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8I Consent 2007 1217
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8I Consent 2007 1217
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12/14/2007 2:02:12 PM
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12/14/2007 2:02:11 PM
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CM City Clerk-City Council
CM City Clerk-City Council - Document Type
Staff Report
Document Date (6)
12/17/2007
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_CC Agenda 2007 1217
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9.4 Any claim, action or proceeding against Bank for losses or damages arising from a Service, inGuding Bank's <br />honoring or dishonoring a check covered by a Service, must be brought within one (1) year from the date of <br />the act or omission or in the case of a check from the date the check was first paid or returned by Bank. <br />9.5 Bank will have no liability for failure to perform or delay in performing a Service if the failure or delay is due <br />to circumstances beyond Bank's reasonable control. <br />9.6 Except in the case of Bank's gross negligence or intentional misconduct, Company shall indemnify and hold <br />Bank, its directors, officers, employees and agents harmless from all losses or damages that arise out of a) <br />the performance of a Service in accordance with the Service Documentation including without limitation any <br />warranty Bank is required to make to a third party in connection with a Service; b) an act or omission of any <br />agent, courier or authorized representative of Company; c) if the Service inGudes a license or sublicense of <br />any software to Company, the use or distribution of the software by Company or any person gaining access <br />to the software through Company that is inconsistent with the license or sublicense; and d) Company's <br />failure to secure aback-up means of transmission for data transmissions using leased lines or VANS as set <br />forth in Subsection 7.3 above <br />9.7 Bank will only be liable to Company for its direct monetary losses or damages due to Bank's negligence or <br />breach of this Master Agreement. Except in the case of Bank's gross negligence or intentional misconduct, <br />Bank's liability to Company will be limited to an amount not to exceed ten (10) times Bank fees incurred <br />during the calendar month immediately preceding the calendar month in which such loss or damages were <br />incurred (or, if no Bank fees were incurred in such month, Bank fees incurred in the month in which the <br />losses or damages were incurred). In no event will either party to this Master Agreement be liable to the <br />other party for any special, consequential, incidental (including without limitation court costs and attorneys' <br />fees), indirect, or punitive losses or damages, whether any claim is based on contract or tort, or whether the <br />likelihood of such losses or damages was known to the other party and regardless of the form of the claim or <br />action. <br />10. General. <br />10.1 The Service Documentation will be governed by substantive federal laws, regulations and rules and, to the <br />extent such laws, regulations and rules are not applicable, those of the state in which the principal office of <br />the Bank identified on the Acceptance is located, without regard to conflicts of laws principles. Any portion <br />of the Service Documentation which is inconsistent with applicable laws, regulations or rules will be deemed <br />modified and applied in a manner consistent therewith, and Bank will incur no liability to Company as a <br />result of the inconsistency or modification and application. If any portion of the Service Documentation is <br />deemed unenforceable or invalid, it will not otherwise affect the enforceability or validity of the Service <br />Documentation. <br />10.2 The Service Documentation is the entire agreement between Bank and Company and supersedes all prior <br />representations, conditions, warranties, understandings, proposals or agreements regarding a Service. No <br />course of dealing or waiver of any right on one occasion will constitute a modification of the Service <br />Documentation or be a waiver of that right on a subsequent occasion. <br />10.3 Company agrees to provide Bank promptly upon Bank's request any existing financial statements or other <br />information pertaining to Company's financial condition or any previously unprepared financial statements <br />which Bank may require Company to prepare and/or to be audited or reviewed by independent certified <br />public accountants acceptable to Bank. <br />10.4 Company expressly warrants that a Service will not be used in a manner which violates any federal or state <br />law including without limitation any sanction or control administered by the Office of Foreign Assets Control <br />or Bureau of Export Administration. <br />10.5 Sections 4, 5, 6, 8, 9, 10.4 and 10.5 of this Master Agreement will survive termination of this Master <br />Agreement. <br />10.6 Either party may provide notice to the other party by mail, personal delivery, or electronic transmission. <br />Bank shall use the most recent address for Company in Bank's records, and any notice from Bank will be <br />effective when sent. Company shall use the address where Company's relationship manager or other <br />manager is located and address any notice to the attention of such manager. Any notice from Company will <br />be effective when actually received by Bank. Bank will be entitled to rely on any notice from Company that it <br />believes in good faith was authorized by an authorized representative of Company and, except as expressly <br />stated in the Service Documentation, shall have no obligation to verify the signature (including an electronic <br />signature). Each party will have a reasonable time after receipt of any notice to act on it. <br />Master Agreement TM-1450 revised4/2005 Page 3 of 4 <br />
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