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Home My WebLink AboutC2006-090 - 3/23/2006 - NA ~"'''' k ~ -. Frost Ban .. ~.~~ Remote Capture Agreement - Truncation of Original Checks rl1IS Remote Capture Agreement Truncatilln of Onginal Checks ('Agreement') is effective the ;; 3 day of M t\ v t1---. 200~ ("Effective Date") b~ and between The Frost ~ational Bank ("Frost Bank") and the commercial banking cu~tomer of Fmst Bank whose name and address appears on the signature page below ("Client'). I. Purpose of Agreement. fhis /\greemem I 1 ) permits Client to capture the electronic image of Original Checks II receives III the ordinary cour~e u;'busines~. (2) permits Client to electronically transmit a file of those images to Frost Bank for depOSIt and collecthm. ~md (3) specities the duties. representations, warranties and indemnifications being made by Cllene when perfomling these task~ (collectively. such tasks are referred to as "Remote Capture"), This ,\greement shaJl have no etTec! on Client's depOSIt agreement vvith Frost Bank that governs the terms, conditions or fees associated WIth Its deplJsit accountS, except dS expressly proVIded for herein. Nor shall this Agreement have any effect (In any loan agreemenL credit dgre,>ment. treasury management servIces agreement or other agreement with Frost Bank. Definitions. fht: defined tenns used herein are pwnded ll1 Frost Bank's "Remote Capture Services Pn\Cedures. Terms and Conditions. which I~ made a part of thIs Agreement for all purposes whatsoever. :; Access. Frost Bank shal: proVIde tll ClienL the Processing Equipment and access to the Processing Software to permIt Client I,) perform the Remote Capture actIVIties described m the aforementioned "Remote Capture Services !'rocedures. Terms and Conditlons' The Remote Capture actiVItIes performed by Client shall enable Client to convert Onginal Checks (lr Substitute Checks into electro1l1( Images for deposit mto Client's account(s) with Frost Bank Client tmy only conwn a Substltute Check into an electrol1lc image using the Processmg Equipment and Processing Software when it has been received by Client as a returned !tern whtch was previously deposited but not collected. Client and 1,'l'st Bank ~hall comply with the' temlS and pmVlSIons of the 'Remote Capture Services Procedures, Terms and ( ,.ndltions" wllh respect to perfo011ance of the Remote Capture activIties. 4 License. SUbjec1 to the [enns and c(lndllIOns of thIS Agreement, Frost Bank hereby grants Client a non- c'xc iusive. nun-transferable. !lmitett license t,J: (]) access and:or use the Processing Software for Client's own business qlerations but only teo the c'xtent that such sofuAare resides un the Processing Equipment and (ii) to use the Ik'cumentat10n 111 support uf Clien: ~ authonzed use nf the Processmg Software. Client agrees to abide by the provisions the "RemoteCaptur~s.eTV:lces Procedures.. Lerrns and Condltlons" with respect to all Processing Software and I )ocumentatlon 5, Representations and \\arranties. It l~ the intentJol1 of the panies that the warranties deemed given by a depositor of a check to a bank under the Umfoml Commercial Code (CCC) as applicable from time to time in the State fexas shall also applY to an~ image 0: e!ectromc representatIon of an Onginal Check or a Substitute Check transferred hy (l1ent to Frost Bank as if such Image ur electrol1lc representation were a paper check within the meaning the LCe \.ccordmgly except to the extent that any warrantles deemed given under the DeC are expressly superseded hy ( 'r A ,Jr Check.? I, Client understands that C!lent shall be deemed tn have given to Frost Bank all of the warranties that Client would have given under theCC for the deposit of an Onginal Check by transferring to Frost Bank. (i) any Substitute Check. (i!, an item purportmg to be a SUb~tltute Check but that fails to meet the requirements )1 Check21. ,JC (Iii) any electronic tile that cuntams llr purports to conta1l1 a Sufficient Image Copy of an Original Check .Jl a Substitute ('heck. [he abeve warranties are deemed given to Frost Bank and any person, company or bank to which Fn1st Bank transfers, presents or re!Ums any ()fthe Images included ll1 such electronic file as a Sufficient Image Copy, or ella! purports t(, be a Sufficient Inage Copv. or ,I Substitute Check created by Frost Bank or any subsequent bank -,xc'lving a C\)P\ ,If such tmage 2006-090 03/23/06 Frost ~ationa) Bank .~~"...., .= h Fees.lient agret:s 'U pav Frost Bank the fees as set fonh on Frost Bank's Commercial Banking & Treasury '\lanagement Scsvices Schedu~., Fees. as the same may be 1I1 effect from time to time, for access to the Processing f'qUlpment and Proce~slllg S,)ftvdre and the related services rendered by Frost Bank hereunder, unless other duly aurhorized.:ompensatl,)n arrangements have been made in writing between the parties. The fees are listed on the \d~hedEx;,llt ~(j~b l<;:e~ ;:.jjdlL'UIl~r~;1S,: tl1J (l"iglHJl,Ilt<;:rrn tllis"'.g.Le<:llle!!~ Termination. ThlS :'I,gll~ement shall cummence on the EtTective Date and shall continue thereafter until . '.c,,-~ ,'.~, ..()09.ill_L!!E..i iern11rlated by eItha pany upon thirtv (30) days advance written notice to the other party, W1iess otherwi'l~ terminated a~ pn,vided herem :leAgreen!~DL.,hall,,-')I1tlllue:or an additional one-year term under 'diU.':.. ter:m~.:!!iu CC'lIdltIOl},", Fro~t Bank may tenmnate thIS Agreement immediately by giving written notice if it discovers any \\Illful nnscunduct I, includmg bad checks or fraudulent actiVIties) on the pan of Client or any other party '.\ Ith respect to dectromc Images ~ubmItted by ClIent. Either party shall have the right to terminate this Agreement by \\Tilten notice 11' the other pam (1) riles or has filed against It a petIIlon III bankruptcy that has not been dismissed within -.xt} (60) dayslf filmg (or m : he ,vent (,f Frost Bank. has filed agalllst It a claim of insolvency by the FDIC), (ii) makes " ~eneral aSSIgnment for the b<.'nef i of credaors. or I Ill) appoints or has appointed for it a receiver for all or substantially i",.)f its assets [f this Agreement lIas been ~ernl1nated by Frost Bank. IT may accelerate all amounts due and to become due' under tlllS\greemelll and C!lIC'nt shall promptly make full payment to Frost Bank of all amounts due and amounts ltllurred under this Agreeme!l!1 ,'rmmatioll of thIS Agreement shall automatically terminate the limited license to the Pr(,cessing Software granted haelli. and shall gIve Frost Bank the fIght to demand immediate return of the Processing S,'hware, thc Processing EqUlpmnIt, and aL Documentation. In the event that Client fails to immediately return such Items upon \\Tl'ten demand of Fro" Bank. F "OSl Bank shall haw the authority to enter the premises of Client to remove ,Udl Items. S Frost Bank Liabilit~. (ilent acknl)wledges that the depOSIt of funds to Its account at Frost Bank via Remote ( apture IS an Internet activity. whI~h depends on many third parties not under the direct or indirect control of Frost Bank t(! effectively cause the electromc :lle to be delivered As a result. Frost Bank is not responsible for service interruptions tl' the Processmg Software ,)[ Processing Equipment. the failure of Frost Bank to receive such file, or the corruption of a11\ portIOn ,)f such file caused b\ problems outSIde Frost Bank'~ firewall or that are otherwise beyond Frost Bank's Ic'asonable COlllW!. Frost Bank shall nOl ha\ e any !labIlity for any breach of any representation, warranty or covenant of du, Agreemem to the extent ~au,cd by (i the unavailabtlity of the external connection services and other Internet llelV.!ork funclwns; (Ii) any modific ations, alterallOI1~ of or addition~ to the Processmg Software or Processing Equipment pert()rmed hy ,myone other than host Bank or,ts designated SeIYlCe proVIders; (Iii) use of the Processing Software or thc' Processmg Equipment b, (ilent Il1 " marmer not as set forth 111 this Agreement, the Procedures or any Documentation m a manner t('f w!llch it was not deSigned, or III combmatIon with systems, products or components not ~upplied or approved III \\Titll1g bv Frost Bank. 01 (IV) Client's use uf any software, equipment or other systems not supplied by Fwst Bank. TO rHE MAXnle:Y1 EXTE:'\T PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREE\-lE:'\T (INCLlDlNG ANY SCHEDULE, ATTACHMENT, OR EXHIBIT), FROST BA~K Al\D ITS AFFILIATES AND SLPPLIERS MAKE NO WARRANTIES OF ANY KI:".'D, EXPRESS, IMPLIED OR STA Tl'TORY, ABOLT THE PROCESSING SOFTWARE, PROCESSING EQUPME\T OR THE SERVICES OF FROST BAt\TK DESCRIBED [1\' THIS AGREEMENT, AND HEREBY DISCLAIM ALL IMPLIED \\\RRA.,'TIES OF MERCHA,'\TABILITY, FITNESS FOR A PARTICULAR PlRPOSE, TITLE OR '\O\-I\FRI:'\GE\lEYf. IN NO EVE\'T WILL FROST BANK, ITS AFFILIATES OR Sl PPLIERS, BE LIABLE TO CLlE:".'T FOR A:".'Y CO:".'SEQUENTlAL, INDIRECT, EXEMPLARY, Pl:'liITlVE, OR SPECIAL DA\IAGES (I:'IiCLLDlNG WITHOlT LIMITATION, LOSS OF REVENUE OR ,\:\'TICIPATED PROFITS, EVE~ IF FROST BA:\'K HAS BEE:'Ii ADVISED OF THE POSSIBILITY OF SL"CH IHMAGES) THAT ARE DIRECTLY OR INDlRECTU RELATED TO THIS AGREEMENT, ANY .\ TTACH~IE:\T OR THE eSE OF THE PROCESSI:'IiG SOFTWARE OR PROCESSING EQUIPMENT, EVE~ IF SeeH Dk'VIAGES ARE CALSED BY THE ORDl\'ARY ~EGLIGENCE OF FROST BANK, ITS AFFILIATES OR SL"PPLIERS. SUBJECT TO THE EXPRESS LIMITATIONS ON LIABILITY SET FORTH HEREIN, IF FROST BANK BREACHES THIS AGREEME:'\T, IT SHALL BE LIABLE TO CLIENT FOR DIRECT CONTRACT DAMAGES ARISING Ot:T OF SUCH BREACH OF ITS OBLIGATIONS UNDER THIS AGREEME:'IiT LIMITED IN THE AGGREGATE TO THE GREATER OF $50,000 OR THE FEES PAID BY CLIEl\T TO FROST BA:'IiK FOR RE\10TE CAPTURE SERVICES. -, l) Client lndemnity. Ulen' IS an mdcpendenl entity tl-om I rost Bank, and nothing contained in this Agreement <Ld: aUlhonze lient ([ an., pcrsc; to operate w ,)therwise deal III or with the Processing Equipment or the Processing ',. :rware m, nanner that \\ owd lI,'ur 1)1' Impnse an\ Ilabilitv I)r noilgallon ,)f or on behalf of Frost Banle 10 Force '\<lajeure. NeIther party shail be lIabie for delays 1Il Its performance hereunder due to causes beyond its I"dsonable control, Includmglcts A God, tire, war. nots, strikes or inability to obtain labor or materials on time, but JorlIe majeure shall not excuse the railure to nay f'e(~~ due hereunder 11 Independent Contractor In perf()rmIng services hereunder. both parties shall be considered the independent ".)ntractor 0 f the other. Nothlllg snall be construed to create a pannership, joint venture or agency relationship between the parties, Eacll pam WI]] be solely responsible ror payment of all compensation owed to its employees, as well as empioymem reiated taxes and hendits. ] 2 Survhal. N0twnhstandlI1g anythmg cuntamed m thiS Agreement to the contrary, the obligations created by SectIOns 4, 'I. - and 9 or any other proVision that by ItS terms or operations is intended to survive the termination of this c\greement shai I SUIYIVe any termmation. eXpIration or cancellation of this Agreement. U No \\ aiver. fhe tal lure ,)f either pany lO enforce any nghts granted under this Agreement or to take action agamst the other party In the event)fbreach shall not be deemed a waiver by that party as to subsequent enforcement of nghts or subse'1uent actions m the:vent of future breaches. 14, Compliance with Laws, Each party agrees to comply with the proVisions of all applicable federal, state, u)unty, or municipal laws. regulallons or ordinances. and shall be responsible for obtaining any and all authorizations hom any applicable governmental authority that may be reqUIred j()r the party to perform hereunder. Client agrees that It shall not use the Processmg SOftware or ProceSSIng EqUIpment In any manner that is designed or has the effect of \lo1ating or ,~vadIng any laws WIth regards w currency controls. money laundering or banking secrecy, ] 5. Notices. :\ll nO!lc:e, or "ther commUlllcatlons reqUIred to be gIven pursuant to this Agreement shall be in wntmg and gi\ en by (1) personal delivery. (II) expedited dehvery service with proof of delivery, or (iii) United States mall. postage prepaId. registered 0 certified mail. return receipt requested, sent to Chent's Designated Representative at the address set [(xth on the currently effectl\e Chent Contact Form and shall be deemed to have been received either, in the case of personal delivery as of the time (,1' personal delivery. lil the case of expedited delivery service as of the date (,f tirst attempted delivery at the address and In the manner proVided herein. or 111 the case of mail upon actual receipt fIlher party shall have the right t( change IlS address for notice hereunder to any other location within the continental 1. mted States bv notice to thelthel party of such new address at least thirty (30) days prior to the effective date of such new address I !'Ost Bank shaU ha\ c a reasonable lime. not to exceed five business days (any date the Bank is open for hllsmeSS). to implement any N'Jtic actually recelwd by Bank from Client. Client expressly agrees that all notices to be serH by Frost Bank hereunder except any J1(\tice of termination of this Agreement. may be sent bye-mail to the e-mail i,ddress or k' subsequent e-mad address Cl1,.nt has last gIven to Flost Bank tor such Designated Representative on the c ,lrrently effecl:\e Clien! ( "nuct I .lml. 16. Severability. The ll1ValiJIty or unenfc)fceabllity of any particular proVISIon of this Agreement shall not affect the validity elr ,:nforceabihtv (f th.: other PT<lVISIOns hereof the remaining provislOns being deemed to continue in full force and etlec ] -; Integration and "lodification. i'hls Agreement together with the Remote Capture Services Procedures, emlS and Conditions. the LlCatlon Set-up Fonn(s) and the Chem Contact Form constitutes the entire agreement between Frost Bank and Client c('llceming the subject matter hereof and supersedes in full all prior written and oral agreements. understandings, proposals, promises and representations of the parties concerning the subject matter hereof. 1\0 representatIon or promise hereafter made. nor any modification of this Agreement shall be binding upon either party unless in '-"THing and SIgned by duly authorized representatives of both parties. Changes to Procedures by Frost Bank, however. shall not be deemed iO bl' an amendment or modification of this Agreement, 18 Headings. The headmg~. captlOus. and arrangements used m thIS Agreement are for convenience only, and shall not affect the interpretatwn 0 this Agreemem - 3 - e~''''''\II'l' ]9 Successor and Assigns. "ieither P,trty ma: assign this Agreement or any nghts obtained hereunder without the IYlc>r wntten approval "fth.: uther party. 2IQ~idt'g. l!.oweveL that 11" approval shall be required for Frost Bank to assign Ull~ Agreement or its rights and dUIles hereunder te an Affiliate or any purchaser of substantially all of the assets of Frost Bank or Its \ffi hates. i\r the purchdser of that portlon of any branch or other busmess of Frost Bank responsible for the ,. \Tllmercial demand deposit account(s) of Cient Chent acknowledges that Frost Bank may use contractors to perform ~omc or all,f [~ serviles \.Vlthout Client', ,:, Jt1sent \ny assignment made III contravention of this Section shall be null (did \ oid fOI al: purpos.:s. 10 :he l '.tent that chert' elle successors m assigns permllled under this Section, this Agreement ,h,,;I be hindllll .m and mUle t., [h,. bendit Grthl' panIcS and thell' respective successors and assigns. 2U Governing Law. The pdl1ies agree that I exas IS the stale wllh the greatest nexus with this contract and is a ~late III which .L1l or part or the !\:,;reement is pert()rmable. rhe parties agree that Federal law and, to the extent not superseded ,ir preempted b) h'denllaw. Texas suhstantive law shall govern this Agreement. 21. Counterparts. rhls agr,:ement may be executed 111 any number of counterparts, each of which when taken h1gether shall ,onstitute une and ,he same agreement. and either of the parties to this Agreement may execute the Agreement by 'Igning any,f the c,.unterparto;. 22. Authorization. Client represents. warrants and agrees that (i) the execution, delivery and performance by the Client under the Agreement are within the Client's powers, have been duly authorized by all necessary action and do not contravene the Client's organizational documents (if any) or any law or contractual restrictions; (ii) no authorization, approval or other act, and no notice to or fIling with any governmental authority or regulatory body b required for the execution, delivery and performance by the Client of the Agreement: (iii) the Agreement constitutes the legal, valid and binding obligation of the Client and the Agreement is enforceable against the Client in accordance with the terms of the Agreement; (iv) no information furnished by the Client to Frost Bank in connection with the Agreement is inaccurate in any material respect, contains any material misstatement of fact, or omits any fact necessary to make such statements not misleading, as of the date it is dated. or if not dated, the date it is given to Frost Bank; and (v) the Client has not been induced to enter into the Agreement by any representations or statements, oral or written that have not been t'xpressly incorporated herein hy reference. Client agrees to deliver to Frost Bank, upon execution of the Agreement and at any time upon Frost's request, a certified copy of a duly adopted resolution authorizing the execution of the Agreement and the granting of authority to the person(s) identified herein. B Dispute Resolution and Irrevocable Waiver of Jury. Chent and Bank each agree that this is a commercial l dntract betwe,:n sophisticated partIes regularly engaged m commerce. Each party to this Agreement, acting on behalf (" Itself and any of Its af1iliates directly or mdlrectly involved In any dispute. controversy or claim arising out of or It'iated to thiS .-\greemenr. agrees tilat If such dispute. controversy ur claim cannot be resolved by conciliation, then any Illlgation ansing out ot such dispute. contro\ersv dl claim shall be exclUSively brought in Texas state or federal district l,)urts sltting 1ll San AntoniO, Te:\ds. EACH PARTY, FOR ITS SELF AND ITS AFFILIATES, SUCCESSORS ,\:'\D ASSIGl\'S, HEREBY IRREVOCABL Y WAIVES A..'\'Y RIGHT TO DEMAND THAT A JURY HEAR, BE PRESENT OR DECIDE .-\N) LlTIG\TIO'\' MATTER BETWEEN THE PARTIES, IT BEING THE PARTIES' []\TE:\TI01\ THA! A .leDGE SHALL BE THE SOLE TRIER OF FACT IN A~Y SUCH DISPUTE. EXECUTED as ,)fthe EffectJ\e D:ile. C LJENT (~gf-- CQt -p-' 2~+H ',h j i . By _L Li~.~ Pnnt6d N ame '.-L,.C~.2L'TJ( ..-1\.1 ".-:' '1 1; '- \(" V\.<', , ,'_~ - 4 - ( ;)<.) I LiVeC~rt< C..ol> eo! ') GAn st\ Tv '-1 cflfDl Att~oved~:':~~ 02 :)0 b P)'b~, 0- !i:.~,,--..~'2 ~ Lisa Aguilar I I Assistant City Aftomey For City Attorney , r '>Get.) Address: HE FReiS 1 '-A 1I0N.\L B\..'\i-, ~.~., /'. /' By ,.'l!-. __ _~ / \ / '~ ............~ - Prmted \'ame: _SYlvia Whi tmore .\ddress: 100 W Houston Street, San Antonio, Texas 78205 Attn: Treasury Management Customer Service - :) - REMOTE CADTURE \.-It) \.If \.-or!)u:, _11.lstl F.;.f,jfna;w~k"ati: F ~,.,tI'1!Y_Mai!ll~llanc~ ~. IrTlages --- No Charge No Char e $100.00 ~!Q~~f.~