting of any Entry at the CHEW after such Entry has been received by the CHEW, the Bank may, and upon written request by the Customer will, notify a Receiving Institution to stop payment on or posting of, or to reverse or adjust, an erroneous Entry. i (i) The Customer is responsible for correcting its sending information in a timely manner upon receipt of a Notice of Change from the Bank. (j) lees: The Customer shall pay to the Bank all charges for the Bank's electronic funds originated services according to the then current fee schedule and the Bank may directly charge the Customer's account(s) at the Bank for such charges. I 4. sankos Rig lts and Resconnsilailities. (a) The Bank will furnish the Customer with a copy of the Rules at a reasonable fee. Thereafter the Ii Customer will have the responsibility for main- taining its copy of the Rules in a current, updated form. II 3 (b) The Bank shall retain a record of all ACH entries and adjustments for a period of time in compliance with the NACHA Rules currently in effect. (c) it is the Customer's responsibility, after having been notified by the Bank on a timely basis, to determine whether any returned ACH item has been made properly and on time by the party initiating the return in conformance with ACH rules. if there is any discrepancy, the Bank will initiate the appropriate corrections, if notified by the originating Customer within ten (10) days but will have no responsibility or liability if the correc- tions are not accepted by the other parties involved. (d) Notice of Rejected or Returned Zatries: The Bank will notify the Customer if the CHEW rejects any entry or any unprocessable file containing entries. The Bank will notify the Customer of each credit/ debit entry which is returned by a Receiving/De- pository Financial Institution. This notification will take the form of any advice of credit/debit to the Customer's account. The Bank will also reject any Entry which contains an Effective Entry Date more than 60 days after the business day such entry is received by the Bank. (e) Notification of Return of Entry by Receiving Institution: Any entry made by the Customer which is returned by the receiver's bank for any reason will either be returned to the Customer by the Bank or adjusted at the Bank's sole discretion. The Bank will only resubmit debits returned because of insufficient funds or uncollected funds (provided the Customer has requested represent service) . (f) account Reconciliation: The Bank will send to the Customer a bank statement for each of the Customers account(s) at least monthly. The Customer agrees to notify the Bank promptly of any discrepancy between the Customer's records and the information shown on any such periodic state-ment. Failure by the Customer to notify the Bank in writing of any such discrepancy within thirty (30) days after the statement date will relieve the Bank of any liability arising out of any such discrepancy. (q) The Bank will exert its best efforts to provide all Service(s) in a timely manner as specified in the applicable Exhibit(s) . However, the Hank will not be liable for any delay in providing the Service($) unless such delay is caused by the negligence of 4 �I r Bank or its employees. All transactions occurring after the stated deadline, as specified in the corresponding Exhibit(s) , will be processed the following business day. The Customer and the Bank shall comply with the security procedures on file (goo A gp% A. "SSgUrity Procedures") and subject to change from time to time, with respect to Entries delivered by the Customer to the Bank. The Bank shall not be held liable for fraudulent acts committed by the Customer or their employees. The Customer acknowledges and agrees that if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry will be made on the basis of the account number even if it identifies a person different from the nine Receiver, and that the Customer°s obligation to pay the amount of the Entry to the Bank is not excused in such circumstances. The Bank may rely on the identifying number of any intermediary bank, beneficiary bank or beneficiaryos account specified in any payment order or other instruction originated by the Customer, even if such ngae E identifies a person different from the Bank, other person or account identified by name. The Bank is not responsible nr liable for detecting any error in any such communication, including mismatched name and account number. 6. z;KIIJbits. The Exhibits which are attached hereto and made a part hereof to this Agreement are initialed. If new services are accepted, additional Exhibits may be added and will become part of this Agreement. Exhibit A - Direct Deposit of Payroll Exhibit B - ACH Funds Disbursement Exhibit C - ACH Funds Collection _Exhibit D - MicroACH Limited Use License Agreement Exhibit E - other Service for which an Exhibit is attached i 7. Use of servics Bu er aus. (a) The Customer is responsible for notifying the Bank in writing if Customer changes Service Bureaus. (b) The Customer is responsible for the payment of all S II charges assessed by the Service Bureau in connection with the performance of the service. (c) The customer's Service Bureau is bound by the same processing deadlines as the customer. The Bank shall not be liable for any delays or errors in processing resulting aService Bureaus data received from the 8. Baal 9-.=3 ab�ty. The Bank's liability under this Agreement shall be limited to those errors resulting from the Bank's equipment operators, programmers and software. The Bank shall not be liable for errors or delays caused basustainedr the software damagessshall be owned by others. if damages re limited to general monetary damages. This shall be the customer's sole and exclusive remedy, and the Bank will not be liable for consequential, special or other damages. Finally, the Bank shall have no liability for nonperfor- mance resulting from major events such as fire, casualty, breakdown oidable accident, acts of God, in equipment, lockout, strike, unav war, adverse governmental action, ruling regulation, order or decree, or emergency. 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's having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in the Bank's 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. j 9. IndOMMUX. customer agrees to indemnify and hold Bank harmless from j and against any claims and liability (including attorneys Ease) which may be incurred in connection with all funds collection/disbursement transactions initiated by the Bank in good faith in accordance with the procedures set forth herein unless such claims and liability are caused by the negligence of the Bank or its employees. customer further agrees that Hank shall not be liable for any failure to act, or for errors or delays due to electronic, mechanical or other technical difficulties or from delays ir a of posting result entries to the unl delays are n•gligencecofu the )Bank, sor such its employees. 10. siUaturgs. The customer represents and warrants that the execution and delivery of this Agreement and the Exhibits attached have been authorized by all required corporate or partnership action. I� i i'. f i If the customer is a corporation, the Customer agrees to provide the Bank with a certified copy of a corporate resolution by the Board oa -'irectors of the customer authorizing the appropriate officers of the customer to enter into this Agreement. If the Customer is a partnership, the customer agrees to provide the Bank with a certified copy of a resolution of said partnership which indicates the names of all partners having the authority to enter into this Agreement. 11• ���• No delay or failure on the part of the Bank or customer in exercising any of the Bank's rights under this Agreement shall constitute a waiver of such rights. 12. AMUdment. The Bank may amend the terms of this Agreement and the attached Exhibit(s) at any time in its sole discretion by giving written notice to customer. Bank agrees to give customer fifteen (15) days written notice of any material amendment. 13. Assi,anability. This Agreement is not assignable without the prior consent of either party. 14. Termination. The Bank may terminate this Agreement at any time without notice to Customer. The Customer may terminate this Agreement upon fifteen (15) days written notice to Bank. In the event of termination by either Bank or Customer in accordance with this Agreement, the pre-existing rights and obligations of both the Bank and Customer arising in connection with this Agreement shall not be impaired. 15. Integration. This Agreement constitutes the entire agreement between the Bank and the Customer relating to the subject matter hereof, and supersedes all proposals oral or written between the parties relating to the subject matter of this Agreement. 16. Ntices. The 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, and any such communication shall be deemed to have been signed by such person. The names and signatures of Authorized Representa- tives are set forth in the Exhibits attached hereto. The Customer may add or delete any Authorized Representative by written notice to the Bank signed by the executor of this agreement. such notice I 7 I shall be effective on the second business day following the day of the Bank's receipt thereof. Any notice given under this Agreement shall be in writing and shall be deemed given when deposited in the United States certified or registered mail, return receipt requested, or by telegraph or telex when delivered to the appropriate officer for transmission, charges prepaid, at the sadress of such party set forth below: I i Customer: Bank' VILLAGE OF OAR L4.K Oak Brook Bank 1400 - 16th Street 1200 Oak Brook 'Road Oak Brook, Illinois 60531 gak..Uo.4.ka.IL fi0 521 ATTN: Margaret C. Powers ATTN: Vill-age H agor Any notice under this Agreement may be waived by the party entitled to such notice. 17. eoverb€ng XA M1t1'eAM This Agreement shall be governed by. and construed in accordance with the Laws of the State of Illinois and all actions or proceedings arising out of, from or related to this Agreement shall be litigated in courts having sites within the County of DuFage, State of Illinois. IS. Wg j= o€ry2rial. The parties to this Agreement knowingly consent to a waiver of the right to' a jury trial in the event that litigation should arise out of or relating to this Agreement. j h ii { ,i i II III I � a a .....__..a...,.,..,�...__ __.... ... _. 1._:.:� '.. i i i R-441-7 0 19. it I' soxershd 7 l Iv- if any one or more of the provisions contained in this d to I illeqal or Agreement is for any reason revisi ns bof the lAgrewwntt shall unenforceable, the remaining p �j remain in full force and effect. I k Hank g VILLAGE tDF OA�C BROOK Oak Brook i ECustome ) i P / � • By: � s Title: ylLi.�►►G PAESI'M Title: l .s£ ......-- I Date: er Z8, Date: I' By• Title: V[LLwGE C _ - Dats: t�.e� 28 3-_--- i _ u i i is �II II i I g t _.. R-591 91 � XICROACH LIMITED SUBLICENSE AGREEMENT rA THIS JGREEMENT, is entered into as of the day of�,_,_v, ---�„f;,,, �, , 19?_ by and between VfILAGF OF OAK EROOK (the "company") and Oak Brook Bank (the "Bank") . RECITALS A. The Bank has entered into that certain Software License Agreement dated July 31, 1987 between the Bank and Stockholder Systems, Inc. (the "Licensor") whereby the Bank is granted certain rights with respect to the MicroACH System computer software program described on Exhibit A attached hereto and incorporated herein as fully as if set forth herein, including any modifications thereto that may subsequently be made (the "MicroACH system") . B. The Company desires for the Bank to process and transmit j orders and requests for the deposit and withdrawal of funds from. the account of persons and entities designated by the Company (such orders, requests and funds being hereinafter called "Transactions") , from time to time, in accordance with the terms and provisions of this Agreement. C. The Bank is willing to grant the Company a limited, non- exclusive, non-transferable sublicense to the MicroACH System and to process and transmit Transactions on the terms of, and subject to, the conditions contained in this Agreement. AGREEMENT NOR, TSEREFORZ, in consideration of the premises, the mutual promises herein contained and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Bank agree as follows: 1. Bank's Duties. Subject to the terms and conditions of this Agreement, the Bank agrees to process and transmit to the i f , i Room � Automated Clearing House Service of the Chicago Clearing House Association ("CHEW") or, at the Bank's election, to another financial institution or intermediary, such orders and requests with respect to Transactions as are transmitted by the Company to the Bank via the MicroACH System and in accordance with this Agreement. 2. Company's Aareeme b s. The Company agrees to be bound y the Limited Use License Agreement attached hereto as Exhibit A, and further agrees that the terms, conditions, warranties (and limitations thereto) , covenants and all other provisions apply as fully to the Bank as to the Licensor. No provision herein shall be construed as a limitation, waiver or modification of the Company's duties or obligations set forth in Exhibit A except as set forth herein and except that this Agreement, including the application of Exhibit A hereto, shall be governed by the laws of the State of Alabama. 3. Company's Further A reements. With respect to each Transaction, the Company agrees; (a) to abide and be bound by all provisions of the operating rules and operating guidelines (including, without limitation, all warranty, indemnification and force majeure provisions) of ALACHA and the National Automated Clearing House Association ("NACHA") in effect from time to time (collectively called the "Operating Rules" and "Operating Guidelines") ; (b) to prepare and submit each Transaction in a form that satisfies and complies with the requirements described in the MicroACH System Package; and, (c) to comply fully with all federal and state laws and regulations including, without limitation, the Electronic Fund Transfer Act, 15 U.S.C. , $1693 et sea. (the "EFT Act") , and Regulation E, 12 C.F.R. $205 et s Qz 4. Modifications Format and Media. The Company acknowledges that the Licensor may, from time to time, modify the MicroACH System to reflect improvements, changes in the Operating Rules and Operating Guidelines, and other changes and modifications effected by the Licensor. The Bank agrees to convey any such modifications to the Company promptly upon receipt thereof. It is understood, however, that the Bank has no responsibility for the format and media guidelines, or any other characteristics of the j ke reasonable MicroACH System, other than its obligation to ma ,j I � I I I efforts to notify the Licensor of problems when requested in writing by the Company. 5. Compensation. The Company agrees to compensate the Bank for the services rendered by the Bank hereunder in accordance with the schedule attached hereto and labeled Exhibit B. The Bank shall have the right to increase charges imposed for services rendered hereunder by giving the Company sixty (60) days prior written notice thereof. 6. SupRorting Ec uipment and Media. The Company agrees to provide and maintain in proper working order all necessary computer equipment and communications devices and equipment required by the MicroACH System to transmit Transactions to the Bank in full compliance with the specifications described in the MicroACH Package and set forth in this Agreement. 7. Transmission. The Company agrees to transmit Transactions to the Bank in accordance with such instructions as the Bank shall give from time to time in writing, and in accordance with the specifications described in the MicroACH Package and herein. 8. Schedules and Deadlines. The Company agrees to comply with and meet time schedules and time deadlines established by the Operating Rules, Operating Guidelines and/or the Bank from time to time pertaining to Transactions, including, without limitation, all requirements relating to the provision by the Company of a pre- notification message prior to the initiation of a Transaction. The Bank may reject any Transaction determined by the Bank, in its sole discretion, to be submitted after or before the time required by any such schedule or deadline. 9. Delivery of Funds. In the case of outgoing Credit transactions, the Company agrees to deliver to the Bank funds in an amount sufficient to cover each outgoing Credit, such funds to be collected and available to the Bank on a date acceptable to and approved by the Bank; provided, however, in no event shall such funds be collected and made available to the Bank later than the banking day preceding the transaction effective date. The Sank will have no obligation to transmit the Credit if collected funds I i I i i are not available; however, if the Bank should choose to transmit j the Credit in anticipation of collected funds becoming available, the Company agrees to immediately provide, upon notice, all funds necessary to cover such transmittal and further agrees that the Bank may exercise any right under law to collect such funds in- cluding, but not limited to, any right of set-off on any funds which the Company has on deposit in trust or otherwise and whether represented by an account, certificate or time. deposit. 10. Authorization. The Company agrees to obtain from all persons whose signatures are required in order to withdraw or deposit funds from or to any account with respect to a Transaction (hereinafter called a "Customer" whether one person or more) , a written authorization that authorizes the effecting of Transactions with respect to such account. Such authorization shall be in a form that complies with all requirements of the Operating Rules, Operating Guidelines, Regulation E, the EFT Act and all other applicable federal and state laws and regulations. The Company agrees to provide a copy of such authorization to the Customer at the time it is executed. The Company agrees to retain the original or a microfilm or other copy equivalent to a microfilm record of each such authorization for a period of six (6) years after termination or revocation of such authorization; or, in the case of an authorization for the initiation of a single Trans- action, for a period of six (6) years after initiating such Transaction, and shall, upon request by the Bank, promptly furnish such original or such copy of any such authorization to the Bank. If ?. Customer zhall revoke or otherwise terminate such an authorization, the Company agrees to update the Company's data files as may be necessary to prevent the transmission of subsequent Transactions with respect to the Customer's account. 11. Exclusivity. The Company agrees that the MicroACH System is proprietary with respect to the Bank and the Licensor and that the Company shall not, under any circumstances, transmit a Transaction batch via the MicroACH System to any financial institution or other entity other than the Bank for processing. The Company agrees that any breach of this covenant shall constitute an immediate and material breach of this Agreement. The Company further agrees to indemnify and hold harmless the Bank from any and all liabilities, claims and damages resulting from the w Company's breach of this Section 11. 12. Wa ,anti ev Renresen amens And„ Covenants_. The Company �, represents and covenants that each Transaction submitted to the Bank, at the time of such submission; (a) will be accurate, true and correct in all respects; (b) will have been fully authorized and approved by the Customer holding the account to which the Transaction pertains and such authorization and approval will be effective until such Transaction is posted to the account; (c) will be valid and timely under such authorization; (d) will fully satisfy and comply with all applicable requirements of the Operating Rules and Operating Guidelines; (e) will fully comply with the EFT Act, Regulation E and all other federal and state laws and regulations applicable thereto; and, (f) will fully comply with the specifications of the MicroACH System. 13. C2=uulsorry Use of Transaction. The Company further represents, warrants and covenants that the Company has not; (a) required any person to establish any account for receipt of any Transaction with a particular financial institution as a condition of employment or receipt of a government benefit; or, (b) conditioned any extension of credit to any person on such person's repayment by means of Transactions. 14. Third Parties Remedies: Damage Limitation of iA ility. In addition to and not in lieu of the limitations of liability contained in Exhibit A, the Company understands that the amount paid the Bank for the provision of services hereunder is very small in relation to the amount of the Company's funds that will be the subject of Transactions and that, therefore, the Bank's sole liability to the Company for failure to act in accordance with any instructions or for any other error, omission, or other failure in the performance of services hereunder shall be limited to the correction of any errors made. The Company agrees that the Bank shall not be liable for, and hereby releases and waives, any claims against the Bank relating to any damage, loss or cost incurred by the Company resulting from or arising out of the acts or omissions of any third parties, including, but not limited to, ALACHA, NACHA, any member of NACHA, any Federal Reserve Bank, or any other financial institution or entity receiving or transmitting Transaction or funds in connection therewith. In the event the c s - .._n.... _._�....._...... a ._.._....�_��.___.. I I Bank shall commit an error in connection with the processing or transmission of a Transaction, or funds in connection therewith, the Company's sole remedy against the Bank shall be to request the I Bank to correct the error with reasonable promptness. In no event shall the Bank be liable to the Company or to any person with respect to any Transaction for any indirect, consequential, special punitive or similar damages. The Company specifically acknowledges And Bad that the Bank is not responsible for the MicroACH System nor for any related computer hardware or communications equipment. The Bank will, however, direct the Company's complaints and suggestions with regard to the MicroACH System to the Licensor promptly upon receipt in writing of such complaints and suggestions from the Company. Furthermore, the Company specifically acknowledges and agrees that the Bank is not responsible for the computer software, hardware, and related communications equipment by which Transactions are received from the Company and transmitted in accordance with Section 1 hereof and agrees that the Bank's liability in connection therewith shall be limited to the correction of errors as described above. 15. Digputes Concerning„ Transactions. If any Customer notifies the Bank that a Transaction; (a) was in an incorrect amount; (b) was not properly authorized; (c) constituted an unauthorized transfer or error under the EFT Act or Regulation E; or, (d) was otherwise improperly, erroneously or unlawfully paid from such account, the Company agrees to pay to the Bank, upon demand therefore by the Bank in immediately available funds, the full amount of such Transaction plus any expense or cost incurred by the Bank in connection therewith. The Company further agrees that the Bank may, at the Bank's option, pay such amount to the Customer or may return such amount to the Company provided, however, upon payment of such amount by the Bank to the Customer; the Bank shall be absolved and released from any claims, demands, losses, liabilities, expenses and costs, including attorney's fees and costs incurred by the Company with respect to such Transaction and, the Bank shall have no further duty, obligation or responsi- bility with respect to such Transaction. 16. Indgmnifigation. The Company agrees to defend, indemnify and hold the Bank harmless from all claims, demands, losses, liabilities, expenses and costs (including attorney's fees and i costs) resulting or arising directly or indirectly from; (a) any act or omission by the Company or any of its agents, employees or representatives with respect to any Transactions or any funds received in connection therewith; (b) any failure on the part of the Company to comply with the operating Rules, the Operating Guidelines, the EFT Act, Regulation E or any other federal or state law or regulation; or, (c) any default, failure or breach by the Company with respect to any warranty, representation, covenant or agreement herein contained. 17. PeZection of Errors. The Company agrees that the Bank has no obligation or duty to detect errors with respect to any Transaction. However, if the Bank detects an error with respect to a Transaction, the Bank will endeavor to give the Company notice of such error and, the Company agrees to furnish to the Bank corrections promptly via the MicroACH System or as the Bank shall direct. In the event the Company discovers, or has reason to believe, that an error has been made with respect to any Transaction, the Company agrees to notify the Bank immediately and take such corrective actions as the Bank shall require. 18. Adjustment of Transactions. The Company acknowledges that it shall not have a right to reverse, adjust or stop posting of any Transaction after such Transaction has been transmitted by the Bank, or subsequent to such earlier time as the Operating Rules, Operating Guidelines or the Bank may prescribe from time to time, except in accordance with procedures contained in the Operating Rules and Operating Guidelines. 19. Farce Majeure. All of the Bank's obligations, responsibilities and covenants hereunder, whether express or implied, shall to suspended if any time, or from time to time, compliance therewith should be prevented or hindered by, or be in conflict with, any federal or state law; regulation or rule; the order of any court of competent jurisdiction; any act of God or of the public enemy; war; epidemic; strike; lockout; riot; weather condition; equipment failure or malfunction; material shortage; electric power disruption or shortage; communication failure or, other condition or circumstance not wholly controlled by the Bank. 20. Erroneous, ,Transactions. In the event the Company requests the Bank to transmit a Transaction in an amount other than the authorized or proper amount, or requests the Bank to withdraw funds from an unauthorized or improper account, the Company; (a) agrees to be responsible for all losses, damages, and liabilities resulting therefrom; (b) hereby waives and releases the Bank from any claim, liability or responsibility therefore; and, (c) agrees to defend, indemnify and hold the Bank harmless from all claims, demands, losses, liabilities, costs and expenses, including attorney's fees and costs, resulting or arising therefrom. 21. Confidentiality. The Company agrees that the Bank shall have no responsibility to maintain the confidentiality of any information submitted in connection with any Transaction unless the Bank shall agree in writing to preserve the confidentiality of any such information. 22. Te, rMination. This agreement may be terminated, with or without cause, by one party given the other party thirty (30) days prior written notice of termination. The Bank may terminate its obligations hereunder at any time without notice to any party upon the occurrence of any of the following events or circumstances: (a) the Company's violation or breach of, or default in the performance or observance of any term, agreement, representation or warranty contained herein; (b) default by the Company in the payment of any sum owed by the Company to the Bank hereunder or under any notice or other agreement; (c) misrepresentation given or made to the Bank in connection herewith; (d) the seizure, attachment, garnishment or encumbrance by court order or legal process of any portion of the Company's deposit accounts, assets o-- properties; (e) business failure, insolvency or bankruptcy of the Company; and (f) default by the Company under any other agreement between the Company and the Bank or under any note evidencing indebtedness owed by the Company to the Bank. This agreement shall remain in full force and effect until terminated as aforesaid, and all warranties, representations and covenants theretofore made shall survive and be binding and enforceable after termination. All sums owing by the Company to the Bank shall be due and payable in full immediately upon the termination of this Agreement. In the event that this Agreement is terminated for any reason, the Company shall immediately cease its use of the MicroACH System and shall, within five (5) days of such termination, return the MicroACH I j package and any and all copies thereof or of any part thereof tb the Bank. It is expressly understood that, for the purpose of this Section 21, the term "MicroACH Package" refers to any and all diskettes, software, instructions, documentation (as defined in Exhibit A) , and other such elements of the MicroACH Package, as the same may be modified or supplemented. 23. Successors and Assigns• This Agreement shall inure to the benefit of, and be binding upon, the respective successors and assigns of the Company and the Bank provided, however, neither party shall assign its interests hereunder without the express prior written consent of the other party. 24. get-off. The Bank is authorized at any time to set-off and apply any and all deposits, credits, funds, securities, assets and properties held, and all other obligations and liabilities owing, by the Bank to or for the account of the Company against any and all obligations of the Company now or hereafter owing or existing under this Agreement, whether or not matured or liquidated. 25. Rj=s QQMjativ9' Waiver; All of the Bank's rights hereunder shall be cumulative and not exclusive and the election of one right by the Bank hereunder shall not affect or limit any other right or remedy of the Bank. No waiver, amendment, or modification of any terms of this Agreement shall be effective unless acknowledged in writing by each of the parties hereto. 25. Financial Statements. The Company agrees from time to time, upon the Bank's request therefore, to provide the Bank with current financial statements showing the financial condition, assets, liabilities and stockholder's equity of the Company, and the current income and surplus of the Company, and such other information regarding the financial condition of the Company as the Bank may reasonably request. 27. gear et Agreaments. This Agreement constitutes the entire agreement of the parties hereto and shall completely superseae and replace any prior agreements or understandings of the parties inconsistent herewith. j! 28. g IM.ing, Law. This Agreement shall be governed by the laws of the State of Alabama. Z�[ =%=*a -1 1, this Agreement has been exe•Guted, or the undersigned have caused this Agreement to be executed, by duly Ii authorized persons as of the date and year first above written. i i VILLAGE OF OAK B1t00 , I By: A&Ode&. .�. I Its: VIL AGE PRESIDENT AtteM Its: VILLAGE CLERK JAIL BROOK BANK i By. Its: ! Attest: `' II Its: Senior Vice president I I: II III I� I I; f it II EXHIBIT V MicroACE LIMITED USE LICENSE AGREEMENT YOU SHOULD CAREFULLY READ THE FOLLOWING TERNS AND CONDITIONS BEFORE OPENING THIS PACKAGE. BY OPENING TRIO PACKAGE YOU ARE AGREEING TO BECOME BOUND BY TEE TERMS OF THIS AGREEMENT AND INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH TEEMo YOU SHOULD RETURN THE PACKAGE UNOPENED TO TEE INSTITUTION WHICH PROVIDED IT TO YOU WITHIN 13 DAYS FROM YOUR RECEIPT OF TEE PACKAGE. ANY FUNDS PAID BY YOU FOR THIS PACKAGE WILL BE REFUNDED. IF YOU DO NOT RECEIVE YOUR REFUND, CO1,VACT STOCREOLDER SYSTEMS, INC. IMMEDIATELY AT THE ADDRESS SET OUT BELOW. Stockholder Systems, Inc. ("SSI") provides the computer software program (the "Program") contained on the midium in this package and licenses its use. You assume full responsibility for the selection of the Program to achieve your intended results, and for the installation, use and results obtained from the program. LICENSE: In consideration of the payment of a license fee or other good and valuable consideration, you are granted a non-transferable and non-exclusive license to use the Program under the terms stated in this Agreement. A. You own the diskette or other physical media on which the Program is provided under this Agreement, but all title and ownership of the Program and enclosed related documentation ("Documentation") , and all other rights not expressly granted to you under this Agreement, remain at SSI. B. The Program may be used by you only as a single computer, and only for your internal business, in order to interface with the data processing equipment of the financial institution which provided the Program to you. I, �i !I C. You and your employees and agents are required to protect the confidentiality of the Program. You may not distribute or otherwise make the Program or Documentation available to any third party. D. You may not copy or reproduce the Program or Documentation for any purpose except you may make one (1) copy of the Program if the Program is not copy-protected, in machine- readable or printed form for backup purposes only, in support of your use of the Program on a single computer. You must reproduce and include the SSI copyright notice on the backup of the Program. E. Any portion of this Program merged into or used in conjunction with another program will continue to be the property of SSI and subject to the terms and conditions of this Agreement. You must reproduce and include the copyright notice on any portion merged into or used in conjunction with another program. F. You may not sublease, assign or otherwise transfer the Program or this license to any other person or entity without the prior written consent of SSI. G. You acknowledge that you are receiving only a limited license t2 use the Program and Documentation and that SSI retains title to the Program and Documentation. You acknowledge that SSI has a valuable proprietary interest in the Program and Documentation. y0V MA2 MOT USE, copy, MODIFY OR TRANSFER TEE PROGRAM OR DOCUMENTATION, OR ANY COPY, MODIFICATIONi OR MERaZD FORTIORI IN *SOLE OR IN FART, EXCEPT 718 EXPRESSLY PROVIDED FOR IN TEIS AGREEMENT. IF you TRANBFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED FORTIORI OF TEE PROGRAM OR DOCUMENTATION TO ANOTEER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED. ZU= The license granted to you is effective until terminated. You may terminate it at any time by returning the Program and Documentation to 881 together with all copies, modifications and I, ___... R-597 0 merged portions in any form. The license will also terminate if you fail to comply with any term or condition of this Agreement. You agree upon such termination to return the Program and Documentation to SSI together with all copies, modifications and merged portions in any form. Upon termination, SSI can also enforce any rights provided by law. The provisions of this Agreement which protect the proprietary rights of SSI will continue in force after termination. himilm ARMY: SSI warrants as the sole warranty provided to, you that the diskette(s) on which the Program is furnished will be free from defects in materials and workmanship under normal use and conditions for a period of ninety (9U) days from the date of delivery to you as evidenced by a copy of your receipt. No distributor, dealer, or any other entity or person is authorized to expand or alter either this warranty or this Agreement; any such reproduction will not bind SSI. SSI does not warrant that tNe functions contained in the Program will meet your requiremer.rs or that the operation of the Program will be uninterrupted or error-free. EXCEPT AS STATED ABOVE, THE PROGRAM AND DOCUMENTATION ARE PROVIDED 'IRS 1819 WITHOUT WARRANT=' OF ANY KIND, EITHER EXPRESSED OR IMPLIEDr :INCLUDING BUT NUT LIMITED TO, THE FLIED WARRANTIES OF MERCHANTABILITY AND YITN888 FOR A PARTICULAR PURPOSE. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM AND DOCUMENTATION- SHOULD THE PROGRAM PROVE DEFECTIVE• YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. LIMITATION8 qZ RZKBD I t SSTs entire liability and your exclusive remedy will be the replacement of any diskettes not meeting SSTs "Limited warranty" explained above and which is returned to SSI or to the institution which provided the Program to you, with a copy of your receipt. IMpORTjWTt if you must ship the Program and Documentation to SSI, you must prepay shipping and either insure the Program and Documentation or assume all risk of loss or damage in transit. To i . . s R--59-7 0 replace a defective diskette during the ninety (90) day warranty period, if you are returning the diskette to SSI, please send us your name and address, the defective diskette and a copy of your receipt at the address provided below. IN NO EVENT WILL 881 BE LIABLE TO YOU FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, INCLUDING DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE SUCH PROGRAM AND DOCUMENTATION, EVEN IF SSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES 80 THE ABOVE .LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL SSI-0 B LIABILITY FOR DAMAGES TO YOU OR ANY OTHER PERSON EVER EXCEED TEE AMOUNT OF THE LICENSE FEE PAID BY YOU TO USE THE PROGRAM, REGARDLESS OF THE FORM OF ANY CLAIN. GENERAL: This Agreement is governed by the laws of the State of Georgia (except federal law governs copyrights and registered trademarks) . If any provision of this Agreement is deemed invalid by any court having jurisdiction, that particular provision will be deemed deleted and will not affect the validity of any other provision of this Agreement. If you have any questions concerning this Agreement, contact SSI by writing to Stockholder Systems, Inc. , 4411 E. Jones Bridge Road, Norcross, Georgia 90092, USA. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT 18 THE COMPLETE ANu EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND 8SI WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGR=EIMZNT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BZTWZ= US RELATING TO THE SUBJECT NATTER OF THIS AGREEMENT.