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HomeMy WebLinkAbout1992-363 1 92-363 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH FIRST INTERSTATE BANK TO PROVIDE 3 DIRECT DEPOSIT SERVICES FOR THE EMPLOYEES OF THE CITY OF SAN BERNARDINO. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 5 SAN BERNARDINO AS FOLLOWS: 6 SECTION 1. The Mayor of the City of San Bernardino is hereby 7 authorized and directed to execute on behalf of said City an 8 agreement with First Interstate Bank to perform direct deposit 9 services for the employees of the city of San Bernardino, a copy 10 of which is attached hereto marked Exhibit "A" and incorporated 11 herein by reference as fully as though set forth at length. 12 SECTION 2. The authorization to execute the above referenced 13 agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) resolution. I I I I I I I I I I I I days of the passage of this 14 15 16 17 18 19 20 I I I 21 I I I 22 I I I 23 I I I 24 I I I 25 I I I 26 I I I 27 I I I 28 92-363 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH FIRST INTERSTATE BANK TO PROVIDE 2 DIRECT DEPOSIT SERVICES FOR THE EMPLOYEES OF THE CITY OF SAN BERNARDINO. 3 4 5 6 7 8 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 8th day of September 1992, by the following vote, to wit: ABSTAIN ABSENT COUNCIL MEMBERS AYES NAYS ESTRADA 9 REILLY 10 HERNANDEZ 11 MAUDSLEY 12 MINOR 13 POPE-LUDLAM 14 MILLER 15 x x x x x x x 16 17 18 19 20 -ii-~ ~ 0+/ The foregoing resolution is hereby approved this I ~ September , 1992. day of // 21 of 22 Approved as to form and legal content: 23 24 JAMES F. PENMAN City Attorney 25 BY:~ ./ 26 27 28 ~ 92-363 u ACH TERMS AND CONDmONS 1. CONlROU1NG DOCUMENTS AND lAW. CUsroMER's participation in the ACH Services ("SelVices") and the resolution of any disputes arising from CUsroMER's use of the Services, shall be governed by these Terms and Conditions (including any attach- ments thereto), BANK's User Guide or other SelVice processing description ("user guide"), BANK's rules governing deposit a<x:ounts, any applicable software lig:nse agreements (whether or not executed by CUsroMER), (collectively, the "ACH Agreements"). the ACH operating rules in effect from time to time (specifically including, but not limited to, the National Automated Clearing House Association ("NACHA") Operating Rules and Guidelines) (collectively, the "Rules"), BANK's Tape Delivery rrransmission Schedule and ArlicIe 4A of the Unifonn Commercial Code, as, and if, enacted in the state of the BANK which received the Entry. Capitalized terms used in these Terms and Conditions which are not defined herein shall have the same meaning as in the NACHA Rules or Article 4A of the Uniform Commercial Code, as amended from time to time. as the context indicates. 2. SERVICES: A. Receipt and Transmission of Funds Transfer Instructions and Payment File Infonnation; Cutoff Deadlines. CUsroMER agrees that the creation, compilation, delivery and transmission of Entries shall be in accordance with BANK's cutoff dead. lines and these Terms and Conditions. Except as otherwise provided, BANK will process Entries within the time frames established by the Tape DeHvery/I'ransmission Schedule. Entries received by BANK after its cutoff deadline may be treated as received on the next Business Day. For securily of BANK and CUsroMER, BANK may change any cutoff deadline at any time upon notice to CUsroMER CUS- TOMER warrants that all Entries are complete, accurate and authorized. BANK may process Entries to Receiving Depository Financial Institutions ("RDF1s") directly or through any mechanis~ selected by BANK . B. EnIJy Umils. The total dollar amount of Entries transmitted by CUsroMER to BANK under each ACH s<.rvices on any one day shall not exceed the lesser of cOllected and available ba,1ancesin CUsroMER's Account or the aedit limit establiShed by BANK CUsroMER authorizes BANK to charge its Accounts with BANI{ and other financial institutions in the amount of CUsroMER's Entries. C. Honoring EnIJy Instructions. BANK will honor CUsroMER's Entries (including adjusting Entries and Entry cancella- tions) only when CUsroMER has complied with these Terms and Conditions. BANK will be under no obligation to honor, either in whole or in part, any such Entry which: (a) in the case of Credit Entries, exceeds CUsroMER's collected and available funds on deposit with BANK; (b) is not in accordance with any condition indicated by CUsroMER and agreed to by BANK; (c) BANK believes may not be authorized by CUsroMER or the Receiver; (d) involves funds subject to a hold, dillPute or 1egaI process preventing their withdrawal; (e) would violate any provision of any present or future risk control program of the Federal Reserve or any CWT'ent or future rule or regulation of any other federal or state regulatory authority; (O is not in accordance with any other requirement ~ in the Terms and Conditions or any BANK policy, procedure or practice; or, (g) for the protection of BANK or CUsroMER, BANK has reasonable cause not to honor an Entry. ~d . D. Rejected Entries. In the Event an entry is rejected by BANK for any reason whatsoever, it shall be the responsibility of CUsroMER to remake tJte Entry. Eo Returned Entries. In the event an Entry is returned by any ACH Processor for any reason whatsoever, BANK will submit the Entry back to CUsroMER for further instructions from CUsroMER, if any; provided, however, that BANK shall remake such Entries in any case where the return was due to BANK's mil;handling and suflicient data is available to BANK to penuit it to remake the Entries. CUsroMER shall retain and provide BANK upon request, all information necessary to remake any file of Entries until midnight of the third banking day following the Effective Entry Date. BANK will debit/credit CUsroMER's Account for Entries that are returned to the . BANK Unless the return is caused by BANK's failure to properly execute an Entry, BANK has no obligation to aedit CUsroMER's Account With interest on the amount of any returned Entry it has debited from such Account F. immediately Available Funds; Effective Entry Date. CUsroMER will receive funds for any Debit Entry on the Effective Entry Date for that Entry, subject to the right of BANK to make adjustments pursuant to these Terms and Conditions. G. inconsistent Beneficiary and Intennediary BANK Infonnation. If CUsroMER issues an Entry which describes the Receiver, the RDFl or any intermediary bank{s), inconsistently by name and a<x:ount or identifying numbers. payment of the Entry might be made on the basis of the account or identifying numbers even if it identifies a person or bank different from the named Receiver or RDFl. CUsroMER authorizes payment of such Entries solely on the basis of the designated account or identifying number{s), even though the payor knows or has reason to know of the inconsistency, and that CUsroMER's obligation to pay the amount of the Entry to BANK is not excused in such circumstances. 3. SECIJRfIY PROCEDURES, A. Selection of a Security Procedure. BANK and CUsroMER have agreed to one or more security procedures, which must be used by BANK and CUsroMER in connection with any Entry ("Security Procedures"). B. Protection of Security Procedures. BANK shall issue to CUsroMER certain identification numbers. passwords or other validation procedures (collectively, "Codes"). CUsroMER shall ensure that the Security Procedure(s) and the Codes will only be dis- closed to, and used by authorized individuals required to know or use them for initiation of Entries. Should CUsroMER or its agents have reason to believe that any of the Codes has or may have become known or used by unauthorized individuals. CUSTOMER shallimrnedi- ately notify BANK by telephone and agrees to confirm the oral notification in writing within 24 hours. CUsroMER shall be solely liable for Entries initiated before BANK has received such notice and has had a reasonable opportunity to act on such notice. BANK will replace the compromised Codes in accordance with BANK's security requirements. BANK reserves the right (0 change any or all of the Codes at any time by giving oral or written notice to CUSfOMER .' . 92-363 4. ERRONEOUS ENTR[ES lRANSMITrED OR AITlHORIZED BY CUSTOMER. If BANK receives an Entry (including an adjusting or cancellation Entry) which is transmitted or authorized by CUSTOMER and is erroneous in any way, CUSTOMER shall be obligated to pay the amount o[ such Entry as provided herein whether or not BANK complied with the applicable Security Procedure [or such Entry. 5. CONFIRMATION: ACCOI JNT RF.cONCII.lATION. CUSTOMER agrees to regularly and promptly review all Entries and other communications sent to CUSTOMER and to immediately notify BANK if CUSTOMER discovers any error or discrepancy between CUSTOMER's records and any BANK notice or statemen~ or any transfer CUSTOMER believes was not authorized by it If CUSTOMER fails to immediately notify BANK of such discovery or, in any even~ if CUSTOMER fails to notify BANK of any such error, discrepancy or unauthorized transfer within fourteen (14) days following the day BANK first mails or otherwise makes available to CUSTOMER BANK's notification, CUSTOMER agrees (in addition to any other applicable limitations on BANK's liability or any other indemnity from CUSTOMER to BANIQ, tha~ in the case of an erroneous Entry or transfer, CUSTOMER will be liable for all lasses (including any loss of interest) up to the amount thereot which result from CUSTOMER's !ailure to give BANK such notice or which might have been prevented by giving BANK such notice, and, in the case of an unauthorized Entry or. transfer, BANK will not be liable for any loss of interest which results from CUSTOMER's failure to give BANK such notice or which might have been prevented by giving such notice. If CUSTOMER !ails to notify BANK of any such error or discrepancy within one hundred twenty (120) days following the day BANK first mails or otherwise makes available to CUSTOMER BANK's notification described above, CUSTOMER shall be precluded from asserting such discrepancy against BANK 6. CUSTOMER REPRESENTATIONS. CUSTOMER represents and warrants to BANK that it has obtained authorizations from Receivers for Credit and/or Debit Entries to those Receivers' accounts at participating financial institutions (including those BANK branches which maintain Receivers' accounts) to enable BANK to perform the ACH Service. If Credit Entries are q!iginatedunder the ACH Service, the Receiver authorizations shall expressly authorize BANK to transmit Debit Entries to remove any em.neOus funds transfer(s) to Receivers' accounts, and shall further authorize CUSTOMER to release to BANK all information concerning its ReceM,rs that is required by BANK to enable it to recover such funds transfers. CUSTOMER shall cease initiating Entries for a Receiver's account(s) immediately upon CUSTOMER's receiving actual or constructive notice of the termination or revocation of the Receiver's authorization and BANK shall have no liability for Entries transmitted with respect to such Receivers. CUSTOMER will retain the original or a copy of each authorization received by CUSTOMER for six years after termination or revocation of the authorization and shall provide BANK copies of such authorization upon BANK's request 7, CONFIDENI1AI nY. Each party hereto represents. warrants and mutually agrees that all information concerning the other party or parties which comes into its possession pursuant to the Service (including, software licensed to CUSTOMER, user guides or any Security codes or keys) will be maintained as confidential and shall not be used or divulged to any other party exfept as may be necessuy . or advisable for the due performance of any of the Services or as required by apPlicable law. ~ . i . . . , 8. fEES. Unless otherwise agreed in writing, CUSTOMER shall pay BANK the fees and ns, S sllIents set forth for the Service in the most current price quoted by BANK, plusadditional fees for any extraordinary services. In addition, CUSTOMER shall pay BANK any taxes levied or based on the fees charged as a result of CUSTOMER's participation in the Services, including state or local privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by BANK, excluding BANK income taxes. If CUSTOMER obtains account analysis services from BANK, the amounts due hereunder may be charged to analysis. If CUSTOMER does not obtain account analysis servil:es or if CUSTOMER's analysis credits are insufficient to pay the amounts due hereun- der, CUSTOMER agrees to pay such amounts directly to BANK upon demand. CUSTOMER agrees that BANK may debit its Accounts for any and all fees payable under these Terms and Conditions. 9, UMITATION OF IJAB[InY. BANK's liability under the ACH Service shall be limited exclusively to actual proven damages arising directiy from its own gross negligence or willful misconduct Any compensation claims of CUSTOMER shall be calculated in accordance with the NACHA Rules. BANK shall be liable for incidental expenses and interest losses to CUSTOMER if BANK fat1s to properfy execute any Payment Order. Otherwise, BANK shall not under any circumstances, be liable for any special, incidental, indirect consequential or punitive losses or damages, including without limitation losses or damages from subsequent wrongful dishonor or resulting from BANK's acts or omissions, whether or not the likelihood of such losses or damages was known by either party at the time CUSTOMER begins participation in the ACH Services or at any time CUSTOMER delivers an Entry to BANK In addition, BANK shall not be liable for any losses or damages caused, in whole or in part, by the action or inaction of CUSTOMER, or any agent or employee of CUsroMER. whether or not such action or inaction constitutes negligence or a breach of these Terms and Conditions. BANK shall not be liable for any damage, loss, liability or delay caused by ~ciden~ strike, fire, flood. war, rio~ equipment breakdown, electrical or mechanical failure, acts of God or any cause which is reasonably unavoidable or beyond its reasonable control. CUSTOMER agrees that the fees charged for the performance of the Services hereunder shall be deemed to have been established in contemplation of these limitations on liability. CUSTOMER acknowledges that the reconstruction of events causing CUSTOMER to sustain damages becomes difficult and may be inaccurate more than one year following the occurrence of such events. Therefore. CUSTOMER agrees that any claim, action, suit or proceeding against BANK for damages resulting in any respect from its acts or omissions in the performance of the Services must be brought within one year from the date of such BANK's alleged act or omission. CUSTOMER agrees to immediately notify BANK of any claim by CUSTOMER. or any claim that is made to CUSTOMER by a third party, that any act or omission by BANK in connection with the Services has caused CUsrOMER or such third party to sustain any damages. . 92-363 10. INDEMNIFICATION. CUSTOMER agrees to indemnify, defend and hold BANK, its parent company, affiliates and subsidiar. ies, directors, officers. employees and agents harmless from and against any ~mage. loss or liability oC any kind, including without limitation. reasonable attorneys' fees and court costs; which result directly or indirectly, in whole or in part. from the Services provided hereunder. 11. COOPERATION IN 1.0&<; RF.cOVERY EFFORTS. In the event of any damages for which BANK or CUSTOMER may be liable to any of the others or. to a third party pursuant to the Service. BANK and CUSTOMER will under1ake reasonable efforts to cooperate with each other (as permitted by applicable law) in performing loss recovery efforts and in connection with any action(s) that the relevant party may be'ob~ to defend or elect to pursue against a third party. 12. ClISTOMER'S RF.cORDS. These Terms and Conditions and the performance by BANK of the Services hereunder shall not relieve CUSTOMER of any obligation imposed by law or contract regarding the maintenance of records or from employing adequate audi~ accounting and review practices as are customarily followed by similar businesses. 13. DESIGNATION OF ACCOUNrs. Pursuant to the CUSTOMER's purchase of the Services, CUSTOMER will need to designate accounts for speci/ic purposes. CUSTOMER agrees to provide to BANK in writing the designations required by the Services purchased. However, in the absence of such written designation, the course of dealing between BANK and CUsroMER shall take the place of a written designation. 14. CREDIT REVIEW. CUSTOMER is subject to satisfactory credit review by BANK from time to time, at BANK's sole option and discretion, and in accordance with BANK's established credit aiteria. CUSTOMER shall, upon BANK's request, provide to BANK any such credit-related information and assistance as BANK may require to perform any such review. Failure of CUsroMER to meet such standards Of" to provide such information Of" assistance when requested shall constitute a breach of these Terms and Conditions and shall permit BANK to terminate CUsroMER's participation in the Service. 15. AMENDMENr AND TERMINATION. BANK may amend the Tenns and Conditions orits user- guide;" from-time to time by giving written notice to CUsroMER or by sending CUsroMER a copy of the amended documents to CUsroMER's current billing address. Either party may terminate CUsroMER's participation in the Service by giving written notice to the other party. 16. C,oVF..RNING lAW. These Tenns and Conditions shall be governed by the laws of the state where BANK's principal place of business is located. 17. NOIlCES. All written notices to BANK shall be delivered or mailed to CUsroMER's office of account Notices sent to CUS- TOMER shall be delivered or mailed to CUSTOMER's current billing address. ; 18. BINDING ARBITRATION PROGRAM. The Service and CUSTOMER's participation lherein-shall be subject to the terms of . !lANK's Binding Arbitration Program. a copy of which has been provided to CUSTOMER and which is inCOl'porated herein by reference. 19. SPECIFIC PERFORMANCF.. CUsroMER agrees that money damages would not be sufficient remedy for any breach of these Terms and Conditions and that BANK shall be entitled to speci/ic performance, in addition to any other remedies at law or in equity, as a remedy for any breach. 20. SEVRRABllnY. To the extent possible, each provision of these Terms and Conditions shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision shall be held to be invalid, illegal or unenl<<eeable, such provision shall be ineflective only to the extent of such invalidity, illegality or unenforceability. without rendering invalid, illegal. or unenforceable the remainder of any such provision or the remaining provisions. 21. WAIVER. A waiver by a BANK or CUsroMER of any term or provision shall not be construed as a waiver of such term or provision at any other time, or of any other term or provision. 22. A<;SIGNMF.Nr. BANK may at any time assign or delegate its rights and duties under the ACH Service to any of its affiliates which are owned or controlled by BANK's parent company(s). BANK may at any time assign or sell its operations facility which provides the Service. Otherwise, neither party may assign or lransfer its rights or obligations hereunder to any other person without the other parties' prior written consen~ which consent shall not be unreasonably withheld. ~ ACCEPTANCE OF TERMS AND CONDITIONS AND SECURfIY PROCEDURES OF FlRSr INffiRSrATE BANK AuroMATED CLEARING HOUSE SERVICES First Interstate Bank ("BANK") offers its Automated Clearinghouse ('ACH") Services pursuant to the ACH Terms and Conditions, including any attachments thereto ('Terms and Conditions"), a copy of which is attached and incorporated herein by reference, BANK's User Guide or other services processing desaiption ("user guide"). its rules governing deposit accounts, any applicable software license agreement(s), (whether or not executed by CUSTOMER) (collectively,the "ACH Agreements"), the ACH operating rules in effect from time to time (specifically including, but not limited to. the National Automated Clearing House Association ("NACHA") Operating Rules and Guidelines) (collectively, the "Rules"), BANK's Tape Deliveryffransmission Schedule and the following Security Procedures. By executing this Acceptance, CUsroMER agrees that its participation in the ACH Services will be governed by the Terms and Conditions. the user guide, the rules governing deposit accounts. the ACH Agreements, the Rules and the Schedule and agrees to the Security Procedure (or the ACH Service in which CUSTOMER participates. .' '. 92-363 SECIIRllY PROCEDlIRRS ELEcrnONIC TRANSMISSION SERVICE (CPU/CPU Transmissions) SECURllY PROCEDURE Each ACH transmission submitted by CUSfOMER to BANK shall contain the (ollowing file control information: . File Identification (File "l.D.") . Debit and Credit Dollar Amount Totals . EnUy/AddendaCounffi CUsroMER's authorized agent shall provide this control information to BANK by telephone call to a telephone number specified.by BANK A BANK representative shall verify that the caller is listed on the ACH Customer Reference Card on file with BANK's ACH Operations Department. and shall compare the control information to Ihe transmission file that has been received by BANK MAGNETIC TAPE SERVICE SECURnY PROCEDURE Each ACH magnetic tape submitted by CUsroMER to BANK shall contain the following file control information: . File Identification (File "l.D.") . Debit and Credit Dollar Amounffi Totals . Entry/AddendaCounffi The magnetic tape submitted to BANK shall be accompanied by a written ACH Transmittal Letter signed by an Authoril<.>d Representative of Cuslomer, containing the control information. which BANK shall verify with CUsroMER via a telephone call back proc<:dure in which a BANK representative shall contact an Authorized Representative Iisled on the ACH Customer Reference Card of file with BANK's ACH Operations Department The telephone calls will be recorded by BANK ACIlON ACH SERVICE SECURfIY PROCEDURE BANK's ACIlON ACH Security Procedure has certain enhancement features which are optional to CUsroMER in addition to the Basic Procedure. , Basic Procedure. BANK will assign a unique password to CUsroMER. The password, which shall not beJ;tored on dUsroMER's personal compuler, is required for each transmission. The password shall be masked and encrypted. One CUsroMER employee will be designated as the Authorized Representative to use the Service. CUsroMER may elect to allow additional Representatives to use the Service. CUsroMER shall maintain a transmission log which includes debit and credit dollar amount totals, transaction counts and a confirmation code for each file transmitted to BANK All files transmitted shall be encrypted. Optional Enhancements. CUsroMER may elect. in accordance wilh BANK procedures, to add inactivity timeouts, forced password changes and a "lockout" feature to iffi Security Procedure. , Also. access 10 various functions, applications, critical data fields and transaction and file dollar amount limiffi can be sel for each Authorized Representative user of the Service. Enhancements are added by a separate written agreement between BANK and cusro MER. AGREEMENT: ACCEPTANCE OFTERMS AND CONDmONS AND SECURl1Y PROCEDURES OF FIRST INTERSTATE BANK AUTOMATED CLEARING HOUSE SERVICES BANK and CUsroMER agrees 10 the foregoing Security Procedure and the terms of this Acceptance. The Security Procedure has been discussed and offered as part of the ACH Service chosen by CUsroMER and is commercially reasonable for CUsroMER pursuant to Section 4A-202(C) of Article 4A of the Uniform Commercial Code. CU~TOMER agrees to be bound by any ACH transactions that are submitted and verified using BANK's Security Procedure. FIR~T I~~~ BANK '/ ') BY (<<.Ilt1-~~d~ TITLE: Vice President and Manager IlATE vit;ttl1:n/YA- J /I; /'192 CUSTOMER NAME' City ./ c"c:, ernardino BY: / / / Valerie Pope-Ludlam TfTLE: Mavor Pro "P"'mpnn~ DATE: September 10, 1992 IAIl12:15UY2 ~ i ," .' 92-363 I .. ACTI 01 ACH SOFTWARE LICEISE AGREEMENT FIRST INTERSTATE BANK OF CALIFORNIA ("Bank") and the undersigned Company (1ICompany") agree as follows: 1. LICENSE. Upon Bank's execution of this Agreement Bank hereby grants to Company, subject to the terms and conditions stated herein, a non~exclusive, non-transferable license to use the Politzer & Haney (IIP&HII) ACH Auto-Cash Transfer System and related documentation described at Exhibit A.1 (the IISystem'l) at only one Company Location and only in connection with the creation and transmission of funds transfer instructions to Bank under the ACTION ACH Program, and for no other purpose. At Company's request, Bank may grant licenses for use of the System at additional locations for an additional charge. 2. UPGRADES. Bank agrees to make available to Company such improvements to the System which Bank elects to obtain from P&H and available to Bank's customers, at Bank's standard prices then in effect. enhancements and generally makes 3. COPIES. authorized to Bank shall provide Company with one copy make any copies or other reproductions of the of the System. System. Company is not 4. PRICE. Charges for the license granted hereunder and each additional license are set forth in Exhibit A.2. Company agrees to pay Bank any other applicable charges or costs at Bank's standard rates then in effect, upon invoice therefor. 5. COMPANY HARDWARE. Company agrees to obtain, install and maintain in good working order, at Company's expense, the computer hardware and equipment described at Exhibit A.3 (the IIHardware"). Company acknowledges and agrees that the correct installation and maintenence of the Hardwere is a necessary prerequisite for the proper functioning of the System. 6. DELIVERY/INSTALLATION/ACCEPTANCE. The System shall be delivered to Company at Company's designeted site efter Bank's execution of this Agreement and Company shall install the System on the hardware at company's expense. If company requires the assistance of bank in completing such installetfon it shalL notify Bank: and agrees to compensate Bank for Its services at the rate communicated by Bank in advance. The System shall be deemed to have accepted by Company if Company fails to notify Bank of any errors or defects in the System within sixty (60) days after delivery. If Company gives Bank written notice that the System is not operating satisfactorily on Company's Hardware within such Sixty (60) day period, Bank shalL provide Company with a new copy of the System. If Company gives Bank written notice within thirty (30) days that the new copy of the System is not operating satisfactorily on Company's Hardware, Bank in its discretion, shall either replace the System or terminate this Agreement. Upon such termination Company shall return aLL copies of the System and, upon receipt of same, Bank shall refund to Company all license fees it has received. 7. TRAINING. On-site end off-site training and instruction on the operation of the System shall be provided as eveflable upon Company's request, at Bank1s rates set forth at Exhibit A.2, plus reasonable travel costs and out.of-pocket expenses for each Bank employee assigned to do such treining. Company agrees to pay for such training upon receipt of Bank's invotce therefor. 8. DISCLAIMERS. Bant represents that it has operated the Syste. at Bank's location in a production environ.ent and that the Syste. perforM. to Bank's satisfaction. COMPANY ACKNOVlEDGES AND AGREES THAT COMPA.Y ACCEPTS THE SYSTEM -AS IS-. AND THAT EXCEPT FOR BANK'S REPRESENTATION THAT IT HAS THE RIGHT TO LICENSE THE USE OF THE SYSTEM, BANK MAKES 10 WARRANTIES, EITHER EXPRESS OR IMPLIEO, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHAITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AIY REPRESENTATION OR WARRANTY AS TO PATE IT OR COPYRIGHT IIFRIIGEMENT. ALL OTHER REPRESENT WARRAITIES ARE HEREBY EXPRESSLY DISCLAIMED. 9. REMEDIES. Regardless of the form or nature of any claim, the sole remedy of Company for damages shall be a return of all copies of the System to Bank in exchange for a refund of all license fees paid by Company. In no event sh'!!ll Rs!"!": I:<e lieble for ir.:::ldent<.:::l or consequential damages, whether or not Bank has been edvised of the possibility of such damages, in connection with or arising out of the fur,nishing, performance or use of any service or products hereunder. 10. PROPRIETARY RIGHTS. Company acknowledges that the System is the original, confidentiel, vaLuable and proprietary product of P&H, 'Which has licensed the System to Bank with right to sublicense, to Company, and that "company has only the right to use the System consistent with the te~ms of this Agreement. Company has no right of ownership in or to the System and, may not transfer, copy, alter, modify, reverse engineer, reproduce or convey in any manner, in whole or in part, the System. ... 92-363 . 1T. CONFIDENTIAL INFORMATION. Except as otherwise expressly provided in this Agreement, Company shall not discLose or make available the System or any Bank security codes or keys ("ConfidentiaL InformationU) in any form to any person other than persons in Company's empLoy to whom it shall be necessary to do so in order for Company to use and operate the System. Company shall not copy, reproduce, discLose or distribute the Confidential Information in whole or in part, in any form without obtaining the prior written authorization of Bank. Company shall exercise care at least equal to that which it exercises to keep confidential its own proprfetBry and confidential information to keep confidential and prevent the unauthorized reprOduction, pUblication, disclosure or distribution of the Confidential Information. Such copies or reproductions in any form of the Confidential Information as Bank may approve, inclUding partial copies, shall be identified and marked clearly as the property of P&H or of Bank, as Bank shall direct. '. ~ 12. TERMINATION. The license granted hereby shall be valid and effective from the date Bank executes this Agreement and shaLL continue effective until terminated at any time by ei.ther party, with or without cause, upon written notice to the other party. Immediately upon termination of thfs license, Company shall cease making use of the System and shall return it to Bank, together with aLL System copies or reproductions in any form, within five (5) business days of termination. The obligations of Company under Section 10, "Proprietary Rights" and Section 11, "Confidential Information", shall survive the termination of this Agreement. 13. ASSIGNMENT/AMENDMENT/WAIVER. Company's rights under this Agreement may not be assigned, licensed, or otherwise transferred by operation of Law or otherwise, without the prior written consent of Bank. This Agreement may be modified or amended only by writing signed by both parties. A waiver of any term or provision shall not be construed as a waiver of such term or provision at any other time, or of any other term or provision. 14. NOTICES. All notices required to be given hereunder shall be in writing and shall be deemed to be given when deposited in the u.s. Mail, postage prepaid, or by telegraph or telex when delivered to the appropriate office for transmission, charges prepaid, addressed as follows: COMPANY: BANK: City of San Bernardino FIRST INTERSTATE BANK OF CALIFORNIA 1200 W. 7th Street Los Angeles, Cal ifornia 90017 Attention: BMD Product Management 300 North D Street San Bernardino, CA 92418 15. GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Dated: September 10 19~ Dated: vtr'J?7/1M./ 1/ 19~ CITY OF SAN 0 ::MCNYa Valerie Pope-Ludlam Tit 1 e Mayor Pro Tempore FIRST INTERSTATE BANK OF CALIFORNIA By 4;~~~o!dd~.aJ T i tl e Vice President and Manager Title Tit 1 e . ,I .' 92-363 d I EXHIBIT A ACTION ACH < A.1 REQUIRED SOFTWARE AND DOCUMENTATION. In order to Access the ACH Auto Cash Transfer System the fotlowing software and documentation is required. Auto Cash Transfer System Version 1.1 Customer Disks 1, 2 and 3 referred to as Auto Cash Transfer (ACT) Disk 1, Disk 2 and Disk 3. Auto Cash Transfer System Version 1.1 User Manual. A.2 ACH AUTO-CASH TRANSFER SYSTEM PRICING: ACH AUTO - CASH TRANSFER SYSTEM LICENSE S800.00 AdditionaL Training (per hour) 50.00 A.3 COMPANY HARDWARE. In order to obtain, install and maintain equipped with the following: to use the ACH AUTO-CASH TRANSFER SYSTEM, Company'agrees in good working order an IBM PC compatible computer Preferred Configuration: 640K of Memory One Floppy Disk Drive with one fixed hard disk with 20M9 Bytes of storage Hayes Compatible 1200/2400 Baud Modem, or V-Series Smartmodem 2400B (Internal) 25 Pin EtA Straight Through Cable MS Dos 2.1 or higher operating system Printer. If you want to print out the System's reports Color Monitor ml91989 7/90 ~.~ " L___