APS Legal Agreements

These Funding and Acknowledgment Terms (these “Funding Terms”) are a part of the APS Subscription Agreement, available at https://apspayroll.com/legal/agreements/subscription, and are hereby incorporated into the APS Subscription Agreement by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the APS Subscription Agreement. These Funding Terms set forth the additional terms and conditions under which Customer will fund amounts required pursuant to the Services. In the event of conflict between these Funding Terms and the APS Subscription Agreement, the terms and conditions of these Funding Terms shall take precedence. All terms of the APS Subscription, including without limitation all disclaimers, limitations of liability, agreements and indemnities, apply to these Funding Terms.

PLEASE REVIEW THESE FUNDING TERMS CAREFULLY. BY ACCEPTING THESE FUNDING TERMS OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE FUNDING TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE FUNDING TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

• • Tax Payment and Processing. APS agrees that it will: (i) directly draft from Customer’s designated Demand Deposit Account (“DDA”), hold in its Tax Trust Account (“Trust Account“), and deposit with an appropriate authorized depository on or before the statutory deadlines, the required Federal, State, and Local payroll tax amounts; (2) prepare and file required Federal, State, and Local payroll tax forms and reports; (3) provide electronic copies of the tax forms or equivalent reports of the data filled. APS is not a responsible party for payment of taxes to any Federal, State, or Local tax authority, except to the extent that APS is holding funds in trust for payment of said taxes. APS assumes responsibility only for interest charges and/or penalties, which result from the negligence of APS. APS does not accept responsibility for failure to make deposits or filings if it is not provided with adequate or timely information or sufficient funds. Customer agrees to have APS fees directly drafted from their DDA for all Services. As additional consideration, Customer hereby assigns to APS any benefits, including interest, derived on the funds in the Trust Account. APS is not a responsible party for the application of or the issuing of tax identification numbers with Federal, State and Local taxing authorities. APS is not responsible for any pre-existing errors or similar matters arising prior to commencement of the Services by APS or for any errors that may occur as a result of Customer not providing APS with the necessary or accurate information to provide the Services.
  • Funding. Customer agrees to submit and release payroll batches to APS on or before 3:00 p.m., Central Standard Time, at least two (2) banking days prior to the payroll check date. As a result of the submission and release of a payroll batch, Customer authorizes APS to initiate electronic debit and credit Automated Clearing House “ACH” entries, pursuant to Section 6 below to the designated DDA provided upon setup and any accounts identified subsequent to this Agreement as authorized by the APS bank change authorization form. APS reserves the right to require Customer to initiate a direct wire, per wire instructions provided, or process via an approved Drawdown Fedwire with a settlement date of one (1) banking day prior to the payroll check date, in the event that the payroll tax liability is in excess of $100,000, any single direct deposit entry is in excess of $100,000, the total net direct deposit batch is in excess of the then-current APS ACH risk management policy, or other due diligence concerns in APS’ sole discretion. Customer agrees to have, upon payroll submission, the funds available in the DDA for all ACH entries including but not limited to payroll tax liabilities, employee payments, processing charges, and any non-sufficient funds “NSF” or ACH return charges to prevent any issues in funding. Client further agrees to provide its banking institution with any instructions required by its bank agreement to complete the authorization for electronic transactions to be processed in accordance with this Agreement. If Customer’s bank refuses to honor the ACH debit entries, APS reserves the right to assess NSF and/or return charges. These charges shall be assessed for each returned transaction the greater of $250.00 or 2% of the amount returned. In the event that APS receives notification of an NSF or ACH return transaction for a debit entry, APS will notify Customer of the amount required to be wired and will provide wiring instructions. Should Customer fail to wire the required amount of funds to cover the return and additional charges are assessed as a result of the return, APS reserves the right to (a) reverse all ACH transactions originated related to the returned entry, (b) apply any funds held in reserve on behalf of Customer to the balance due APS and (c) immediately terminate this Agreement, whereupon Customer will immediately become responsible for all payroll tax deposits, required agency filings, and other liabilities resulting from the return or default, including but not limited to other unfunded obligations collection costs, interest and attorney fees. Account maintenance charges for individual direct deposit credit entries that are returned will be calculated based on the number of maintenance items returned at a minimum service fee of $5.00 per returned item.
  • Tax Notices. Customer agrees to immediately provide APS with copies of any notices or correspondence received from any Federal, State, or Local authority with respect to any tax return or deposit made by APS. Customer acknowledges that APS tax filing services are based upon information supplied by Customer (including proof of Federal, State and Local tax identification numbers, deposit frequencies, and tax rates) and the results of APS payroll services.
  • Dormancy. APS will refund to Customer, agency or employee checks that are issued from an APS bank account that are uncashed after a minimum of 120 days, less a dormancy fee of $30.00 per check. In the event that Customer discontinues processing payroll and requests that APS continues to file the applicable Federal, State, and Local tax returns, Customer will be charged a monthly dormancy fee of $50.00 per month.
  • IRS Tax Information Acknowledgment. As required by the Internal Revenue Service, the following information must be disclosed to taxpayers that utilize a third party to perform tax filing services on its behalf: Customer acknowledges that it is responsible for the timely filing and payment of all taxes and tax returns listed on Form 8655 and has authorized APS to file the returns and make the payments on behalf of Customer. Pursuant to Revenue Procedure 2012-32, it is recommended that Customer enroll in and use EFTPS to verify the payments are made in an accurate and timely basis. Additionally, there may be state tax verification programs available that can be used in the same manner.
  • Third Party Sender (TPS) Acknowledgment. Customer confirms and agrees that it has authorized APS to act as Customer’s Paying Agent in processing checks and/or ACH Entries, and that as a Third Party Sender (TPS), APS will establish one or more clearing accounts with, and submit check, drafts, items, or ACH Entries on behalf of Client to First National Bank of Omaha as an originating depository financial institution (“ODFI”). Customer: (i) assumes the responsibilities of and makes the warranties of an Originator under the Operating Rules of the National Automated Clearing House Association (the “Rules”) and agrees to reimburse ODFI for returns, reversals, adjustments, reclamations, and warranty claims and responsibilities related to Customer’s ACH Entries; (ii) agrees to comply with the Rules, including but not limited to the requirements of Article Two (Rights and Responsibilities of ODFIs, Their Originators and Third Party Senders), Rule 2.15 (Obligations of Third-Party Senders, and of ODFIs and Originators that Use Third Party Senders), and warrants that international ACH Entries will not be initiated or originated by Customer, (iii) agrees to comply with all applicable state and federal laws, rules and regulations, including but not limited to sanction laws administered by the Office of Foreign Assets Control (“OFAC”), the Electronic Funds Transfer Act, the Unlawful Internet Gambling Enforcement Act and Federal Reserve Board Regulation E (the foregoing and the ACH Rules are, collectively, the “Applicable Rules”); and (iv) acknowledges that ACH Entries may not be initiated that violate the laws of the United States, including but not limited to the sanctions laws, regulations, and orders administered by OFAC, laws, regulations, rules, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”) (as such terms are defined below), and any state laws, regulations, or orders applicable to the providers of ACH payment services. CLIENT REPRESENTS AND WARRANTS AS TO EACH ACH ENTRY THAT IT HAS OBTAINED THE NECESSARY AUTHORIZATIONS UNDER THE RULES AND APPLICABLE RULES AND THAT IT SHALL NOT INITIATE ANY FUNDS TRANSFER AFTER THE AUTHORIZATION FOR THE SAME HAS BEEN REVOKED (OR THE AGREEMENT BETWEEN CUSTOMER AND TPS HAS BEEN TERMINATED). Customer understands that ODFI and TPS has the right to: (i) review, monitor, and audit Customer’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Client limited to CCD and PPD transactions; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI or TPS and/or the breach or termination of its agreement with TPS. Customer ratifies and approves of each and every action or instruction which APS may take or give on its behalf or otherwise with respect to such account or items drawn on or deposited into the account, and ODFI shall have no responsibility or liability to Customer with respect to the account or such items. Customer is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Customer or TPS provides. Customer authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Customer, including but not limited to funds transfer instructions. ODFI is not obligated to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Customer understands that each of ODFI and TPS has the right to: (i) review, monitor, and audit Customer’s ACH transactions, processes, and procedures for compliance with this Agreement and the Rules; (ii) restrict or limit the amount or type of ACH Entries processed for Client limited to CCD and PPD transactions; and (iii) suspend, discontinue, or terminate ACH processing based on its assessment of the risk posed to the ODFI or TPS and/or the breach or termination of its agreement with TPS. Customer ratifies and approves of each and every action or instruction which APS may take or give on its behalf or otherwise with respect to such account or items drawn on or deposited into the account, and ODFI shall have no responsibility or liability to Customer with respect to the account or such items. Customer is responsible for the results of using a TPS, the services, and for the accuracy and adequacy of the data Customer or TPS provides. Customer authorizes ODFI to act on any instruction which has been or reasonably appears to have been sent by TPS or Customer, including but not limited to funds transfer instructions. ODFI is not obligated to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. Customer understands that if it or the TPS provides ODFI with incorrect information or if there is any error in the instruction it accepts full responsibility for losses resulting from any of the errors, duplication, ambiguities, or fraud in the information that was provided to ODFI. ODFI is not responsible to third parties (such as, but not limited to, third party service providers and the third parties to whom wire or ACH debit or credits are transmitted hereunder) and CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD ODFI HARMLESS FROM, THE ACTIONS OR OMISSIONS OF TPS, OR ANY CLAIM MADE AGAINST ODFI ARISING OUT OF CLIENT’S USE OF THE SERVICES, BREACH OF THIS AGREEMENT, OR BREACH OF ANY WARRANTY UNDER THE RULES.
    
    This acknowledgment shall survive the termination of the agreement between TPS and ODFI. Notwithstanding anything to the contrary elsewhere in the agreement between TPS and Customer, ODFI shall be considered an intended beneficiary of this acknowledgment and is entitled to enforce its terms. This acknowledgment is agreed to in consideration of ODFI’s agreement to serve as ODFI. Customer waives notice of the ODFI’s acceptance of this acknowledgment.
  • Notice with Respect to Non-Consumer ACH Wholesale Credit Transactions and UCC Article 4A. (i) Customer Entries may be transmitted through the Automated Clearing House; (ii) The rights and obligations of the Originator with respect to such payments shall be construed in accordance with and governed by the laws of the State of Nebraska, unless it has been otherwise agreed that the law of some other state shall govern; (iii) Credit given by a Receiving Depository Financial Institution (RDFI) with respect to an Automated Clearing House (ACH) credit entry is provisional until the RDFI receives final settlement for such entry through a Federal Reserve Bank or as otherwise provided for under Article 4A; and (iv) If an RDFI does not receive such final settlement or payment, you are hereby notified and agree that the RDFI is entitled to a refund from the Receiver the amount of the credit to the Receiver’s account, and the party making payment via such entry (i.e. the originator of the entry) shall not be deemed to have paid the amount of such entry.