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Terms and Conditions for Request for Transfer and/or ... - Ing

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Terms and Conditions for Request for Transfer

and/or Electronic Statements

ING

1. Definitions

1.1.

In the Agreement and the Schedules to it (including

these Terms and Conditions), capitalised terms shall

have the meaning as set out in the section below headed

“Definition list”.

1.2

The Schedules to the Agreement (as may be amended

from time to time) form an integral part of the

Agreement.

2. Subject of the Agreement

2.1.

The Instructing Party shall be entitled to authorise the

Forwarding Bank and the Executing Bank to,

respectively, forward and execute Electronic Payment

Instructions and/or send Electronic Statements with

respect to the Account(s) as specified in Schedule 1 of

the Agreement provided that:

a. the Instructing Party has furnished the Forwarding

Bank with a Power of Attorney from each Customer

whose Account(s) is/are to be debited by the

Executing Bank (Schedule 2) completed with a

declaration from the Executing Bank, with respect to

the validity of the signatures; and

b. if applicable, an agreement to the effect as

described in Schedule 1 has been concluded

between each Account Holder and its

Correspondent Bank, wherein, amongst other things,

the Account Holder authorises the Correspondent

Bank to execute Electronic Payment Instructions

initiated by the Instructing Party and remitted by the

Forwarding Bank to the Correspondent Bank; and

c. an agreement to execute requests for transfer has

been concluded between each Forwarding Bank and

each Executing Bank in their bilateral or multilateral

relationship.

2.2.

Each Bank has been designated as Forwarding Bank or

Executing Bank or both as specified in Schedule 1 of the

Agreement.

2.3.

Each Customer has been designated as Instructing

Party or Account Holder or both as specified in

Schedule 1 of the Agreement.

2.4.

The Bank shall remain extraneous to the relationship

between the Instructing Party and the Account Holder as

well as the rights and obligations of any nature

stemming from their use of the Electronic Payment

Instructions and/or Electronic Statements.

2.5.

The Customer agrees that each Bank involved in the

Agreement, is released from its bank secrecy

obligations, insofar that it is necessary to carry out the

Agreement.

The Customer acknowledges that particulars of its

banking relationship with the Executing Bank may be

disclosed to the Forwarding Bank for the purposes of the

Agreement.

3. Obligations

3.1.

The Forwarding Bank shall be responsible for ensuring

that the message contained in the Electronic Payment

Instruction is in conformity with the Instructing Party’s

instructions. Revocation of an Electronic Payment

Instruction will not be possible once the Forwarding

Bank has remitted the Electronic Payment Instructions to

the Executing Bank. Revocation of Electronic Payment

Instructions is only possible directly to the Executing

Bank and subject to the terms and conditions of the

Account. The Forwarding Bank will be deemed to have

correctly carried out its obligations when it remits the

Electronic Payment Instruction to the Executing Bank (in

accordance with the Instructing Party’s instructions), in

which case the Account Holder is considered to have

given consent to the Electronic Payment Instruction as

contained in the instructions remitted by the Forwarding

Bank.

3.2.

The Executing Bank will have carried out its obligations

in respect of an Electronic Payment Instruction when the

Executing Bank in each and every case has acted in

conformity with the instructions given in the electronic

message remitted by the Forwarding Bank. The point in

time of receipt of the Electronic Payment Instruction will

be considered the point in time of receipt of the

Electronic Payment Instruction from the Forwarding

Bank.

3.3.

The Executing Bank has the right among other things to

refuse the Execution of Electronic Payment Instructions

in the following cases:

a. the Customer has not provided the Executing Bank

with the information or documents required to

execute the Electronic Payment Instruction;

b. Revocation or expiry of a Power of Attorney,

c. fraud, insufficient funds;

d. if the Executing Bank considers that such transfer

request may contravene any legal obligations of the


Executing Bank, including but, not limited to, money

laundering regulations;

e. seizure or encumbrance, charge, pledge,

hypothecation, lien, right of set-off, retention or any

other security interest exists on the related Account.

If legally permissible, the Executing Bank will inform the

Account Holder of the refusal and if appropriate of the

reason thereof.

3.4.

The Executing Bank shall execute all Electronic Payment

Instructions in accordance with the local law and

regulations of the applicable jurisdiction were the

Executing Bank is established. The Execution of

payments shall be subject to the general conditions and

regulations of the Executing Bank, and shall be

governed by the law of the jurisdiction as referred to in

the foregoing sentence. Notwithstanding any provision

in the general conditions and regulations of the

Executing Bank, the Instructing Party agrees to this

English version of the Agreement.

4. Responsibilities/Liabilities

4.1.

The Bank shall use its best efforts to ensure the proper

functioning of the Service described in clause 2 and 3 of

the Agreement.

4.2.

The Bank shall not be liable for any losses, damages,

costs or expenses, whether direct, indirect, incidental or

consequential, which any person, including the

Customer and/or third parties, may suffer, save for those

caused by wilful misconduct, gross negligence or

negligence where essential obligations are breached by

the Bank, as a consequence of:

a. Use of the Service by the Customer;

b. Any failure of the Bank to perform its obligations

under the Agreement resulting from circumstances

which cannot be considered to be within the Bank’s

control, such as, but not limited to, action or inaction

of any governmental, national, international or local

authority, force majeure, war, boycotts, blockades,

strikes or civil disturbances;

c. Any disruption or failure in any communications

facilities or interference or any equipment failure,

regardless of whether these facilities or equipment

are managed by the Bank or by a third party.

4.3.

In the event that payments are not made in due time by

reason of delays or failure of the Service as referred to

in clause 4.2 , the Bank shall only be liable towards the

Instructing Party or the Account Holder for the statutory

interest unless otherwise agreed between the Bank and

the Customer.

4.4.

In the event an Instructing Party requests the

Forwarding Bank to forward Electronic Payment

Instructions to a Correspondent Bank for Execution, the

Forwarding Bank shall bear no responsibility for the

Execution of those instructions by such Correspondent

Bank or liability for the actions of such Correspondent

Bank following receipt by it of these instructions.

4.5.

Notwithstanding the provisions of article 4.2 and/or 4.3,

no liability of the Bank shall exist in the event that the

above losses and damages result from a breach by the

Customer of any term of the Agreement or are in any

way imputable or attributable to the Customer.

4.6.

The Customer is responsible for its compliance with

laws, regulations and treaties, national or international, in

connection with the Execution of (cross border)

Electronic Payment Instructions and/or transfer of

Electronic Statements as a consequence of using the

Service.

5. Alteration

5.1.

Each Bank is authorised to change its Service, the

pricing and/or the Agreement and Schedule 1 at any

time. The changes will be notified to the Customer in

writing and will be binding upon that Bank and the

Customer as of the fourteenth day after the date of the

notification.

5.2.

Each change in Schedule 1 will be notified by the

Forwarding Bank to the Instructing Party.

6. Term of the Agreement

6.1.

The Agreement is concluded for an indefinite period of

time. The Agreement shall come into force as from the

date on which, in the opinion of the Forwarding Bank, all

necessary documents in relation to the Agreement and

in relation to the Service have been signed by all

relevant parties and received by the Forwarding Bank.

6.2.

The Agreement is terminated with respect to a specific

Account Holder at the moment this Account Holder has

revoked the Power of Attorney as described in

paragraph 2.1 (a) of the Agreement. In such case, the

Agreement remains valid with respect to the other

parties to the Agreement.

6.3.

In case the relationship between the Bank and a

Customer has been ended for any reason whatsoever,

the Agreement is terminated with respect to this

Customer at the same time. In such case, the Agreement

remains valid with respect to the other parties to the

Agreement, except when there is no Instructing Party to

the Agreement left, in which case the Agreement is

terminated as a whole, at the moment the relationship

Terms and Conditions for Request for Transfer and/or Electronic Statements November 2009 2


etween the Forwarding Bank and the Instructing Party

ends.

6.4.

Both the Forwarding Bank and an Instructing Party may

terminate the Agreement upon a 14 days written notice

to the other party and to the other Customers, provided

however that the Forwarding Bank shall be entitled to

terminate the Agreement with immediate effect, with

respect to a specific Customer or as a whole, if any of

the terms and conditions contained herein and in the

Schedule(s) hereto is breached by any such Customer,

or if any Customer voluntarily or involuntarily enters into

bankruptcy, receivership or similar proceedings. In

case there is no Executing Bank to the Agreement left,

the Agreement is terminated as a whole.

7. Governing Law and Jurisdiction

The Agreement is subject to the General Conditions of

the Forwarding Bank and shall be governed by the law

in the place of establishment of the Forwarding Bank.

Definition list

Account

Shall mean a current Account held by an Account

Holder with an ING entity or a Correspondent Bank;

Account Holder

Shall mean a legal entity or a natural person holding an

Account with an ING entity or with a Correspondent

Bank, whose Account is to be debited as a result of the

Execution of an Electronic Payment Instruction sent

through a Forwarding Bank;

Agreement

Shall mean the Request for Transfer and/or Electronic

Statements Agreement;

Bank

Shall mean the ING entities specified in the Request for

Transfer and/or Electronic Statements Agreement;

Electronic Statement

Shall mean a statement with respect to the Account sent

by the Executing Bank, which statement shows all debit

and credit transactions with respect to, and the balance

of, the Account;

Executing Bank

Shall mean the bank receiving an Electronic Payment

Instruction from the Forwarding Bank instructing to debit

an Account specified by the Instructing Party and taking

care of the Execution of such Electronic Payment

Instruction. The bank can be an ING entity or a

Correspondent Bank;

Execution

Shall mean the debiting of an Account of the Account

Holder as a consequence of an Electronic Payment

Instruction received by the Executing Bank, as well as

the forwarding of a credit transfer directly or indirectly

to the beneficiary's bank;

Forwarding Bank

Shall mean the bank receiving an Electronic Payment

Instruction from the Instructing Party and forwarding this

instruction to the Executing Bank. The Forwarding Bank

is an ING entity;

Instructing Party

Shall mean a legal entity or a natural person having a

banking relationship with the Forwarding Bank and

authorised by the Account Holder to initiate an

Electronic Payment Instruction through the Forwarding

Bank. The Instructing Party and the Account Holder may

be the same legal entity;

Service

Shall mean the Service provided by an ING entity to an

Instructing Party, through which the Instructing Party will

be able to give Electronic Payment Instructions and

receive Electronic Statements with respect to (an)

Account(s). This Service in itself shall not be considered

as a payment service.

Correspondent Bank

Shall mean a third bank with which an ING entity has

concluded an agreement on the transfer of Electronic

Payment Instructions;

Customer

Shall mean the customer entities specified in the

Request for Transfer and/or Electronic Statements

Agreement;

Electronic Payment Instruction

Shall mean an electronic payment instruction, that meets

the criteria for a payment instruction according to the

applicable general terms and conditions of the Account,

to debit one of the Accounts, initiated by the Instructing

Party which is sent via the Forwarding Bank for onward

transmission to the Executing Bank with the intent of the

instruction being executed by the Executing Bank;

Terms and Conditions for Request for Transfer and/or Electronic Statements November 2009 3

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