REMOTE DEPOSIT CAPTURE SOLUTIONS – ADDENDUM
- Service. Bank agrees to supply the merchant remote deposit service, (“Service”) and Bank Equipment/Software (“Equipment”), to the Client, and both parties agree to abide by the provisions set forth in this Agreement.
- Term and Termination. The term of this Service shall commence on the Effective Date and shall continue thereafter until terminated by either party upon 30 days advance written notice to the other party, unless otherwise terminated as provided herein. Bank may terminate this Service upon ten (10) days written notice for Client’s failure to pay Bank any amount due to Bank under this Agreement, if such breach is not cured within such ten (10) day period. Bank may terminate this Service immediately by giving written notice if Bank discovers any willful misconduct (including bad checks or fraudulent activities) on the part of Client or any other party with respect to Checks or Electronic Items processed by Client. Any termination will not affect obligations occurring prior to termination, such as the obligation to process any Checks and Electronic Items, including returned Electronic Items that were in the process of being transmitted or collected prior to the termination date. Within thirty (30) days after termination of this Service, each party will return or destroy all copies of the Confidential Information of the other party, and Client will remove all copies of the Software from designated PC and destroy all Documentation in its possession or under its control. Upon request, each party shall certify in writing that it has returned or destroyed all such copies. Upon termination of this Service, Client will keep its Account at Bank open until the later of (i) sixty (60) days after the date of termination, or (ii) final payment with respect to all processing fees, and will keep in such Account an amount sufficient to cover any remaining outstanding checks. If any such outstanding checks or returned items exceed the amount in the Account, Client will pay such excess to Bank upon demand. Client will also continue to retain Checks and forward Checks to Bank as provided in this Agreement.
3. Bank’s Responsibilities
(a) Bank will deliver to Client, or otherwise provide access to, the Software and Equipment.
(b) Bank will provide installation and training support as reasonably required for Client’s implementation of the Program.
(c) Bank will provide support for the process as reasonably necessary to permit Client’s processing of Checks through the Program. Such support shall include (i) corrections and work around, (ii) such modifications, enhancements and updates as Bank elects to make generally available to its clients
without additional license fees, and (iii) telephone support to Client during Banks’ regular business hours. Equipment maintenance is provided through Bank’s process for an annual fee as described in Schedule A or Schedule C.
(d) Bank will accept for deposit to the designated Client account, (“Account”) digitized images of Checks that are transmitted to Bank in compliance with this Agreement. Digitized images shall be deemed received upon successful receipt of the transmission of such images that are complete, usable, and adhere to the data specifications set forth in the documentation. If the digitized images are not complete, are not usable, or do not adhere to such data specifications, the images may not be processed by Bank or its agents, in which event Client’s deposit will be adjusted and notification will be provided.
(e) Bank will provide Client an electronic notification of Client’s transmission of digitized images as
outlined in the Documentation.
(f) Client’s digitized images will be processed after Bank has received Client’s transmission of the digitized images. Bank will use commercially reasonable efforts to present items for collection. Unless Bank notifies Client otherwise, Bank will provide credit to the Account for all items transmitted by Client and received by Bank in accordance with the requirements of this Agreement and the Documentation, and within the timelines established by Bank.
(g) If a Payor Financial Institution returns an item to Bank unpaid, Bank will charge the Account for such returned item, and may either (i) return the item to Client, or (ii) re-present it to the Payor Financial Institution before returning it to the Client. Items may be returned as Image Exchange Items, rather than IRDs, as agreed by the parties. If a Payor Financial Institution or other third party makes a claim against Bank or seeks a re-credit with respect to any Electronic Item, Bank may provisionally freeze or hold aside a like amount in the Account pending investigation and resolution of the claim.
(h) Bank may immediately suspend the Client Services or the processing of any Electronic Item if Bank has reason to believe that there has been a breach in the security of the Program, fraud involving Client’s Account, or any uncertainty as to the authorization or accuracy of Electronic Items. Bank reserves the right at any time to process Electronic Items on a collection basis.
4. Client’s Responsibilities
(a) Client will maintain an Account at Bank for the receipt of deposits of digitized images of Checks, in accordance with applicable Account Agreements.
(b) Client will install the Software in accordance with the Documentation, and will implement any changes and upgrades to the Software as Bank may require, within thirty (30) days of receipt of such change or upgrade, or within such shorter time frame as Bank may reasonably require in the event such change or upgrade is necessary to comply with statutory or regulatory changes or developments, or to protect the integrity and security of the Program.
(c) Client may use only Bank-approved Equipment in connection with the Program. Client, and not Bank, shall be responsible for maintaining all Equipment. Client will be responsible for maintaining any interface software used in connection with the Equipment. Equipment maintenance is provided through Bank’s process
(d) Client will use the Software, including the entering, processing and transmittal of items, in accordance with the Documentation. With limiting the foregoing, Client will comply with all security procedures described in the Documentation, and will not bypass, override or disable any security mechanisms in the Software.
(e) Client will inspect and verify the quality of images daily, and ensure the Equipment is clean and
operating properly and that Check images when scanned are legible for all posting and clearing
(f) Client will be responsible for training its employees in the use of the Program.
(g) Client will (i) disclose to each Drawer that (A) the Drawer’s Check will be converted into a digitized image which will be used for deposit processing by Bank using the Program, and may be presented for payment as an Image Exchange Item, IRD or other Electronic Item to the Payor Financial Institution, and (B) the Drawer will not receive back the original paper version of the Check; and (ii) obtain the Drawer’s agreement thereto. Client will also provide each Drawer an alternative payment method if the Drawer will not authorize its check to be converted to a digital image for processing through the Program.
(h) Client will ensure that neither the Check, nor any Electronic Item or other digitized image of the Check, will be presented for payment such that an endorser, depositary bank, Payor Financial Institution, or the Drawer will be asked to make a payment twice with respect to the Check, including without limitation by placing such restrictive endorsement on Checks, or voiding Checks, as Bank may reasonably require.
(i) Client will retain each Check for a reasonable period of time, but in no event fewer than fourteen (14) days after such Check has been digitized and processed. Client will promptly provide any retained Check (or, if the Check is no longer in existence, a sufficient copy of the front and back of the Check) to Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check. Client will use a commercially reasonable method approved by Bank to destroy Checks after the Client’s retention period has expired.
In the event of lost, mistaken, incomplete or unusable Electronic Images, or in the event of claims of fraud, alteration, counterfeit or otherwise, Client shall cooperate fully with Bank in providing information, including access to such records.
(k) Consider security measures whether they are dual control methods or other means to limit client and bank exposure. Recommendations may include but are not limited to the following:
- Never leave checks that have been remotely deposited unattended on a desktop or in the open.
- Track the destruction of checks so that client can identify which checks (at least by date deposited) were destroyed on which date.
- Destroy checks by shredding. Never place checks un-shredded in recycling boxes to be taken away for offsite recycling.
- Checks should be stored in a locked device, such as a lockable file, safe, etc. (preferably) under dual control, so that two persons are required for access).
- Physical access to hardware, software, data, and systems documentation will be restricted to
- USER ID and Password is confidential and should not be disclosed to anyone.
All Sections of this Agreement which are intended by their terms to survive termination of this Service will survive any termination of this Agreement.
- Network Access Fees: An initial and monthly access fee may be assessed to the client, pursuant to Fee Schedule attached hereto, as compensation to Bank for the provision of training and installation of the equipment, access to the service through Bank’s remote deposit service vendor, and Bank’s client support.
- Transaction Fees. A transaction fee will be assessed to the Client for each deposit item processed through the Service, pursuant to Fee Schedule attached hereto. A transaction is defined as a check or any other depository item which is processed via the service.
- Other Costs. Client will be responsible for all telecommunications-related costs as well as the costs of any equipment or supplies necessary to access the Service. Bank will not be obligated to supply any special equipment (e.g., electrical outlets, telephone outlets, surge protectors, extension cords) necessary to operate any service.
- Fees: Client will pay Bank service fees as set forth in Bank’ schedule of fees. Bank reserves the right to change fees from time to time upon thirty (30) days prior written notice. Client shall be responsible for and pay all sales and other taxes applicable to this Agreement and imposed by any governmental authority, including without limitation any sales, use, and other taxes associated with the Program, except income taxes of Bank, including all applicable excise, property, value-added, sales or use, or similar taxes, any withholding taxes, national pension or other welfare taxes, customs, import, export, or other duties, levies, tariffs, taxes, or other similar charges. Bank may charge to the Account all fees and taxes imposed on Bank that are the responsibility of Client.
- Payment. Invoices are payable upon receipt. If not paid within thirty (30) days from date of invoice, Bank may, in its sole discretion, immediately terminate this agreement and Client’s access to the service without prior notice. Regardless of whether Bank exercises this termination right, Bank will assess and Client agrees to pay a finance charge equal to 1.5% per month (18%) per year on all outstanding balances 31 days and older. Client shall be responsible to Bank for all costs incurred by Bank to collect any outstanding balances due Bank, including but not limited to, reasonable attorney’s fees and court costs. The charges applicable to the Service do not include sales, use, excise, or similar taxes. Consequently, in addition to the specified charges, Client is solely responsible for and agrees to pay amounts equal to any such taxes resulting form this Agreement or any activities hereunder. In the event any dispute arises involving any of the items contained in Bank’s invoice, Client agrees to promptly notify Bank of said dispute but will not withhold payment. Bank shall investigate such disputed items within fifteen (15) days and promptly notify client of the findings of its investigation.
- Ownership. Under all circumstances, Client shall retain ownership of the Equipment used for the Service. Upon termination of this Agreement by either party for any reason, the Equipment shall remain in the possession of the Client as established by Bank.
- Deposited Items. All checks deposited through the remote deposit service will be deposited under the provisions of the current Client deposit agreement with Bank. In addition, Client agrees to follow Automated Clearing House Rules and Regulations and the provisions of The Check Clearing for the 21st Century Act for all checks deposited where applicable. Client agrees that all checks will not be deposited through the remote deposit service more than once and the original checks will be securely stored then destroyed within 45 days from the date of deposit unless otherwise agreed to in writing. Client also agrees to review and validate the accuracy of the check data captured including the amount of the check and the legibility of the check image through the remote deposit service. Client agrees to only deposit checks drawn on United States financial institutions through the remote deposit service.
- Warranty. Bank warrants that, upon delivery, the Equipment provided will conform to Bank’s then current applicable standard. Bank at its own expense, will repair or replace any nonconforming Equipment during the initial 90 days of this Agreement, provided that: (1) the deficiency is attributable solely to Bank and (2) Client notifies Bank of the alleged deficiency within fifteen (15) days of its occurrence. Bank will not be responsible in any manner for any deficiency caused in whole or in part by inaccurate or otherwise deficient data programs, equipment or communication facilities provided by Client or third parties other than Bank. Client shall bear the entire risk of loss, theft, damage or destruction of Equipment from the date of installation until return shipment FOB to Bank. Such loss, theft, damage or destruction of equipment shall not relieve Client of the obligation to make payments or to comply with any other obligation under this Agreement.
THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
- Confidentiality. Client, its employees, vendors and clients each recognize, acknowledge, and hereby agree that all information or data provided through the Service will be treated as confidential and proprietary and shall not be used or disclosed, in whole or in part, to any person, firm, corporation, association, or other entity, except as provided for in this Agreement or as required by law.
- Third Party Services. Client acknowledges that, in providing the Service hereunder, Bank may utilize and rely upon certain third-party service providers (“TPSP’s”) to provide database storage, database access, switching and other data communications services to Bank. The Client further acknowledges and agrees that the Client’s rights under this Agreement shall be solely and exclusively against Bank, and the Client shall have no right or recourse against any TPSP hereunder whatsoever, and hereby waves any and all such rights of recourse, directly or indirectly, against any TPSP, the state of Maryland and the Federal Deposit Insurance Corporation.
In no event will Bank be liable for any damages caused by the Client’s failure to perform Client’s responsibilities, or for any indirect or consequential damages, including, but not limited to, loss of profits or anticipated savings, or for any claim made against Client by an employer, employee, agent, or any other party.
- Bank Liability. Bank will not be liable to Client for any of the following, unless liability or loss is a result of Bank’ breach of this Agreement or the gross negligence or willful misconduct of Bank or its employees or agents: (i) any damages, costs or other consequences caused by or related to Bank’ actions that are based on information or instructions that Client provides to Bank; (ii) any unauthorized actions initiated or caused by Client or its employees or agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom Bank has delegated the performance of specific obligations provided in this Agreement; (iv) any refusal of a Payor Financial Institution to pay an Electronic Item for any reason (other than the breach of contract, negligence or willful misconduct of Bank), including without limitation, that the Check or Electronic Item was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) any other party’s lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) any stolen and / or compromised private or confidential information; (viii) any of the matters described in Section 9 above Bank’s liability for errors or omissions with respect to the data transmitted or printed by Bank will be limited to correcting the errors or omissions. Correction will be limited to reprinting and/or representing Electronic Items to the Payor Financial Institution. Notwithstanding anything to the contrary in this agreement, Bank’ aggregate liability to client for claims relating to this agreement, whether for breach, negligence, infringement, in tort or otherwise, for any twelve month period shall be limited to an amount equal to the total fees paid by client to Bank for such twelve month period. In no event will Bank be liable for any consequential, indirect, incidental, special or punitive damages, or any lost profits or loss of any opportunity or good will, even if Bank has been advised of the possibility of such damages. Client acknowledges and agrees that Bank would not enter into this agreement without the limitations of liability set forth in this section.
- Exclusion of Warranties. Bank’s representations, warranties, obligations and liabilities, and client’s rights and remedies, set forth in this agreement are exclusive. Client waives and releases, and Bank disclaims, any other representations, warranties, obligations, and liabilities, express or implied, arising by law or otherwise, with respect to any and all matters arising under or in connection with this agreement, including without limitation: (i) any implied warranty of merchantability, fitness for a specific purpose or other implied contractual warranty; and (ii) any implied warranty arising from course of performance, course of dealing, or usage of trade and any other warranty with respect to quality, accuracy or freedom from error. Without limiting the generality of the foregoing, Bank does not warrant that operation of the software will be errorfree or uninterrupted.
- General. This Agreement is not assignable or transferable by either party without the other party’s written consent. Client agrees to use the Equipment in a manner consistent with the terms of this Agreement. Clients are prohibited from using any Equipment provided hereunder in another fashion, manner, or use. Bank reserves the right, with the appropriate governmental approval, if applicable, to change the service as it may deem necessary or desirable. Bank reserves the right, without penalty or liability, to withdraw or discontinue any Service from a client who causes a system to malfunction or from a client who fails to make changes which Bank determines, in its sole discretion, would prevent future malfunctions. Bank reserves the right to service, repair, exchange, test, and perform reasonable and occasional quality assurance exams on all Equipment, if deemed necessary by Bank, both on and off the Client’s premise(s) throughout the duration of the Agreement. Such exams shall not exceed a frequency of one (1) per month unless mutually agreed upon by both parties. Bank reserves the right to process test system inquiries on Client’s behalf and at Client’s expense in order to monitor network performance and Quality Assurance. After the initial installation of the Equipment, any relocation thereafter must be approved and/or performed by an authorized Bank representative. Failure to comply will constitute grounds for termination of this Agreement and immediate repossession of all Equipment. Bank shall not be liable for delays in performance under this Agreement or for failure to perform hereunder by reason of any third party’s failure to provide Bank with the data necessary for complete and proper transmission of the Service. In the event that Bank shall be delayed, hindered in or prevented from the performance of any work, service of other acts required of Bank under this Agreement due to strikes, walk-outs, telecommunications equipment and power failures, government restrictions, civil commotion, riots, acts of terrorism, acts of war, fire, or acts of God, all of such activities being beyond the control of Bank, then performance of such work, services, or other acts shall be excused for a period of such delay and the period for performance of such work, services, or other acts shall be extended for a period equivalent to the period of such delay. No action, regardless of form, arising out of this Agreement may be brought by either party hereto more than one year after the event giving rise to the cause of action except in the case of nonpayment, in which the applicable statute of limitation for collection actions will be applicable. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
This Agreement represents the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes all prior oral and written communications between the parties. No provision of this Agreement shall be modified unless in writing and signed by an authorized representative of Bank and Client. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remaining provisions shall continue to be of full force and effect.
- ACKNOWLEDGEMENT As a requirement to be considered for approval, I/We understand that we must abide by all applicable laws, rules, regulations, operating circulars regarding Remote Deposit Capture. The Bank has permission to investigate the character and credit worthiness of the business, and the nature and operation of the business, to the same extent as if borrowing an amount equal to the amount of all RDC entries to me made during the month.
Remote Deposit Capture Check Retention Information
- Client will (i) disclose to each Drawer that (A) the Drawer’s Check will be converted into a digitized image which will be used for deposit processing by Bank using the Program, and may be presented for payment as an Image Exchange Item, IRD or other Electronic Item to the Payor Financial Institution, and (B) the Drawer will not receive back the original paper version of the Check; and (ii) obtain the Drawer’s agreement thereto. Client will also provide each Drawer an alternative payment method if the Drawer will not authorize its check to be converted to a digital image for processing through the Program.
- Client will ensure that neither the Check, nor any Electronic Item or other digitized image of the Check, will be presented for payment such that an endorser, depositary bank, Payor Financial Institution, or the Drawer will be asked to make a payment twice with respect to the Check, including without limitation by placing such restrictive endorsement on Checks, or voiding Checks, as Bank may reasonably require.
- Client will retain each Check for a reasonable period of time, but in no event fewer than fourteen (14) days after such Check has been digitized and processed. Client will promptly provide any retained Check (or, if the Check is no longer in existence, a sufficient copy of the front and back of the Check) to Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check. Client will use a commercially reasonable method approved by Bank to destroy Checks after the Client’s retention period of no more than 90 days has expired.
- In the event of lost, mistaken, incomplete or unusable Electronic Images, or in the event of claims of fraud, alteration, counterfeit or otherwise, Client shall cooperate fully with Bank in providing information, including access to such records.
- Consider security measures whether they are dual control methods or other means to limit client and bank exposure.