Onyx Private Consumer Deposit Account Agreement
Last updated: November 3, 2023
Please read this Onyx Private Deposit Account Agreement (the “Agreement”) carefully and retain it foryour future reference. This Agreement contains the general terms, conditions, and disclosures related tothe interest-bearing demand deposit account (the “Account”) issued by i3 Bank, a bank chartered underthe laws of the State of Nebraska (the “Bank”) and a member of the Federal Deposit InsuranceCorporation (“FDIC”). Onyx Card, LLC (“Program Partner”) is responsible for managing the Accountprogram on behalf of Bank.
By opening and continuing to hold an Account with us, you agree to be bound by this Agreement,including any updates (see Section 8.6). This Agreement becomes effective when you open or use anAccount or allow it to be used or, if this Agreement is provided to you to replace a previous agreementgoverning your Account, as set forth in Section 9. You do not need to sign this Agreement.
You agree to be responsible for all uses of your Account(s). The agreement you make with us, and therights and obligations we both have, are governed by and will be interpreted according to Nebraska andfederal law. This Agreement, together with other agreements or disclosures you may receive from us orProgram Partner, establishes our and your rights and obligations.
When you see the words “we,” “us,” or “our” in this Agreement, it refers to Bank, the Program Partneracting as agent for the Bank, any of Bank’s affiliates, successors, or assignees. When you see the words“you” or “your,” it refers to the individual who opens an Account and in whose name an Account ismaintained on our records, any joint owner of each Account, any Authorized User, and any otherauthorized agent. When you see the word “person,” it includes both natural persons and legal entities.When you see references to an Account (including the use of or authorization to use an Account), itincludes the Account, Account number, and any associated debit card, debit card number, and debit cardperson identification number (“PIN”).
IMPORTANT NOTE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASSACTIONS AND YOUR RIGHT TO A JURY. THE TERMS OF ARBITRATION AND THE WAIVER APPEAR IN THESECTION OF THIS AGREEMENT TITLED “ARBITRATION AND WAIVERS” BELOW.
1 Account Overview
1.1 How to Contact Us
You may contact us with any questions or concerns regarding your Account, including to access yourstatements and transaction history. Most communication between you and us will be handled by theProgram Partner.
For all questions and concerns other than those described in the following paragraphs, you should emailus at firstname.lastname@example.org or contact us via phone or in-app chat on the Online Banking platform.Phone support is available Monday-Friday 9:00am to 6:00pm EST at (855) 435-4595, excluding Federalholidays. Automated support is available 24 hours a day, 7 days a week. Card support is available 8:00amto 8:00pm EST.
For questions or concerns about any debit card-related transactions; if your debit card, debit cardnumber, or PIN is lost, stolen, or misplaced; [or if you would like us to stop a recurring debit to your debitcard], please contact us at 1-833-333-0417.
For questions or concerns about the sweep program, please contact us at email@example.com. To optout of mandatory arbitration, please contact us at firstname.lastname@example.org.
1.2 Account Type; FDIC Insurance; Eligibility
The Account is an interest-bearing demand deposit account used to hold your deposits and make certaintypes of payments and transfers.
When we receive the funds that you deposit to your Account, the funds will be held and accounted forso as to be eligible for FDIC insurance, subject to applicable limitations and restrictions of suchinsurance. Your deposits at i3 Bank become eligible for FDIC insurance up to $250,000, inclusive of anyother deposits you may already hold at i3 Bank in the same ownership capacity.
We offer three (3) types of Account Membership Plans: Onyx Premium Plan, Onyx Plus Plan, and OnyxBasic Plan.
The Program Partner provides priority support and services to Onyx Premium Plan users. Please visithttps://www.onyxprivate.com/onyx-membership for more information on Account Membership Plans.
To become eligible for the Onyx Premium Plan, the first deposit to your Account must be at least fivehundred dollars ($500), and you must pay the Premium Plan membership fee provided in Section 3.16.You also must maintain a minimum balance of one hundred dollars ($100) in the Account.
To become eligible for the Onyx Plus Plan, the first deposit to your Account must be at least one hundreddollars ($100), and you must pay the Plus Plan membership fee provided in Section 3.16. You also mustmaintain a minimum balance of one hundred dollars ($100) in the Account.
To become eligible for the Onyx Basic Plan, the first deposit to your Account must be of one hundreddollars ($100).
Unless otherwise stated in this Agreement, all terms contained in this Agreement apply equally to allAccount Membership Plans.
To open an Account, you must be a United States citizen or lawful permanent resident, have a physicaladdress within the fifty (50) United States, the District of Columbia, a U.S. territory, or a military address(APO or FPO), be at least 18 years of age, and have a valid Social Security Number or Tax IdentificationNumber. Other eligibility requirements may apply.
This Account is only available to individuals for personal, family or household purposes and may not beopened by a business in any form or used for business purposes.
We may set such eligibility criteria or decline to open an Account for any reason permitted by law and atour sole discretion. We are not liable for any Losses (as defined below) resulting from refusal of anAccount relationship. We may also limit the number of Accounts that you have in our sole discretion.Your Account is subject to security and fraud prevention restrictions at any time, with or without notice.
1.3 Online or Mobile Access To Your Account
When you open an Account, you may also have enrolled in an online banking service or mobileapplication (collectively, “Online Banking Services”) offered by the Program Partner that you can use toaccess your Account, view information about your Account and conduct certain transactions. You mayalso be given access to various features through the Online Banking Services separate from yourAccount. If you cancel your enrollment in the Online Banking Services at any time, we may close yourAccount as detailed below.
1.4 Paperless Account
To open an Account, you must agree to go “paperless.” This means that you must (a) provide us with andcontinue to maintain a valid email address and (b) accept electronic delivery of all communications thatwe need or decide to send you in connection with your Account by agreeing to the Program Partner’sESIGN Consent Document, located here:https://www.onyxprivate.com/legal/consent-electronic-disclosures.
1.5 Joint Accounts
We and the Program Partner may, in our respective discretion, allow for the joint ownership of yourAccount.
“Joint Accounts” are Accounts that are owned by two people. All deposits made into a Joint Account areowned by both people. Joint Accounts are not community property and are not held as tenants incommon. Funds in Joint Accounts are payable to or at the direction of any accountholder (regardless ofwho contributed the funds or the amount each accountholder contributed). For all Joint Accounts,except for certain retirement benefits like Social Security, if one person dies, the money in the JointAccount then belongs only to the survivor and not to the estate of the deceased person. The owners ofthe Joint Account are considered “joint tenants” with right of survivorship.
Any owner of a Joint Account may: (a) tell us to pay a person or company; (b) withdraw, transfer funds,or close the Joint Account without the other owner's consent; (c) pledge the Joint Account to us ascollateral for a debt owed to us; and/or (d) deposit checks payable to any joint owner. In addition, wemay pay all or any part of the funds in a Joint Account to a court or government agency if we receive agarnishment, levy, or similar legal process that identifies any of the Joint Account owners.
Your liability as an owner of a Joint Account is joint and several. This means that we can enforce thisAgreement against, as well as seek repayment of any amount owed from, any one of you, some of you,or all of you, including for any overdrafts.
Each Joint Account owner can enter a stop payment order on any payments or other orders ofwithdrawal, even if authorized by the other accountholder. If one joint owner requests that we not payitems authorized by a different accountholder, we may restrict the Account and refuse to pay all items(including items authorized by the owner making the request), but we are not required to do so. If werestrict the Account, we may not release the restriction unless all Joint Account owners agree in writingto remove it. No request to restrict the Joint Account will affect items that we paid before the request. Ifwe decide not to restrict the Account, all joint owners remain responsible for items paid from theAccount.
1.6 Authorized Users
You may be given the ability to designate individuals (“Authorized Users”) who you authorize to accessyour Account and/or conduct transactions through your Account. If so, that right includes theresponsibility to determine the scope of rights and capabilities that the Authorized User will have withrespect to your Account and to establish appropriate controls to ensure the Authorized User’s activitiesremain within the authorized scope. If you permit another person to have access to your Accountnumber, debit card number, PIN, Online Banking credentials (including passwords), or other Accountinformation, we will treat this as if you have authorized such person to Access your account, and you willbe liable for all transactions and fees incurred by such person, even if they exceed the authorizationgranted.
By adding an Authorized User, you understand that any transaction authorization, instruction, or anyother action concerning your Account that your Authorized User engages in will be deemed authorizedby you and valid, even if it exceeds the authorization you granted, and we are under no obligation toinvestigate the authorization, instruction, or activity. You agree that are responsible for all authorizedtransactions initiated and fees incurred by use of any of your Account. Transactions will be consideredunauthorized only after you notify us that the person is no longer authorized to use the Account asdescribed below. To the fullest extent permitted by applicable law, you hereby waive demand,presentment, protest, notice of protest or dishonor, and all other notices relating to any instrumentmade, drawn, or endorsed in your name, when such instrument is signed, accepted, or endorsed by anAuthorized User, and agree that you will not hold us liable for acting upon any such authorization,instruction, or activity.
We reserve the right to terminate any Authorized User’s access to the Account for any reason andwithout advance notice.
We may ask you to provide additional documentation evidencing an Authorized User’s authority to takeactions with respect to the Account.
You must notify us immediately of any change in the status of any Authorized User. We will continue totreat all actions taken by an Authorized User as authorized by you until you revoke the Authorized User’saccess to your Account by notifying us using the contact information in Section 1.1. Until we have beenproperly notified in writing of any change in such authorization and we have had a reasonable period oftime to act upon such notice, we may pay, apply, or otherwise honor and charge your Account, withoutinquiry, without limit as to amount, and without regard to the application of the proceeds thereof allorders for payment or transfer of money for whatever purpose. No action taken by us before we receiveproper notification in writing of any such change and have had a reasonable period of time to act uponsuch notice will be affected by any such notice.
1.7 How To Open an Account
You may open an Account by visiting the Program Partner’s website at https://www.onyxprivate.com/and following the instructions there.
You may also open an Account by downloading the Onyx Private mobile application from the Apple Storeor Google Play Store and following the instructions within the application.
Each person completing the Account opening process or any Account opening requirements representsand warrants that he, she, or they:
1.8 Minimum Deposits and Balances
You must deposit five hundred dollars ($500) into your Account to become an Onyx Premium Plan user.You also must pay the Onyx Premium Plan membership fee provided in section 3.16 and maintain aminimum balance of one hundred dollars ($100) in your Account to remain an Onyx Premium Plan user.
You must deposit one hundred dollars ($100) into your Account to become an Onyx Plus Plan or OnyxBasic Plan user. To remain an Onyx Plus Plan user, you must pay the Onyx Plus Plan membership feeprovided in section 3.16 and maintain a balance of one hundred dollars ($100) in your Account.
If you fail to maintain the minimum balance required for the Onyx Premium and Plus Plans, your Accountmay be downgraded to an Onyx Basic Plan.
1.9 Interest Disclosures
The interest rate on your account is variable and will initially be equal to 1.99% with an annualpercentage yield of 2.01%. This interest rate and annual percentage yield may change from time to time.The interest rate on your Account is based on 50% of the midpoint of the federal funds rate target range1as established by the Federal Open Market Committee of the Federal Reserve, multiplied by .74. You canaccess the current interest rate applicable to your Account by contacting us as specified in Section 1.1.
Interest on your Account will be compounded and credited on a monthly basis. If you close yourAccount, you will receive any interest that has accrued as of the date your Account is closed.
We use the daily balance method to calculate the interest on your account. This method applies a dailyperiodic rate equal to 1/365 of the interest rate to the collected balance in the account each day. Interestwill begin to accrue no later than the next business day following the banking day on which the fundswere deposited.
1.10 Authorized Agents
“Authorized agents” include Authorized Users and any person who has signed a signature card; isauthorized by this Agreement, any resolution or otherwise to access or use the Account; or has beenauthorized or permitted by you or by another authorized agent to provide information or documents tous in connection with the Account or otherwise to act on your behalf in dealing with us.
You agree that your authorized agents are bound by this agreement to the same extent as you and anyAuthorized User and that you will use reasonable efforts to ensure that all authorized agents complyfully with this agreement.
You agree that we may honor and rely upon the instructions or the execution, delivery and/ornegotiation of any check, substitute check, draft, withdrawal order, instruction or similar instrument(collectively, “items”) and any document provided by any of your authorized agents, regardless of thenecessity or reasonableness of such action, the circumstances of any transactions affected by suchaction, the amount of the transaction, the source or disposition of any proceeds, and regardless ofwhether the relevant items or documents result in payment to the authorized agent or an individualobligation of the authorized agent or anyone else.
You will not deny the authenticity, validity, binding effect, and authorization of any action we take inreliance upon the instructions, items or documents provided by an authorized agent unless you havepreviously revoked such person’s authority to access or use your Account by notifying us as specifiedabove and we have confirmed our acceptance of your notice.
1 The federal funds rate target range is published on www.wsj.com/market-data/bonds/moneyrates as the FederalFunds - Target Rate.
1.11 Power of Attorney and Attorneys-In-Fact
We may allow you to give another person (known as an “attorney-in-fact”) power of attorney to act onyour behalf for your Account. You must obtain written approval from us before we will honor any powerof attorney. Email us at the email address specified above for approval if you plan to create a power ofattorney. Please be aware that it may take up to two (2) weeks for us to review your request. If approved,we will honor orders and instructions from your attorney-in-fact until (a) we receive a written revocationfrom you; (b) we are notified that you or your attorney-in-fact have died or become incapacitated; or (c)we terminate our acceptance of the power of attorney. We may terminate our acceptance at any time,for any reason and without notice to you, and you will not hold us liable for any Losses (as definedbelow) that may result from such action.
1.12 Death or Incapacitation
You agree that if we receive notification or if we have reason to believe that you or any Authorized Userhas died or become legally incapacitated, we may place a hold on your Account and refuse alltransactions until we know and have verified the identify of your heir, devisee, or successor. Until wereceive notice and any required proof of death or incapacitation, we may continue to accept depositsand process transactions to your Account. Your estate will be responsible for repaying us for any taxliability resulting from payment of your account balance to your estate. You will hold us harmless for anyactions we take based on our reasonable belief that you have died or become incapacitated. If certainpayments originating from government entities are deposited into your Account after your death, wemay be required to return those payments to the originator upon notice from the government entity.
1.13 Our Relationship With You
By opening an Account, we are establishing an Account relationship with you and committing to act ingood faith and to exercise ordinary care in our dealings with you as defined by the Uniform CommercialCode as adopted by the State of Nebraska. This Agreement and the Account relationship do not create afiduciary relationship or any other special relationship between you and us.
1.14 Third-Party Service Providers
We work with one or more third-party service providers, including Unit Finance, Inc. (“Unit”) and theProgram Partner, in connection with your Account. You acknowledge that we, in our sole discretion, mayuse third-party service providers to fulfill any of our obligations under this agreement, including byperforming functions that you have otherwise authorized us to perform, such as processing transactions,handing account operations including account set-up, transaction monitoring, and customer support,and providing technological connection to Program Partner and Bank. Each of these third-party serviceproviders may in turn use their own third-party service providers.
1.16 Cell Phone, Text, and Other Communications
By providing us with your cellular phone or other wireless device number, you are expressly consentingto receiving communications at that number – including but not limited to prerecorded or artificial voicemessage calls, text messages, app notifications and calls made by an auto-dialer – from us and ouraffiliates, service providers, and agents (including Program Partner). This consent applies to all telephonenumbers that you provide us now or in the future. The telephone or mobile service provider may chargefor these calls or messages. We are not liable for delayed or undelivered messages.
You agree that we may record or monitor any communications for quality control or training purposes.
1.17 Our Business Days
Our business days are Monday through Friday, excluding federal holidays and Nebraska banking holidays.
2 Your Account Responsibilities
We strive to keep your Account secure and provide you with tools and services to help you manage yourAccount. However, there are certain things you should do to protect your Account and your funds.
2.1 Notify Us If Your Information Changes
You must notify us immediately if there is a change to your name, the names of any individual orAuthorized User with access to your Account, telephone number, legal address, email address or anyother information you have provided us so that we can continue to service your Account and provide youwith statements and important notices concerning your Account.
2.2 Keep Track of Your Transactions and Available Balance
It is important that you keep track of your transactions and the funds in your Account that are availablefor you to use (“Available Balance”) by reviewing your transaction history. It is also important tounderstand that your Available Balance may not reflect transactions you have authorized that have notyet been presented to us for payment.
You are also responsible for reviewing your Account statements as they are made available to you forerrors or unauthorized activity. If you identify an error or unauthorized activity, you must notify uspromptly. Please refer to the applicable sections below for information concerning and applicabledeadlines for notifying us if you believe there are errors or unauthorized activity affecting your Account.
2.3 Protect Your Account Information
It is important that you protect your Account information to prevent unauthorized transactions andfraud. Keep your Account number, debit card, debit card number, personal identification number (“PIN”),checks, and statements secure at all times, and be careful about who you share this information with. Ifthe Program Partner provides you with access to Online Banking Services, make sure to also keep yourcomputer/mobile device and all login credentials and security codes secure at all times and avoidaccessing the Online Banking Services when others can see your screen.
If any of the above items are lost, stolen, or compromised, notify us immediately to keep your losses to aminimum. Please refer below for information and applicable deadlines for notifying us of losses or theft.
3 General Rules Governing Your Account
You understand that any payment instruction or activity performed using any Online Banking Servicesprovided to you by the Program Partner will be deemed authorized by you and valid and we are underno obligation to investigate the instruction or activity. Use of the Account is subject to all applicable rulesand customs of any clearinghouse or other association involved in transactions.
3.1 Deposits Into Your Account
You may make deposits into your Account using any of these methods described below. We do notcharge you any fees for making deposits.
We do not accept cash deposits by mail, or paper check or foreign currency deposits: We are not liablefor deposits of any kind that you mail to us, including if it is lost in transit, lost in the mail, or otherwisenot received by us or returned to you.
We will send all items back to the address we have for you. We are not liable if you do not receive theitems.
You may only deposit with us funds that are immediately available, which under applicable law areirreversible and are not subject to any lien, claim or encumbrance.
For more information about deposits and when funds from a deposit will be made available to you,please refer to the applicable section below.
3.2 Our Funds Availability Policy
It is our policy to make deposits to your Account available for withdrawal according to the table below,except where limited by us pursuant to Section 3.7 below. If you make a deposit before our cut-off time(as set forth in the table below) on a business day that we are open, we will consider that day to be theday of your deposit. However, if you make a deposit after our cut-off time or on a day we are not open,we will consider the deposit to be made on the next business day that we are open.
The availability of funds transferred to your Account from a connected bank account held by anotherfinancial institution follow different rules. Please refer to the section below on connected accounts formore information.
3.3 Problems that Could Occur With Deposits
If a deposit or transfer to your Account is returned or rejected by the paying financial institution for anyreason, or if there is an error or mistake involving a deposit or transfer, we may deduct the amount ofthe deposit, transfer, or error without prior notice to you. If there are insufficient funds in your Accountat the time, your Account may become overdrawn. Please refer to the section below concerningoverdrafts for more information.
3.4 Transfers To or From Accounts You Have With Us
If you hold multiple accounts with us that are managed by the same Program Partner, we may permityou to transfer funds from one Account in your name to another account in your name (an “internaltransfer”). The Program Partner may impose limits on such transfers.
3.5 Withdrawals From Your Account
You or an Authorized User may withdraw funds up to the amount of your Available Balance lessapplicable fees using any of the following methods and subject to the following limits:
Before permitting a withdrawal or other transaction, we may request that you provide us with additionalinformation or documentation that we deem necessary to confirm your identity or to prevent illegalactivity. We may refuse the transaction if we cannot confirm your identity or suspect illegal activity, asfurther discussed below.
3.6 Transfers To or From Connected U.S. Bank Accounts
You may be provided with the ability to link another U.S. bank account you have with another financialinstitution (“connected bank account”) to your Account with us to make inbound and/or outbound ACHtransfers between the connected bank account and your Account through the Online Banking Services.An “inbound transfer” moves funds into your Account from a connected bank account. An “outboundtransfer” moves funds from your Account to a connected bank account.
For inbound transfers you initiate through the Online Banking Services, we will debit your connectedbank account and credit your Account with us on the next business day after you initiate the transfer.The funds you transfer to your Account will typically be made available to you by the fifth (5th) businessday after the business day that we debited your Account.
For outbound transfers, we will debit your Account with us and request the financial institution thatholds your connected bank account to credit your connected bank account no later than the nextbusiness day after you initiate the transfer. The financial institution that holds your connected bankaccount determines when those funds will be made available to you in your connected bank account.
The cut-off time for both inbound and outbound transfers is 3:00 PM ET. Transfer requests that you makeon a business day before the cut-off time will be considered initiated on that day. Transfer requests thatyou make after the cut-off time, or on a day that is not a business day, will be considered initiated thefollowing business day that we are open.
There are limits to the dollar amount of both inbound and outbound transfers you can make. Please seethe relevant sections on withdrawal and deposit limits above.
You agree that you will only attempt to connect a bank account for which you have the authority totransfer funds. You may only link a bank account that is a deposit account, such as a checking, savings ormoney market account.
3.7 Checks Drawn Against Your Account
You may be given the ability to write checks drawn against your Account. Please refer to Section 6.3 for
information concerning check writing and obtaining checks for your Account.
3.8 No Illegal Activity, Internet Gambling and Right to Refuse Transactions
You and your Authorized Users must not use your Account for any illegal purposes or, regardless ofwhether it is legal or illegal, for online gambling of any sort, including any betting transaction, purchaseof lottery tickets, casino chips, or off-track betting and wagering. We may deny any transaction or refuseto accept any deposit that we believe is related to illegal activity, online gambling, or for any otherreason at our discretion. However, in the event that a charge or transaction described in this section isapproved and processed, you will still be liable for the charges.
3.9 Funds Transfer Services
Funds transfers to or from your Account will be governed by the rules of the funds transfer system(s)through which the transfers are made (“system rules”), including Fedwire, the National AutomatedClearing House Association (“NACHA”), the Clearing House Interbank Payments System (“CHIPS”), andthe Society for Worldwide Interbank Financial Telecommunication (“SWIFT”). We are under no obligationto honor, in whole or in part, any payment order or other instruction that could result in ourcontravention of applicable law, including requirements of the U.S. Department of the Treasury’s Officeof Foreign Assets Control (“OFAC”) and the Financial Crimes Enforcement Network (“FinCEN”). Foradditional information on electronic fund transfers generally, see below. For additional information on(a) ACH transactions specifically, (b) check deposits and mobile deposit services, and (c) wire transfers,see the relevant titled sections below.
If your Account receives incoming ACH transactions (either credits or debits) or wire transfers initiatedfrom within or outside of the United States, both you and we are subject to the Operating Rules andGuidelines of NACHA, or the rules of any wire transfer system involved, and the laws enforced by OFAC.Under such rules and laws, we may temporarily suspend processing of a transaction for greater scrutinyor verification against the OFAC list of blocked parties, which may result in delayed settlement, postingand/or availability of funds.
We reserve the right to temporarily suspend, block or reject the processing of any transaction, to freezeor block certain funds or the full balance of any Account, account owner, account beneficiary, or
Authorized User (each, a “Restricted Person”), in each case to the extent we deem reasonably necessaryto comply with any notice, order, regulation, rule, requirement or restriction issued or promulgated byOFAC (collectively, the “OFAC Rules”). To comply with OFAC Rules, we may temporarily suspendprocessing of a transaction or the availability of a balance for greater scrutiny or verification, which mayresult in delayed settlement, posting and/or availability of funds. If we determine there is a violation orpotential violation of the OFAC Rules, or if we cannot satisfactorily resolve a suspected or potentialviolation, we may reject such transaction or freeze or block the subject funds or full balance of anyAccount or Restricted Person. If we block the subject funds and you believe you have adequate groundsto seek the return of any blocked funds, it is your sole responsibility to pursue the matter with theappropriate governmental authorities. Please see the OFAC website for the procedures and formrequired to seek a release of blocked funds.
Sometimes legal, regulatory, or governmental authorities require additional information, either inrespect of individuals, entities, or particular transactions. You warrant that you will promptly supply allsuch information, which any such authority may require, and/or which we may be required to supply, inrelation to the individual, entity, or particular transaction.
If you, or any Authorized User, breaches any such laws or regulations, you irrevocably agree that we mayretain any monies or funds transmitted to us pursuant to this Agreement and/or not fulfill any fundstransfer request if we are required to take or refrain from such action by any legal, regulatory, orgovernmental authority or if we reasonably believe that such action may violate any laws or regulations,and such monies will not bear interest against us. You further agree that we may pay such monies to theappropriate legal, regulatory, or governmental authority, when required by law or regulation.
3.10 How We Post Transactions To Your Account and Determine YourAvailable Balance
3.10.1 Posting Overview
To understand how we post transactions to your Account, it is important to first understand thedifference between your Available Balance and your ledger balance. Your Available Balance is theamount of money you have in your Account at any given time that is available for you to use. Your ledgerbalance is the balance in your Account at the beginning of the day after we have posted all transactionsto your Account from the day before. We use your Available Balance to authorize your transactionsthroughout the day and determine whether you have sufficient funds to pay your transactions. Here aresome additional terms that are helpful to understand:
Balance but will be reflected in your ledger balance at the start of the next business day (or the secondbusiness day, for checks that cannot be processed through automated check processing).
Your balance is accessible through the Online Banking Services or as otherwise indicated herein. Keep inmind that your Available Balance may not reflect every transaction you have initiated or previouslyauthorized. For example, your Available Balance will not include checks drawn on your Account ortransactions you have authorized that we have not received.
3.10.4 Debit Card Authorizations
If you are issued a debit card with your Account, you will be able to use your card to pay for goods orservices or to conduct other transactions with a merchant. When you engage in a transaction with amerchant using your debit card, the merchant will request preauthorization (“card authorization”) forthe transaction. If there are sufficient available funds in your Account, we will approve the request andreduce your Available Balance for as long as the card authorization remains on your Account.
Your Available Balance will generally be reduced by the amount of the card authorization. If you use yourcard at a restaurant, your Available Balance may be reduced by the amount of the card authorizationplus up to an additional twenty percent (20%) of that amount, to account for potential tipping.
The card authorization will remain on your Account until we settle the transaction with the merchant(“settlement”). In most cases, the card authorization will automatically be removed after three (3) dayseven if settlement has not yet occurred. However, for certain merchants such as hotels and rental carcompanies, it may take up to thirty (30) days for the card authorization to be removed.
It is important to understand that the merchant controls the timing of card authorizations and the timingand amount of settlement. A merchant may request settlement after the card authorization has beenremoved from your Account. This means that if you use the funds in your Account after the cardauthorization has been removed and the merchant later requests settlement, your Account may becomeoverdrawn. Similarly, if a merchant requests settlement for an amount that is larger than the cardauthorization (for example, if you tip more than 20% or have gas, hotel, or rental car charges that exceedthe authorization amount), your Account may become overdrawn. Therefore, it is important that youkeep track of your transactions and your balance. Once we have approved a card authorization, wecannot stop the transaction and you will be responsible for repaying any negative balance that mayoccur.
Statements will periodically be provided to you through the Online Banking Services as long as yourAccount is not inactive. You will receive a statement monthly as long as you have transactions on yourAccount during the statement period. If there were no transactions on your Account, we will provide youwith statements on a quarterly basis. You will not receive paper statements.
3.12 Errors On Your Account and Limitations of Liability
You should carefully review your statements and promptly report to us any errors or unauthorizedactivity by email at the address indicated in Section 1.1 above. You MUST report errors andunauthorized activity within sixty (60) days after we make the statement available to you. Unless otherwise specified in this Agreement or required by law, if you do not provide us with timely notice ofan error or unauthorized activity, we will deem our records concerning your Account and all cards to becorrect and we will not be liable to you for any Loss you suffer relating to the error or unauthorizedactivity. You further agree that we may debit or credit your Account at any time and without notice toyou to correct an error or address unauthorized activity.
Please refer to the relevant section below for additional information concerning errors and unauthorizedtransactions involving electronic fund transfers and related limitations of liability.
3.13 Overdrafts, Nonsufficient Funds and Negative Balances
An overdraft occurs when you do not have enough money in your Account to cover a transaction, but wepay it anyway. We do not offer overdraft services or charge fees for overdrafts or non-sufficient funds.We typically will return or decline to process a transaction (including, where applicable, ATM and debitcard transactions) if it exceeds your Available Balance. However, it is still possible for you to overdraftyour Account, such as when you write checks (since there is a delay between when you write the checkand when we receive it for processing), when we settle authorized debit card transactions, as discussedin Section 3.9.4, or if a deposit you make is returned. If your Account includes the ability to write checks,we may pay a check drawn on your Account even if you do not have sufficient funds in your Account.Generally, we base this decision on criteria such as your Account history, the deposits you make, and theamount of the check, but we reserve the right to change the criteria that we use to make thisdetermination at any time. We pay checks that will overdraw your Account at our sole discretion. If wepay a check that overdraws your Account on one or more occasions, we are not obligated to continuepaying checks that will overdraw your Account in the future.
You must make a deposit immediately to cover any negative balance, including a negative balanceresulting from an overdraft. If your Account has a negative balance for sixty (60) calendar days or more,we may close your Account. We reserve the right to close your Account at an earlier date, as permittedby law.
3.14 Closing Your Account and Account Suspensions
You can close your Account at any time and for any reason by contacting us as set forth in Section 1.1.We reserve the right to refuse your request if you have a negative balance on your Account. Werecommend that you transfer or withdraw any funds you may have in the Account prior to submitting arequest to close the Account to avoid delays in receiving your funds.
We may also suspend or close your Account, or suspend or disable any service or feature of yourAccount, at our discretion with or without notice. This includes if we believe you are using your Accountfor fraudulent or illegal purposes; in violation of law or regulation, this Agreement, or any otheragreement you may have with us or our third-party service providers; if multiple transactions arereturned on your Account; or if you otherwise present undue risk to us or our third-party serviceproviders.
Accounts with a zero balance will continue to be charged applicable fees until you request to close yourAccount. We may close an Account with a zero balance on the fee period ending date or at month endwithout prior notification to you. Once an Account is closed (either by you or us), no fees will beassessed on the Account.
We may also close your Account if you have not made any deposits or withdrawals from your Account inover twelve (12) months. In addition, canceling your enrollment in the Online Banking Services with theProgram Partner will result in our closure of the Account.
If your Account is closed with a balance greater than $1.00, we will return any funds you may have in theAccount to you by ACH transfer to another bank account or by paper check sent to the most recentaddress you have provided to us. We reserve the right not to return the funds to you if the balance inyour Account is $1.00 or less.
We are not responsible to you for any damages you may suffer as a result of the closure or suspension ofyour Account.
The closure of your Account or termination of this Agreement does not impact any right or obligationthat arose prior to closure or termination, or any right or obligation that, by its nature, should survivetermination (including all indemnifications obligation by you, our limitations of liability, and all termsgoverning arbitration).
3.15 Dormancy, Inactivity and Unclaimed Property
State law and our policy govern when your Account is considered dormant. Your Account is usuallyconsidered dormant if you have not accessed your Account, communicated to us about your Account orotherwise shown an interest in your Account within the period of time specified under applicable law.Each state has varying laws as to when an account becomes dormant, and we may be required to sendthe balance in your Account if it becomes dormant to the state of your last known address. We will makereasonable efforts to contact you if required by applicable law before transferring the remaining balanceof your Account to the applicable state. After we surrender the funds to the state, you must apply to theappropriate state agency to reclaim your funds. You can avoid the surrender of your funds by simplyconducting transactions, contacting us about your Account as set forth in Section 1.1, or replying to anyabandoned property notices we may provide to you.
We may also place your Account in an inactive status if you have not had any transaction for at least six(6) months. If your Account becomes inactive, you may not receive statements or be able to conductcertain transactions. Inactive Accounts must be reactivated. Contact us as set forth in Section 1.1 toreactivate your Account.
3.16 Account Fees and Fee Schedule
You will pay all fees and charges applicable to your Account. All fee amounts will be withdrawn from yourAccount and will be assessed regardless of whether you have sufficient funds in your Account, exceptwhere prohibited by law. Fees are subject to change at any time. We will provide you advance notice ofany changes where required by law.
4 Electronic Fund Transfers
Your Account allows you to withdraw funds up to the Available Balance or make deposits throughelectronic fund transfers (“EFTs”). EFTs are transactions that are processed by electronic means andinclude, among others, ACH transfers, debit card transactions, ATM transactions, and direct deposits.This Section provides you with information and important disclosures and terms about the EFTs that arepermitted on your Account. You may also receive additional services through Online Banking Servicesprovided by the Program Partner, that allow you to initiate EFTs to and from your Account that are notdescribed in this Agreement. In the event the Program Partner provides such additional services, you willbe provided separate agreements and disclosures applicable to those services by the Program Partner.
4.1 Types of EFTs Supported by Your Account
Depending on the features made available for your Account by the Program Partner, your Account maysupport the following types of EFTs:
4.2 Limitations on EFTs
There are limitations on the frequency and dollar amount of transactions you can make to or from yourAccount. These limits are different for each type of transaction. For limits that apply to transactions thatcredit or deposit funds into your Account, please refer to Section 3.1 above. For limits that apply totransactions that debit or withdraw from your Account, please refer to Section 3.5 above. Thesesecurity-related limits may change from time to time.
If you have been issued a debit card for your Account, there may also be transaction limitations thatapply to your use of the card. Please refer to the cardholder agreement provided to you with your cardfor information on any limitations and other terms.
4.3 Your Right to Receive Information and Documentation of YourTransactions
You will receive information and documentation concerning any EFTs that debit or credit your Account inthe following ways:
4.4 Preauthorized Transfers, Stop Payments, and Notices of VaryingAmounts
If you authorize us or another company or person to withdraw from your Account on a regular basis(such as when you sign up for “autopay” to pay a recurring bill or invoice), it is called a “PreauthorizedTransfer.” You may ask us to place a stop payment on Preauthorized Transfers. We may charge a fee tostop payment on Preauthorized Transfers (as outlined in the fees section above). In addition, the personor company you are paying should notify you when the amount of a particular withdrawal will bedifferent from the amount of the last withdrawal.
4.4.1 How to Request a Stop Payment
If you authorize a third party to take payments from your Account on a regular basis through aPreauthorized Transfer, you can place a stop payment on those payments by contacting us as set forth inSection 1.1 at least three (3) business days before the next payment is scheduled to be made. To beeffective, a stop payment request must be received within this time specified, and with all of theinformation required below, so as to give us a reasonable opportunity to act on it.
You must provide: (a) your name, (b) your Account number, (c) the company or person taking thepayments, and (d) the date and amount of the Preauthorized Transfer you wish to stop. If you want allfuture payments from that company or person stopped, be sure to tell us that as well. If you do notprovide us with the correct information, such as the correct payee or the correct amount of the paymentyou wish to stop, we may not be able to stop the payment.
In the event you make your stop payment request via telephone, we may ask that you put your requestin writing and email it to us within fourteen (14) days after your notification to stop such payments withthe information directly above. If we request your confirmation in writing and your written stop paymentnotification is not received within fourteen (14) days, the payment in question will be honored asoriginally authorized and future payments will not be stopped.
4.4.2 Our Liability if We Fail To Stop a Preauthorized Transfer
If you order us to stop one Preauthorized Transfer three (3) business days or more before the payment isscheduled and provide us with all information requested, and we do not do so, we will be liable for yourlosses or damages proximately caused by the failure. However, we will not be liable if the company orperson initiating the payments changes the dollar amount of the payment or makes other changes thatcause us not to recognize it as the payment you requested be stopped.
It is your responsibility to ensure that all of the information supplied in your notice is correct and topromptly inform us of any inaccuracies. We are not liable for failing to stop payment if you have notgiven us sufficient information or if your stop payment request comes too late for us to act on it. If westop payment, you will indemnify, defend and hold us and our officers, directors, shareholders,employees, successors, predecessors, representatives, principals, agents, assigns, parents, subsidiariesand/or insurers (collectively, "Indemnified Parties") harmless from any and all losses, liabilities, costs,and expenses (including reasonable fees and expenses for attorneys, experts and consultants,reasonable out-of-pocket costs, interest and penalties), settlements, fines, fees, penalties, equitablerelief, judgments, and damages ("Losses") imposed on or sustained, incurred or suffered by any of theIndemnified Parties, whether actual or threatened or proven or not, in respect of any and all actions,audits, arbitrations, assertions, suits, mediations, litigations, proceedings, examinations, hearings,inquiries, investigations, charges, complaints, claims (including counter or cross-claims), or demands bywhosoever asserted ("Claims"), without regard to the merit or lack thereof, arising from or related in anyway to our refusal to pay the transaction on which you stopped payment. The foregoing indemnity willnot apply if and to the extent expressly prohibited or restricted by the laws or regulations governing youor your Account.
4.4.3 Notices of Varying Amounts
If a Preauthorized Payment varies in amount, the person or company you are paying should tell you ten(10) days before each payment when it will be made and how much it will be. You may be given theoption to only get this notice when the payment will differ by more than a certain amount from theprevious payment, or when the amount will fall outside certain limits that you set.
4.5 Our Liability for a Failure To Complete A Transaction
If we fail to complete a transaction on time or in the correct amount when properly instructed by you inaccordance with this Agreement, we will be liable for damages proximately caused by the failure or error.However, there are some exceptions. We are not liable, for instance:
4.6 Your Liability for Unauthorized EFTs
Contact us immediately as set forth in Section 1.1 if you believe that an unauthorized EFT has occurredor may occur concerning your Account, Account number, checks, debit card, debit card number, PIN, orOnline Banking Services login credentials have been lost, stolen, or compromised.
You could lose all the money in your Account (and any bank accounts with other institutions you haveconnected to your Account) if you do not notify us immediately if any of these things occur.
For unauthorized EFTs, your liability will be as follows if you notify us of the loss:
We can extend these time periods if extenuating circumstances (such as a long trip or hospital stay) keptyou from notifying us.
If you believe an unauthorized transaction has occurred concerning your Account, or if your debit card orOnline Banking Services login credential have been lost or stolen, contact us at indicated above.
4.7 In Case of Errors or Questions About Your EFTs
Contact us as soon as you can if you think your statement or receipt is wrong or if you need moreinformation about a transfer listed on a statement or receipt. For card related transactions, contact us at1-833-333-0417; for all other transactions call us at the phone number or email address listed above. We must hear from you no later than sixty (60) days after we send the FIRST statement on which theproblem or error appears. You must provide us with the following information:
If you tell us orally, we may require that you send us your complaint or question in writing by emailwithin ten (10) business days.
We will determine whether an error occurred within ten (10) business days after we hear from you andwill provide you the results and correct any error promptly. If we need more time, we may take up toforty-five (45) days—or ninety (90) days for Accounts open less than thirty (30) days or foreign-initiatedtransactions — to investigate your complaint or question. If we decide to do this, we will credit yourAccount within ten (10) business days for the amount you think is in error, so that you will have the useof the money during the time it takes us to complete our investigation. If we ask you to put yourcomplaint or question in writing and we do not receive it within ten (10) business days, we may notcredit your account. For Accounts open less than thirty (30) days, we may take up to twenty (20)business days to credit your Account for the amount you think is in error.
We will provide you the results within three (3) business days after completing our investigation. If wedecide that there was no error, we will send you a written explanation by email. You may ask for copiesof the documents that we used in our investigation.
5 P2P Transfer Service
5.1 Description of P2P Transfer Service
If enabled for your Account, the P2P Transfer Service will allow you to send funds from your Account toanother person’s bank account through the Online Banking Services. You will need to know the routingnumber and account number for the other person’s bank account to initiate a transfer. The P2P TransferService only permits you to send funds. You may not use it to receive or request funds. All transfersmade through the P2P Transfer Service will be executed as ACH transfers in accordance with the rulespromulgated by NACHA. Your use of and access to the P2P Transfer Service is separate and apart fromyour ability to facilitate transfers via ACH to a connected bank account (see above).
5.2 Transaction Deadlines
Our cut-off time for P2P transfer requests is 3:00 PM ET on business days. Requests received before ourcut-off time will be processed that day. Requests received after our cut-off or on a non-business day willbe processed the next business day. For purposes of P2P transfers, a “business day” is a day in which the Federal Reserve Bank is opened to the public for carrying on substantially all of its business, other than aSaturday, Sunday, or legal holiday.
5.3 P2P Transfer Limits
There are limitations on the frequency and dollar amount of P2P transfers you can make from yourAccount using the P2P Transfer Service. These limits are described in the relevant section of thisAgreement. These security-related limits may change from time to time.
5.4 Provisional Credit
You acknowledge that any credit given to the account of the person you are transferring funds tothrough the P2P Transfer Service will be provisional until the financial institution crediting that accountreceives final settlement of your funds. This means that the person you transfer funds to will not beconsidered to be paid by you until final settlement occurs, and any provisional credit given to that personby their financial institution before settlement occurs may be taken back if settlement does not occur.
5.5 Cancellation or Modification of Transfer Requests
Once you authorize a P2P transfer through the P2P Transfer Service, you will not be able to cancel ormodify the transfer.
5.6 Prohibited Transactions and Rejection of P2P Transfers
You agree that you will not use the P2P Transfer Service to initiate transfers related in any way to onlinegambling, or that would violate any law or regulation. You further agree that you will only use the P2PTransfer Service to initiate transfers to consumer bank accounts. You may not use the P2P TransferService to transfer funds for any business purpose or to a business-purpose bank account.
We may block a transfer and/or take any other action we deem reasonable if we suspect that atransaction is unlawful, suspicious, related to online gambling, for a business purpose, or poses unduerisk to us or any of our service providers. We will not be liable for any damages that arise if we block atransfer or take any other action pursuant to this paragraph.
5.7 Returned P2P Transfers
We will notify you by email or via the Online Banking Services of a transfer you have requested isreturned to us no later than one (1) business day after the business day we receive notice of the return.We will not reattempt any transfer that is returned.
We reserve the right to suspend or terminate your access to the P2P Transfer Service if an excessivenumber of P2P transfers are returned.
You will pay for the P2P Transfer Service provided under the Agreement in accordance with the currentschedule of fees above. Fees may change from time to time upon written notice.
5.9 P2P Transfer Service Liability, Limitations on Liability & Indemnity
WE SHALL BE RESPONSIBLE ONLY FOR PERFORMING THE P2P TRANSFER SERVICE EXPRESSLY PROVIDEDFOR IN THIS AGREEMENT AND SHALL BE LIABLE ONLY FOR OUR GROSS NEGLIGENCE IN PERFORMINGTHIS SERVICE. WE SHALL NOT BE RESPONSIBLE FOR YOUR ACTS OR OMISSIONS (INCLUDING THEAMOUNT, ACCURACY, TIMELINESS OF TRANSMITTAL OR AUTHORIZATION OF ANY P2P TRANSFERREQUEST FROM YOU) OR THOSE OF ANY OTHER PERSON. WE ARE AUTHORIZED BY YOU TO PROCESS P2PTRANSFERS IN ACCORDANCE WITH THE INFORMATION THAT WE RECEIVE FROM YOU. YOU SHALL BESOLELY RESPONSIBLE FOR THE INFORMATION YOU PROVIDE TO US, AND WE SHALL HAVE NORESPONSIBILITY FOR ERRONEOUS DATA PROVIDED BY YOU. YOU WILL INDEMNIFY AND HOLD USHARMLESS FROM AND AGAINST ANY LOSS, CHARGE, LIABILITY, COST, FEE OR EXPENSE (INCLUDINGATTORNEYS’ FEES AND EXPENSES) WE SUFFER OR INCUR RESULTING FROM ANY THIRD-PARTY LAWSUIT,CLAIM, ARBITRATION OR OTHER ACTION, ACTUAL OR THREATENED, ARISING UNDER OR IN CONNECTIONWITH THIS AGREEMENT.
IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT LOSS ORDAMAGE THAT YOU MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT, INCLUDINGLOSSES OR DAMAGES FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM OUR ACTS OROMISSIONS PURSUANT TO THIS AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, WE SHALL BE EXCUSED FROMFAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY LEGAL CONSTRAINT,INTERRUPTION OF TRANSMISSION OR COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR,NATURAL DISASTER, EMERGENCY CONDITIONS, OR OTHER CIRCUMSTANCES BEYOND OUR CONTROL.NOTWITHSTANDING THE ABOVE, WE WILL REIMBURSE YOU FOR EXPENSES THAT ARE ASSESSED BY USOR PROGRAM PARTNER (E.G., WIRE FEES) IN THE EVENT OF OUR FAILURE OR DELAY IN TRANSFERRINGFUNDS SOLELY CAUSED US.
IN ADDITION, WE SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN TRANSMITTING A P2PTRANSFER IF SUCH TRANSMITTAL WOULD RESULT IN OUR HAVING EXCEEDED ANY LIMITATION UPONOUR INTRA-DAY NET FUNDS POSITION ESTABLISHED PURSUANT TO PRESENT OR FUTURE FEDERALRESERVE GUIDELINES OR IN OUR REASONABLE JUDGMENT OTHERWISE MAY VIOLATE ANY PROVISIONOF ANY PRESENT OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE, OR ANY RULE ORREGULATION OF ANY OTHER U.S. GOVERNMENTAL REGULATORY AUTHORITY OR BANK POLICY. SUBJECTTO THE FOREGOING LIMITATIONS, OUR LIABILITY FOR LOSS OF INTEREST RESULTING FROM OUR ERROROR DELAY SHALL BE CALCULATED BY USING A RATE EQUAL TO THE AVERAGE FEDERAL FUNDS RATE SETBY THE FEDERAL RESERVE BANK FOR THE PERIOD INVOLVED. AT OUR OPTION, PAYMENT OF SUCHINTEREST MAY BE MADE BY CREDITING THE ACCOUNT RESULTING FROM OR ARISING OUT OF ANYCLAIM OF ANY PERSON WE ARE RESPONSIBLE FOR, ANY ACT OR OMISSION OF YOU OR ANY OTHERPERSON.
5.10 Inconsistency of Name and Account Number
You acknowledge that, if the name you provide to us of the person to whom you wish to transfer fundsdoes not match the name on the bank account you enter through the P2P Transfer Service, the transfermay still be made based only on the account number. You are solely responsible for providing correctinformation for all P2P Transfer Service requests through the Online Banking Services.
We reserve the right to terminate, suspend, or modify the P2P Transfer Service, or your access to the P2PTransfer Service, at any time and for any reason.
You will remain responsible for all transactions that are initiated prior to any termination by you or by usand for any fees and charges incurred prior to the effective date of cancellation. Any unprocessedtransactions including future dated and recurring transactions, will be cancelled as a result oftermination or suspension of your P2P Transfer Service.
6 Check Deposits and Mobile Deposit Services; Check Writing
As defined in the Check Clearing for the 21st Century Act (“Check 21”), a “check” is a draft, payable ondemand and drawn on or payable through or at an office of a bank, whether or not negotiable, that ishandled for forward collection or return, including substitute checks (see below) and travelers checks.
You can only deposit checks into the Account using the mobile check deposit services (the “CheckDeposit Services,” as further described herein) and only as made available in connection with yourAccount and in accordance with the terms of this Agreement.
6.1 Substitute Checks and Your Rights
Federal rules for Check 21 allow banks to replace original checks with “substitute checks,” as defined inCheck 21. Below are the details and your rights related to substitute checks.
6.1.1 Substitute Checks
To make check processing faster, federal law permits banks to replace original checks with “substitutechecks.” These checks are similar in size to original checks with a slightly reduced image of the front andback of the original check. The front of a substitute check states: “This is a legal copy of your check. Youcan use it the same way you would use the original check.” You may use a substitute check as proof ofpayment just like the original check.
Some or all of the checks that you receive back from us may be substitute checks. This notice describesrights you have when you receive substitute checks from us. The rights in this notice do not apply tooriginal checks or to electronic debits to your account. However, you have rights under other laws withrespect to those transactions.
6.1.2 Your Rights Regarding Substitute Checks
In certain cases, federal law provides a special procedure that allows you to request a refund for lossesyou suffer if a substitute check is posted to your account (for example, if you think that we withdrew thewrong amount from your Account or that we withdrew money from your Account more than once forthe same check). The losses you may attempt to recover under this procedure may include the amountthat was withdrawn from your Account and fees that were charged as a result of the withdrawal (forexample, bounced check fees).
The amount of your refund under this procedure is limited to the amount of your loss or the amount ofthe substitute check, whichever is less. You also are entitled to interest on the amount of your refund ifyour Account is an interest-bearing account. If your loss exceeds the amount of the substitute check, youmay be able to recover additional amounts under other law. If you use this procedure, you may receiveup to $2,500 of your refund (plus interest if your account earns interest) within ten (10) business daysafter we received your claim and the remainder of your refund (plus interest if your account earnsinterest) not later than forty-five (45) days after we received your claim.
We may reverse the refund (including any interest on the refund) if we later are able to demonstrate thatthe substitute check was correctly posted to your Account.
6.1.3 Claims for a Refund
If you believe that you have suffered a loss relating to a substitute check that was posted to youraccount, please contact us as set forth in Section 1.1. You must contact us within forty (40) days of thedate that we delivered the substitute check in question or the Account statement showing that thesubstitute check was posted to your Account, whichever is later. We will extend this time period if youwere not able to make a timely claim because of extraordinary circumstances.
Your claim must include:
Substitute checks should only be generated by banks during the check collection process. If you deposit asubstitute check that was not generated or previously handled by us, you agree to provide the substitutecheck warranties as required by Check 21, and represent that the substitute check:
A breach of any Check 21 warranty may result in the substitute check being charged back against youraccount.
6.2 Mobile Check Deposit Services
The Check Deposit Services allow you to make deposits to your Account from a compatible mobile deviceby scanning or photographing checks and delivering the images and associated deposit information to usor our designated processor. By using the Check Deposit Services, you agree to comply with all applicablelaws and regulations and NACHA rules that apply to remote deposit check capture processing and ACHtransaction processing.
6.2.1 Eligibility to Use the Check Deposit Services
Accountholders adhering to all requirements described herein may be eligible to use the Check DepositServices. Not all Accounts are eligible for the Check Deposit Services. We may terminate your use of theCheck Deposit Services at any time at our sole discretion. You may also stop using the Check DepositServices at any time. However, any images or information transmitted through your use of the CheckDeposit Services will continue to be subject to this Agreement after termination. We may change oureligibility criteria at any time with or without notice to you.
To use the Check Deposit Services, you must have an internet-enabled iOS or Android device with acamera, be enrolled in the Online Banking Service, and have downloaded our latest version of ProgramPartner’s mobile application containing the Check Deposit Services functionality.
6.2.2 Eligible Items
You agree that the only images you will scan or capture and deposit (“transmit”) to your Accountthrough use of the Check Deposit Services will be Eligible Items. “Eligible Items” include paper items thatare defined as “checks” or “certified checks” under Federal Reserve Regulation CC and other paper itemsnot otherwise prohibited by this Agreement. You agree that images deemed to be Ineligible Items (seebelow) may not be transmitted to your Account and will be rejected by us. You further agree that theimage of the Eligible Item transmitted to us will be deemed an “item” within the meaning adopted in theUniform Commercial Code of the State of Nebraska.
6.2.3 Ineligible Items
You agree you will not use the Check Deposit Services to scan or deposit images of items that:
6.2.4 Image Capture, Transmission, Processing and Payment
All images you transmit to us using the Check Deposit Services must comply with the technicalrequirements we may specify from time to time (the “Technical Requirements”). You are responsible forall expenses you incur to meet the Technical Requirements. We reserve the right to change the TechnicalRequirements at any time without prior notice.
You are responsible for reviewing and validating the accuracy and completeness of any information youtransmit to us, including the amount indicated on the item and the legibility of the image transmitted.You will only submit check images that meet our quality standards. You will not transmit an image orimages of the same check to us more than once and will not deposit or negotiate, or seek to deposit ornegotiate, such check or item with us or any other party.
You will be solely responsible for ensuring the quality, accuracy, and completeness of the images youtransmit using the Check Deposit Services. You will be solely responsible for the selection, use, andoperation of the mobile device you use to transmit images.
We can attempt to process, collect, present for payment, return, or re-present images you attempt totransmit in any way we choose that is allowed by law.
We can also reject any transmission for any reason at our option and without liability. An image will bedeemed received when you receive a confirmation from us that we have received the image. Receipt ofsuch confirmation does not mean that the transmission was an Eligible Item or accepted.
If an image does not meet our requirements, we can also at our option:
Successfully transmitting an image to us does not mean that your transmission and deposit arecomplete. All of your images are subject to our further verification prior to being accepted for depositand payment. Do not destroy the item transmitted as an image until you see the full deposit amountposted when you view your transaction history via the Online Banking Services.
6.2.5 Limits for the Check Deposit Services
There may be limitations on the frequency and dollar amount of transactions you can make using theCheck Deposit Services. Please refer to Section 3.1 above for information on transaction limitations thatwill apply to your use of the Check Deposit Services.
6.2.6 Required Endorsements on Items You Deposit and Managing theOriginal Item
When you transmit an image to us, you will still have possession of the original item. To prevent anadditional submission of the item for payment, you are required take the following steps:
You should not deposit or attempt to cash the item after transmitting the image to us.
6.2.7 Availability of Your Deposits Using the Check Deposit Services
You acknowledge that items transmitted using the Check Deposit Services are not subject to the fundsavailability rules contained in Regulation CC. Funds deposited using the Check Deposit Services willordinarily be made available to you for withdrawal within five (5) business days after the day you makeyour deposit. See below for information concerning how we determine the day your deposit is made. Wemay make such funds available sooner or later based on the length and extent of your relationship withus, transaction and experience information, and other security and risk-related factors as we, in our solediscretion, deem relevant.
6.2.8 Cutoff Times for Deposits Using the Check Deposit Services
If you successfully transmit an image to us before the cut-off time for the Account on a business day thatwe are open, we will consider that day to be the day of your deposit. After that time or on a day we arenot open, we will consider the deposit to be made on the next business day that we are open. SeeSection 3.2 for cut-off times.
You agree to notify us of any suspected errors regarding items transmitted through the Check DepositServices right away, and in no event later than sixty (60) days after the first Account statement on whichthe error appears is made available to you. Unless you notify us of an error within sixty (60) days afterthe applicable Account statement is made available to you, all deposits made through the Check DepositServices that appear on that statement will be deemed correct and we will have no obligation toinvestigate any claim of error you make.
We can charge back your Account or any other deposit account you have with us for the amount of anyitem, its image or any other representation of an item that is:
This is true even if you have made withdrawals against any amount we have credited to your Account forthe deposited item that was returned or rejected.
We can also charge fees connected to the chargeback as described in this Agreement and any otheragreements you have with us.
There may be fees associated with your use of the Check Deposit Services. Please refer to the section onfees above for all fee information.
You are responsible for protecting your mobile device against unauthorized use as well as any Lossesfrom unauthorized access. You will protect your mobile device, set up strong passwords, and take otherreasonable security precautions to protect your mobile device from unauthorized use. Always keep yourpasswords secret and remember that neither we nor any of our employees or agents will ever ask foryour password. If you receive a communication from anyone requesting that you provide your password,do not respond. We are not responsible for any of these security precautions. If another person uses theCheck Deposit Services with your mobile device, you will be responsible for their actions on the Accountas well as anyone else they allow to use your mobile device. This will be true even if you did not want, oragree to, their use.
If your mobile device is lost or stolen, or if you believe there has been unauthorized activity involving theCheck Deposit Services, tell us immediately by contacting us as set forth in Section 1.1 and promptlychange your password.
6.2.13 Check Deposit Services Disruption
The Check Deposit Services might not be available from time to time due to maintenance, technicalproblems, or other reasons. We are not responsible if the Check Deposit Services are not available. Wecannot assume responsibility for any technical or other difficulties or any resulting damages that youmay incur.
We reserve the right to change, suspend, discontinue, or limit your use of the Check Deposit Services, inwhole or in part, immediately and at any time without prior notice to you.
6.2.14 Ownership and License
You agree that we and our service providers, as applicable, retain all ownership and proprietary rights inthe Check Deposit Services, associated content, technology, and website(s). Your use of the CheckDeposit Services is subject to and conditioned upon your complete compliance with this Agreement.Without limiting the effect of the foregoing, any breach of this Agreement immediately terminates yourright to use the Check Deposit Services. Without limiting the restriction of the foregoing, you may notuse the Check Deposit Services:
You may not copy, reproduce, distribute, or create derivative works from the content and agree not toreverse engineer or reverse compile any of the technology used to provide the Check Deposit Services.
6.2.15 Indemnification and Limitation of Liability
You will indemnify, defend, and hold the Indemnified Parties, and any of our services providersresponsible for administering the Check Deposit Services, harmless from any and all Losses imposed onor sustained, incurred or suffered by any of the Indemnified Parties or any of our services providersresponsible for administering the Check Deposit Services, whether actual or threatened or proven ornot, in respect of any and all Claims, without regard to the merit or lack thereof, arising from or relatedin any way to (a) your breach of the Agreement, (b) a return of a check deposit made using the CheckDeposit Services due to incomplete or incorrect information provided, a closed account, or insufficientfunds, or (c) fraudulent activity.
YOU AGREE YOUR USE OF THE CHECK DEPOSIT SERVICES AND ALL INFORMATION AND CONTENT(INCLUDING THAT OF THIRD PARTIES, INCLUDING OUR SERVICE PROVIDERS) IS AT YOUR RISK AND ISPROVIDED ON AN “AS IS”, "WHERE IS", AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OFANY KIND AS TO THE USE OF THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.WE MAKE NO WARRANTY THAT THE SERVICE WILL (i) MEET YOUR REQUIREMENTS, (ii) BEUNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) PROVIDE ACCURATE OR RELIABLE RESULTS.
You agree that neither we nor any service provider we use to facilitate the Check Deposit Services will beliable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages,including damages for loss of profits, goodwill, use, data or other Losses resulting from the use or theinability to use the Check Deposit Services incurred by you or any third party arising from or related tothe use of, inability to use, or the termination of the use of the Check Deposit Services, regardless of theform of action or claim (whether contract, tort, strict liability or otherwise), even if we have beeninformed of the possibility thereof.
We may terminate your access to the Check Deposit Services for any or no reason, including due to yourmaterial breach of this Agreement, your fraudulent actions or omissions with respect to your use of theCheck Deposit Services, if you become insolvent or file for bankruptcy, or if there is a change in the Rulesthat govern your use of the Check Deposit Services.
6.2.17 Third-Party Beneficiary
You acknowledge and agree that any third-party service provider we use to facilitate your use of theCheck Deposit Services is a third-party beneficiary of this Agreement and that the third-party serviceprovider has the right to directly enforce your obligations of this Agreement against you.
6.3 Check Writing and Getting Checks for Your Account
Your Account permits you to write checks drawn against your Account. However, we will not provide youwith checks or sell them to you. To obtain checks for your Account, you must purchase them from athird-party check printing service. Any checks you purchase must meet our standards, including paper stock and dimensions. We may refuse to process any checks that do not meet our standards or cannotbe processed by our equipment. Certain check features, such as security features, may impair the qualityof a check image.
All checks you write must be written in U.S. dollars and may not include any special instructions, such as“void after 30 days” or “void over $100.” We may pay checks you write without inquiry or liability, even ifthe check (a) has special instruction written on the check; (b) is stale dated (i.e., the check date is morethan 6 months in the past); (c) is post-dated (i.e., the check is dated for a future date); or (d) is notdated.
Contact us as set forth in Section 1.1 for information concerning the minimum standards checks mustmeet for us to accept them. We are not responsible for losses that result from your failure to follow ourcheck standards.
6.4 Requesting Stop Payment On A Check
You may request a stop payment on a check drawn against your Account, or cancel a stop paymentrequest you previously provided to us, if you allow us a reasonable amount of time to act on it. You mayrequest a stop payment on a check, or cancel a prior stop payment request, by contacting us as set forthin Section 1.1.
When making a request, you must provide us with (a) your Account number, (b) the check number orrange of check numbers, (c) the check amount or amounts, (d) the payee name or names, and (e) thedate or dates on the check. We are not responsible for stopping payment on a check if you provideincorrect or incomplete information.
Any stop payment of a check you request is valid for twelve (12) months. We may pay a check once astop payment request expires. You must make a new stop payment request if you do not want it toexpire, and we will treat each renewal of a stop payment request as a new request subject to any stoppayment fees that apply to your Account.
You acknowledge that you will be liable to the holder of a check drawn against your Account even if wereturn the check due to your stop payment request. You agree to indemnify us against any claim madeby any party arising from our return of a check pursuant to your stop payment request.
7 Wire Transfers
The Account may permit domestic wire transfers through Online Banking Services provided to you by theProgram Partner.
7.1 Types of Wire Transfers Supported by Your Account
Your Account may support receiving and/or initiating domestic wire transfers. Refer to Sections 3.1 and3.5 above to determine whether you will be able to receive wires, initiate wires, or both.
We may select any means for the transmission of funds that we consider suitable. We may make use ofcorrespondents, agents, subagents, and funds transfer and communication systems. Such third parties will be deemed your agents, and we will not be liable for any errors, delay, misdelivery, or failure ofdelivery by any of them except as required by applicable law.
7.2 Limitations on Wire Transfers
There are limitations on the frequency and dollar amount of wire transactions you can make to or fromyour Account. For limits that apply to transactions that credit or deposit funds into your Account, pleaserefer to the section above concerning deposits. For limits that apply to transactions that debit orwithdraw from your Account, please refer to the section above concerning withdrawals.
There may be limits on the beneficiaries who can receive a wire transfer you initiate from your Account.These security-related limits may change from time to time.
7.3 Cut-Off Times for Wire Transfers
If a wire request is received before the cut-off time on a business day and verified through our securityprocedures outlined in the section below titled “Security Procedures,” funds will be processed the samebusiness day. If it is received or verified through our security procedures at or after the cut-off time or ona non-business day, funds may be processed the next business day. Section 3.2 contains the cut-offtimes.
We may treat any wire transfer request received at or after our cut-off time as if it was received thatbusiness day, or we may treat it as if it were received at the opening of the next business day.
7.4 Security Procedures
You agree and consent to the use of certain security procedures by us to confirm the validity of any wiretransfer request made pursuant to this Agreement. You understand the security procedures are notdesigned to detect errors in the content of the wire transfer request or to prevent duplicate transfers.Some elements of the procedures will vary, depending upon the method used to initiate a wire transfer.You hereby agree that your utilization of any security procedure established hereunder will constituteyour agreement to its use and affirmative acknowledgment of its commercial reasonableness.
You further agree that any wire transfer request that is acted upon in good faith by us in compliance withthese security procedures, whether in fact authorized by you, will constitute an authorized wire transfer.
7.5 Liability for Incorrect Wire Transfers
You are responsible for providing us with the accurate name and account number for wire transfers, andwe are responsible for transmitting money to the account number you provided.
When you provide us with a name and account number for us to process a wire transfer, we may makepayment solely on the basis of the account number, even if the account number identifies a persondifferent from the named beneficiary. We or an intermediary bank may send a wire transfer to anintermediary bank or beneficiary's/designated recipient's bank based solely on the bank identifyingnumber, even if the payment order indicates a different name. You should be very careful whenproviding the account number for a wire transfer.
If you have provided us with the wrong account number, there may be no way to correct the error orretrieve the funds. You agree that you will pay the amount of a wire transfer even in such circumstances.You are responsible for all Losses resulting from an incorrect account number or your misidentification ofthe beneficiary/designated recipient.
If you think a wire transfer is wrong or if you need more information about a wire transfer, you mustcontact us by as set forth in Section 1.1 as soon as possible and no later than fourteen (14) days after youreceive your Account statement. If you do not tell us about an error, we will not have any obligation topay interest on the amount of an unauthorized or erroneous wire transfer for which we are liable, andyou will also be liable to us for all Losses we may incur.
You must pay us the amount of the wire transfer, plus any applicable fees, before we will execute thewire transfer request. Please see the applicable section of this Agreement above for fees applicable towire transfers.
7.7 Execution of Wire Transfers
A wire transfer request is considered accepted by us when we execute it. You can verify whether yourwire transfer request has been executed by contacting us as set forth in Section 1.1.
We have no responsibility to accept any incoming wire transfer(s) for your benefit. Likewise, we have aright to reject any wire transfer request(s) for an outgoing wire transfer for reasons including insufficientor uncollected funds in the account specified in the wire transfer request, a request that fails anyrequired security procedures, our inability to execute the wire transfer for the reasons set out above, orif we are unable to verify the authenticity of the wire transfer request. If we stop a domestic outgoingwire transfer, we will refund the fee.
If we determine, in our sole discretion, not to honor, execute, or accept a wire transfer request, we willmake reasonable efforts to notify you. We will also make reasonable efforts to notify you promptly if awire transfer is returned to us after its execution. In either case, we will have no liability by reason of ourdelay or failure to provide you with notice, and we will have no obligation to resend a wire transfer if wecomplied with the original wire transfer request and such wire transfer was returned to us.
7.8 Cancellation or Amendment of Wire Transfer
Once we receive a wire transfer request, it may not be able to be canceled or amended. However, at ourdiscretion, we may use reasonable efforts to act on any request for cancellation or amendment, providedthat the method by which we are notified of a request for cancellation or amendment complies with oursecurity procedures. However, we will have no liability if the wire is not cancelled or amended. Anycancellation or amendment of a wire transfer by us will relieve us of any obligation to act on the originalwire transfer request.
In addition to the limitation of liability in this Agreement, except as otherwise provided by applicable law,the maximum period for which we will be liable for interest on any amount to be refunded or paid to youwith respect to an unauthorized, erroneous, or other wire transfer request is thirty (30) days.
7.10 Your Liability for Unauthorized Wire Transfers
Except as otherwise provided by law, you will be liable for all Losses to which your negligencecontributed or which resulted in unauthorized, fraudulent, or dishonest acts by your current and/orformer authorized representatives. Such liability includes instances when a current or former authorizedrepresentative effects one or more wire transfers or any improper use of security procedures to effect awire transfer to your detriment.
8 Other Legal Terms and Conditions
You may not assign, transfer, or otherwise delegate, whether by operation of law or otherwise, yourAccount or your rights or obligations, in whole or in part, under this Agreement. Any assignment,transfer or delegation or attempted assignment, transfer, or delegation in violation of the foregoing shallbe void.
We may assign, transfer, or otherwise delegate our rights or obligations, in whole or in part, under thisAgreement in our sole discretion.
8.2 Legal Processes and Claims Affecting Your Account
If we receive a levy, attachment, or other legal process against you (collectively, “Legal Process”), we mayrefuse to permit withdrawals or transfers from your Account until the Legal Process is dismissed orsatisfied. Any Legal Process will be subject to our right of set-off and security interest. You areresponsible for all Losses we incur as a result of any dispute or legal proceeding involving your Account. Ifwe receive a claim against the funds in your Account, or if we know of or believe that there is a disputeas to the ownership or control of funds in your Account, we may, in our discretion: (a) place a hold onyour Account and refuse to pay out any funds until we are satisfied that the dispute is settled; (b) closeyour Account and send the balance to the named account holder; (c) require a court order to act; or (d)take any other action we feel is necessary to protect us. We will not be liable to you for taking any suchaction.
8.3 Limitation of Liability and Disclaimer of Warranty
EXCEPT AS REQUIRED BY LAW, TO THE EXTENT WE (OR OUR SERVICE PROVIDER(S)) ARE FOUND LIABLE,OUR AND OUR SERVICE PROVIDERS’ TOTAL LIABILITY TO YOU FOR A CLAIM WILL NEVER EXCEED THEAMOUNT OF ACTUAL DAMAGES PROVEN BY YOU AND IS LIMITED TO THE FACE VALUE OF THE ITEM ORTRANSACTION, OR THE ACTUAL VALUE OF ANY FUNDS NOT PROPERLY CREDITED OR DEBITED. EXCEPT ASREQUIRED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE AND OUR SERVICEPROVIDERS SHALL ONLY BE RESPONSIBLE AND LIABLE FOR OUR AND OUR SERVICE PROVIDERS’ OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING OUR OBLIGATIONS UNDER THISAGREEMENT. OUR AND OUR SERVICE PROVIDERS' LIABILITY MAY ALSO BE FURTHER REDUCED BY THEAMOUNT OF THE LOSS THAT IS CAUSED BY YOUR OWN NEGLIGENCE OR LACK OF CARE, AS WELL AS ANYRECOVERY OF THE LOSS YOU OBTAIN FROM THIRD PARTIES.
IN NO EVENT WILL YOU BE ABLE TO RECOVER FROM US OR OUR SERVICE PROVIDERS ANYCONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, LOSSES OR EXPENSES(INCLUDING COUNSEL AND THIRD PARTY FEES OR FINES) OR LOST PROFITS, LOST REVENUE, LOSTPROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, ORINTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, (a) EVEN IF ADVISED OF THE POSSIBILITYOF SUCH DAMAGES, LOSSES OR EXPENSES; (b) EVEN IF SUCH DAMAGES, LOSSES OR EXPENSES WEREFORESEEABLE, (c) WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY OR OTHERWISE, AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, OUR AND OURSERVICE PROVIDERS' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE AND OUR SERVICE PROVIDERS WILL NOT BELIABLE FOR ANY ERROR, FAILURE OR DELAY IN OUR ABILITY TO PERFORM OUR OBLIGATIONS UNDER THISAGREEMENT, INCLUDING ANY ERROR, FAILURE OR DELAY IN THE PROCESSING OF ANY TRANSFER,ARISING FROM OR RELATING TO CAUSES BEYOND OUR OR OUR SERVICE PROVIDERS’ REASONABLECONTROL, INCLUDING ANY ACT OF GOD, WAR (DECLARED OR UNDECLARED), SABOTAGE, BLOCKADE,REVOLUTION, INSURRECTION, TERRORISM, CIVIL STRIFE, EXPROPRIATION, NATIONALIZATION, CHANGEIN LAW, GOVERNMENT ACTION, EMBARGO, SANCTION, ACCIDENT, FIRE, NATURAL DISASTERS, ELEMENTSOF NATURE, PANDEMIC, EQUIPMENT FAILURE, SYSTEM FAILURE, TECHNICAL FAILURE, LABOR DISPUTE,UNUSUAL TRANSACTION VOLUME, SUSPENSION OF PAYMENTS BY ANOTHER FINANCIAL INSTITUTION,OR THE FAILURE OF ANY THIRD PARTY TO PROVIDE ANY ELECTRONIC, DIGITAL ORTELECOMMUNICATIONS SERVICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, WE AND OUR SERVICE PROVIDERS SHALL NOT BELIABLE TO ANY THIRD PARTY OR FOR ANY ACT OR OMISSION OF YOURS OR ANY THIRD PARTY,INCLUDING THIRD PARTIES USED BY US IN EXECUTING ANY TRANSACTION CONTEMPLATED BY THISAGREEMENT OR PERFORMING A RELATED ACT AND NO SUCH THIRD PARTY SHALL BE DEEMED TO BEOUR AGENT.
IN ADDITION, EXCEPT AS REQUIRED BY LAW, WE AND OUR SERVICE PROVIDERS ARE NOT LIABLE ORRESPONSIBLE FOR ANY SERVICES OR FEATURES OF ANY ONLINE BANKING SERVICES PROVIDED TO YOUBY A THIRD PARTY. WE AND OUR SERVICE PROVIDERS ARE ALSO NOT LIABLE FOR ANY UNAUTHORIZEDACCESS OF YOUR INFORMATION OR DATA BY A THIRD PARTY DUE TO YOUR USE OF THIRD-PARTYCOMMUNICATION CHANNELS NOT OFFERED BY US.
ALL BANK SERVICES AND ACCOUNT FEATURES, INCLUDING THOSE PROVIDED BY A THIRD PARTY, SUCH ASONLINE BANKING SERVICES, ARE PROVIDED “AS IS”, "WHERE IS" AND “AS AVAILABLE” WITHOUTWARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND ANYWARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.WE DO NOT WARRANT BANK’S SERVICES OR ACCOUNT FEATURES OR THE SERVICES OR FEATURES OFANY THIRD PARTY, INCLUDING ONLINE BANKING SERVICES, WILL MEET YOUR REQUIREMENTS, BECONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.TO THE EXTENT THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANYIMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUMPERMITTED UNDER APPLICABLE LAW.
You will indemnify, defend and hold the Indemnified Parties harmless from any and all Losses imposedon or sustained, incurred or suffered by any of the Indemnified Parties, whether actual or threatened orproven or not, in respect of any and all Claims, without regard to the merit or lack thereof, arising out of,or related in any way to (a) the matters set forth in this Agreement, including any Claims by any businessor person related to the connected bank account, including any other owner of the connected bankaccount; (b) breach of this Agreement, including any warranties; (c) our taking any action or not takingany action that we are entitled to take pursuant to this Agreement, including attempting to cancel oramend a transfer or actions we take based on the instructions of your attorney-in-fact, including if it islater determined that your power of attorney was invalid or improperly executed; (d) any action oromission by you or any Authorized User; (e) fraudulent activity (except as otherwise provided for hereinor by applicable law); or (f) our action or inaction in reliance upon oral, written or electronic instructionsor information from you or any Authorized User.
8.5 Our Right of Set-Off and Security Interest
We have the right to set-off any liability, direct or contingent, past, present, or future that you oweagainst any account you have with us. This means that we can take any funds in your Account or anyother account you have with us to pay any debt or liability you owe us. We have this right even if theAccount(s) we withdraw money from is a joint Account and the debt or liability we apply it to is owed byonly one of you. Likewise, we could withdraw money from an Account owned by only one person andapply it to reduce the joint debt or liability of that person and another person. Our rights under thisSection are in addition to any right of set-off we may have under applicable law.
You also agree to grant us a security interest in your Account to secure payment of any money that youowe to us or will owe us arising under this Agreement or any other agreements with us. Youacknowledge that this security interest is consensual and in addition to any right of set-off. We mayexercise our security interest or right of set-off without regard to the source of the funds in your Accountor prior recourse to other sources of repayment or collateral, even if it causes you to incur penalties orsuffer any other consequence. You waive any conditions or limits to our right of set-off to the maximumextent permitted by law. We will notify you if we exercise our right to set-off if required by law.
If we take any action to collect debt or liability incurred by you or other amounts you owe us under thisAgreement or defend ourselves in a lawsuit brought by you where we are the prevailing party, you willreimburse us for our Losses, including reasonable attorneys’ fees, to the extent permitted by applicablelaw. We may charge your Account for our Losses without prior notice to you.
8.6 Changes in Terms and Additional Services
We may change this Agreement, or any fees and features of your Account, at any time by posting anamended Agreement on the Program Partner’s website. Any such amendment will be effective uponposting. We will give you advance notice of any change where required by law. We may provide suchnotice to you with your statement, electronically, or by mail. Any notice we provide to you will be binding and sent to the last (postal or electronic) address in our records. We may change your address ifwe receive an address change notice from the U.S. Postal Service. We may change or terminate thisAgreement without notice at our discretion or to comply with any appropriate federal or state law orregulation.
If we make any of our other banking services available to you in connection with your Account, we mayprovide certain terms and conditions for those additional services to you in a separate agreement ordisclosure.
8.7 No Waiver of Rights
We may waive or decline to enforce any of our rights under this Agreement without obligating ourselvesto waive such rights in the future or on any other occasion. We may release any other person obligatedunder this Agreement without affecting your responsibilities under this Agreement.
8.8 Conflicts and Section Headings
If there is a conflict between this Agreement and any other document or statement made to youconcerning the Account, this Agreement will govern. If there is a conflict between this Agreement andany other document or statement made to you concerning any services or products other than theAccount, the separate terms and conditions applicable to that service or product will govern. Sectionheadings that appear in this Agreement are for convenience purposes only and are intended to help youfind information. They should not be construed as affecting the meaning of the Agreement.
If any court or tribunal of competent jurisdiction determines that any provision of this Agreement isillegal, invalid, or unenforceable, the remainder of this Agreement will not be affected. To the extentpermitted by law, the parties waive any provision of law which prohibits or renders unenforceable anyprovisions of this Agreement, and to the extent that such waiver is not permitted by law, you and weagree that such provision will be interpreted as modified to the minimum extent necessary to render theprovisions enforceable.
8.10 Governing Law, Forum, and Time Limits
All actions relating to your Account and this Agreement will be governed by the laws and regulations ofthe United States and the State of Nebraska where your Account will be opened, irrespective of conflictof law principles. You agree that any dispute arising under this Agreement or relating in any way to yourrelationship with us that is not arbitrated will be resolved in a federal or state court located in Nebraskaand that you will be subject to such court’s jurisdiction.
Except where prohibited by law, you agree that you must file any lawsuit or arbitration against us withintwo (2) years after the claim arises unless federal or Nebraska law, or another agreement you have withus, provides for a shorter time. If federal or Nebraska law requires a longer time period than the timeperiods in this Agreement, you agree to the shortest time period permitted under the law.
9 Arbitration and Waivers
BE SURE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOURRIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
9.1 Election to Arbitrate
You and we agree that the sole and exclusive forum and remedy for resolution of a claim be final andbinding arbitration pursuant to this section (the “Arbitration Provision”). As used in this ArbitrationProvision, “Claim” will include any past, present, or future claim, dispute, or controversy involving you (orpersons claiming through or connected with you), on the one hand, and us on the other hand, relating toor arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result fromthis Agreement, including the validity or enforceability of this Arbitration Provision, any part thereof, orthe entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract;tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise.Claims include matters arising as initial claims, counterclaims, cross-claims, third-party claims, orotherwise. Please note that you may continue to assert Claims in small claims court, if your Claimsqualify and so long as the matter remains in such court and advances only on an individual (non-class,non-representative) basis. The scope of this Arbitration Provision is to be given the broadest possibleinterpretation that is enforceable.
You have the right to opt-out of this arbitration clause and it will not affect any other terms andconditions of this Agreement or your relationship with us. TO OPT OUT, YOU MUST NOTIFY US INWRITING OF YOUR INTENT TO DO SO WITHIN SIXTY (60) DAYS AFTER OPENING YOUR ACCOUNT. Youropt-out notice can be a letter that is signed by you that states “I elect to opt out of the arbitration clausein my Consumer Deposit Account Agreement for Account #” or any words to that effect. Send the noticeas set forth in Section 1.1. An election to opt out applies only to the account or accounts identified inyour opt-out notice or, if no specific accounts are identified in your notice, then to any account(s) thatbecame subject to the arbitration clause within the sixty (60)-day period before we received your notice.The arbitration clause will apply to any claims between us relating to any account(s) for which we do notreceive an opt-out notice as described in this section.
9.2 Applicability of the Federal Arbitration Act; Arbitrator’s Powers
This Arbitration Provision is made pursuant to a transaction involving interstate commerce and will begoverned by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will applysubstantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may awarddamages or other types of relief permitted by applicable substantive law, subject to the limitations setforth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure andevidence that would apply in a court. The arbitrator will take steps to reasonably protect confidentialinformation. In any arbitration arising out of or related to this Agreement, the arbitrator will apply thelimitation of liability set forth above and, for the avoidance of doubt, is not empowered to award (a)punitive or exemplary Losses, except where permitted by statute, or (b) incidental, indirect orconsequential Losses, or Losses for lost profits. The parties waive any right to recover all such Losses.
9.3 Informal Dispute Resolution
If a Claim arises, our goal is to address your concerns and, if we are unable to do so, to provide you witha neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claimin arbitration, you will first submit your Claim to us by email at the address specified above and provideus with the opportunity to resolve your concern prior to initiating arbitration.
9.4 Arbitration Procedures
The party initiating arbitration will do so with the Judicial Alternatives and Mediation Services (“JAMS”).The arbitration will be conducted by a single arbitrator according to, and the location of the arbitrationwill be determined in accordance with, the rules and policies of the administrator selected, except to theextent the rules conflict with this Arbitration Provision or any countervailing law. If you have anyquestions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rulesand policies of the administrator and this Arbitration Provision, this Arbitration Provision will control,subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies ofthe administrator apply. The arbitration will be held in the United States county where you live or work,or any other location we agree to.
9.5 Arbitration Fees
If we initiate arbitration, we will pay all the administrator's filing costs and administrative fees (otherthan hearing fees). If you initiate arbitration, filing costs and administrative fees (other than hearing fees)will be paid in accordance with the rules of the administrator selected, or in accordance withcountervailing law if contrary to the administrator's rules. We will pay the administrator's hearing feesfor one (1) full day of arbitration hearings. Fees for hearings that exceed one (1) day will be paid by theparty requesting the hearing, unless the administrator's rules or applicable law require otherwise, or yourequest that we pay them and we agree to do so. Each party will bear the expense of its own attorneys'fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees,these statutory rights will apply in the arbitration notwithstanding anything to the contrary herein.
Within thirty (30) days of a final award by the arbitrator, any party may appeal the award forreconsideration by a three-arbitrator panel selected according to the rules of the arbitratoradministrator. In the event of such an appeal, any opposing party may cross-appeal within thirty (30)days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that areappealed. Costs and conduct of any appeal will be governed by this Arbitration Provision and theadministrator's rules, in the same way as the initial arbitration proceeding. Any award by the individualarbitrator that is not subject to appeal, and any panel award on appeal, will be final and binding, exceptfor any appeal right under the FAA, and may be entered as a judgment in any court of competentjurisdiction.
9.7 No Class Actions
NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING ASPRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THESUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN ACOURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writingby all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bringclaims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitrationunless those persons are parties to a single transaction. Unless consented to in writing by all parties tothe arbitration, an award in arbitration will determine the rights and obligations of the named partiesonly, and only with respect to the claims in arbitration, and will not (a) determine the rights, obligations,or interests of anyone other than a named party, or resolve any Claim of anyone other than a namedparty; nor (b) make an award for the benefit of, or against, anyone other than a named party. Noadministrator or arbitrator will have the power or authority to waive, modify, or fail to enforce thissection, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, will beinvalid and unenforceable. Any challenge to the validity of this section will be determined exclusively bya court and not by the administrator or any arbitrator.
9.8 Survival and Severability of Arbitration Provision
This Arbitration Provision will survive the termination of this Agreement. If any portion of this ArbitrationProvision other than the subsection titled “No Class Actions” is deemed invalid or unenforceable, theremaining portions of this Arbitration Provision will nevertheless remain valid and in force. If there is afinal judicial determination that applicable law precludes enforcement of this Arbitration Provision’slimitations as to a particular claim for relief or particular term, then that claim (and only that claim) orthat term (and only that term) must be severed from the Arbitration Provision and may be brought incourt. If an arbitration is brought on a class, representative, or collective basis, and the limitations onsuch proceedings in the previous subsection are finally adjudicated pursuant to the last sentence of thatsubsection as unenforceable, then no arbitration will be had. In no event will any invalidation be deemedto authorize an arbitrator to determine Claims or make awards beyond those authorized in thisArbitration Provision.
9.9 Judicial Forum for Claims
Except as otherwise required by applicable law, in the event that this Arbitration Provision is found not toapply to you or your Claim, you and Bank agree that any judicial proceeding (other than small claimsactions) will be brought in the federal or state courts of Nebraska. Both you and Bank consent to venueand personal jurisdiction there. All parties agree to waive our right to a jury trial.
9.10 WAIVER OF RIGHT TO LITIGATE
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFOREA JUDGE OR JURY BUT ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVING THAT RIGHT BY AGREEINGTO THIS AGREEMENT AND ARBITRATION PROVISION.
Except as otherwise expressly provided in this Agreement, the following rules apply: (a) the singularincludes the plural and the plural includes the singular; (b) all references to the masculine gender includethe feminine gender (and vice versa); (c) “include”, “includes” and “including” are not limiting; (d) unlessthe context otherwise requires or unless otherwise provided herein, references to a particularagreement, instrument, document, law or regulation also refer to and include all renewals, extensions,modifications, amendments and restatements of such agreement, instrument, document, law orregulation; (e) a reference in this Agreement to a Section or Schedule is to the Section of or Schedule tothis Agreement unless otherwise expressly provided; (f) a reference to a Section in this Agreement,unless the context clearly indicates to the contrary, refers to all sub-parts or sub-components of any saidArticle or Section; (g) words such as “hereunder,” “hereto,” “hereof,” and “herein,” and other words oflike import, unless the context clearly indicates to the contrary, refers to the whole of this Agreementand not to any particular Section, subsection or clause hereof; (h) where the Agreement states that aParty “shall,” “will,” or “must” perform in some manner or otherwise act or omit to act, it means that theParty is legally obligated to do so in accordance with the Agreement; and (i) references to any statuteincludes any amendments thereto and its implementing regulations.
Except with respect to Indemnified Parties and except as otherwise specified in this Agreement, thisAgreement is not intended to and shall not be construed to give any third party any interest or rights(including any third-party beneficiary rights) with respect to or in connection with any agreement orprovision contained herein or contemplated hereby. Use of the Account is subject to all applicable rulesand customs of any clearinghouse or other association involved in transactions. Bank does not waive itsrights by delaying or failing to exercise them at any time. In case any one or more of the provisionscontained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in anyrespect, such invalidity, illegality or unenforceability shall not affect any other provisions of thisAgreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provisionhad never been contained herein. Upon such determination that any term or other provision is invalid,illegal or unenforceable, the court or other tribunal making such determination is authorized andinstructed to modify this Agreement so as to effect the original intent of the parties as closely as possibleso that the transactions and agreements contemplated herein are consummated as originallycontemplated to the fullest extent possible. The headings in this Agreement are only for convenienceand do not in any way limit or define your or our rights or obligations under this Agreement. You agreethat this Agreement and other agreements or disclosures you may receive from us with respect to theAccount or your debit card, contain the entire statement of the terms and conditions, which apply to thesubject matter hereof. If any term or condition of this Agreement should be invalidated or unenforceablefor any reason, all other terms and conditions will continue in full force and effect.