This agreement is by and between Quail Creek Bank, n.a. (known as Financial Institution hereafter) and you, (known as Customer hereafter), and is intended to govern the depositing of the checks through the Internet or by creating information to deposit checks through the software provided by the Financial Institution, based on information submitted by the Customer to the Financial Institution (Agreement). The accepted terms are as follows:
1.1 Account means the Customer's designated deposit account at the Financial Institution.
1.2 Business Day means any calendar day that the Federal Reserve of the United States of America transacts business.
1.3 Check means a draft, payable on demand and drawn on or payable through or at an office of a bank, whether or not negotiable, that is handled for forward collection, including a Substitute Check and a traveler's check; and does not include a non-cash item payable in a medium other than United States dollars.
1.4 Customer means a debtor obligated on one or more Checks.
1.5 Remote Deposit means all information, web-based services, smart phone applications, technological infrastructure, and installed software on the Customer's computers, which allow the Customer to submit Checks for deposit through the Internet.
1.6 Security Procedures means the use of identification codes, encryption, passwords, logon identifications, personal or location identification numbers, repetitive codes, and other security devices, systems, and software used by the Customer to communicate through the Internet for the Remote Deposit Service.
1.7 Services means all duties to be performed by the Financial Institution regarding the Remote Deposit Service.
1.8 Substitute Check means a paper reproduction of the original check that:
a) contains an image of the front and back of the original check;
b) bears a MICR line containing all the information on the MICR line of the original check, except as provided under generally applicable industry standards for Substitute Checks to facilitate the processing of Substitute Checks;
c) conforms, in paper stock, dimension, and otherwise, with generally applicable industry standards for Substitute Checks; and
d) is suitable for automated processing in the same manner as the original check.
2. DUTIES AND RESPONSIBILITIES OF THE FINANCIAL INSTITUTION.
2.1 Use of Service. Under the terms and conditions of this Agreement, Financial Institution hereby grants to Customer a non-exclusive ability to utilize the Remote Deposit Service through the Internet by creating information to deposit checks through the software provided by the Financial Institution, or via a smart phone application, and to use the Financial Institution's proprietary documentation for the term of this Agreement.
2.2 Processing. Financial Institution will process, encode, endorse, and deposit into the Account, Checks submitted by Customer through the Remote Deposit Service in accordance with Financial Institution's internal procedures and all state and federal laws during any Business Day, subject to the Cutoff Time as stated in Schedule A. Financial Institution will not examine Checks to verify any data or dates. Financial Institution will process the Check according to the amount entered by Customer, if applicable, or by the numeric amount shown. If the numeric amount is unclear, Financial Institution may process the Check according to the written amount, and Financial Institution may correct the amount entered by the Customer. If the Check is ambiguous, Financial Institution will return the check as an exception. Checks made payable to the Customer or any reasonable derivation thereof are acceptable for deposit. If a Check does not have the necessary information to be processed by the Financial Institution, then the Financial Institution will treat the Check as an exception. If a Check is treated as an exception, it will be forwarded by the Financial Institution to the Customer, and not deposited or otherwise reflected in the Customer's account. Financial Institution will disregard any notation on a Check containing paid in full or other restrictive notation, whether preprinted or handwritten, and treat any such Check as though such notation did not appear thereon.
2.3 Reporting. Financial Institution will make reports regarding the Remote Deposit Service available through a Financial Institution-designated Web page, which the Customer may access through the Internet. Specifically, the Financial Institution shall make available from time to time a report stating the total amount deposited to the Account, as well as a listing of individual items deposited, which the Customer may access through the Internet. Deposit reporting by smart phone devices will be limited to 5 days following the transaction date.
3. DUTIES AND RESPONSIBILITIES OF THE CUSTOMER.
3.1 Use of Remote Deposit. The Customer shall submit valid Checks payable to Customer by using the Remote Deposit Service. In using the Remote Deposit Service, Customer shall create an image of the Check or Checks and the associated MICR data using approved hardware, or approved smart phone devices. If applicable, Customer agrees to enter in the amount of the Check using the written amount of the Check into the Remote Deposit Service in the data field provided. Customer agrees to abide by all terms and conditions detailed within this agreement which shall be updated from time to time by the Financial Institution.
3.2 Software, Internet, and Hardware. The Customer will comply with all software, Internet, and hardware requirements necessary to adequate and securely communicate with Financial Institution while utilizing all Remote Deposit products and services.
3.3 Fee for Services. Customer shall compensate Financial Institution for the performance of the Service in accordance with the pricing established by Financial Institution, which is attached as Schedule A. Amounts payable by Customer to Financial Institution shall be collected on a monthly basis by Financial Institution. Financial Institution may collect any of the foregoing amounts and any other amounts due by Customer to Financial Institution hereunder or in connection with the provision of the Service to Customer by debiting any of Customer's accounts with Financial Institution, and/or setting off against any amounts Financial Institution owes Customer, without any obligation to give prior notice thereof to Customer. Financial Institution may change pricing from time to time by providing Customer with thirty (30) days written notice of a pricing change. If Customer does not accept the pricing change, then Customer must notify Financial Institution within fifteen (15) days of the effective date of the pricing change. Customer shall also pay any sales, use, or similar tax applicable to the Service. If Financial Institution is required to pay any such taxes, Customer shall reimburse Financial Institution upon demand. Customer shall also pay all attorneys' fees and other costs and expenses Financial Institution may incur in collecting any fees or other sums Customer may owe to Financial Institution in connection with the Service. Financial Institution shall also have the right to credit or debit any accounts of Customer with Financial Institution to correct any processing irregularity in connection with the Service.
4. REPRESENTATIONS, WARRANTIES, COVENANTS, AND LIABILITY
4.1 Representations and Warranties. Each party, Customer and Financial Institution, represents and warrants to the other, as of the date this Agreement is entered into and at the time the Service is used or performed, that: (a) it is validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has all requisite power and authority to execute and deliver, and to perform its obligations under, this Agreement and the Service used or performed by it; (c) this Agreement has been duly authorized and executed by it and constitutes its legal, valid, and binding obligation; and (d) any consent or authorization of any governmental authority or third party required to be obtained by it in connection with this Agreement or the Service used or performed by it has been obtained. Financial Institution makes no representation or warranty, express or implied, and disclaims all warranties as to the merchantability, fitness for a particular purpose, or suitability of the Services for Customer, or as to the compatibility of Financial Institution's software, equipment, or communication interfaces with those of Customer. The Customer represents and warrants that: (a) it is fully authorized to enter into and perform under this Agreement, and that this Agreement constitutes its legal, valid, and binding obligation; (b) the Customer is solvent and in good standing in the State of its organization; (c) it is not the present intent of the Customer to seek protection under any bankruptcy laws; (d) its Checks are currently and were at the time of their creation, bona fide and existing obligations due the Customer, free and clear of all security interests, liens, and claims whatsoever of third parties and are not now nor have they ever been declared in default; (e) the documentation under which the Checks are payable authorizes the payee to charge and collect the monies owed; and (f) all Checks and all documents and practices related to them comply with all applicable federal and state laws.
4.2 Covenants. The Customer covenants that: (a) it will allow the Financial Institution to review and inspect during reasonable business hours, and the Customer will supply all financial information, financial records, and documentation of the Customer regarding the Checks that the Financial Institution may request; (b) the Checks submitted by Customer are valid Checks, and the Customer will reimburse and indemnify the Financial Institution for all loss, damage, and expenses, including reasonable attorneys' fees, incurred in defending such transactions as invalid or fraudulent Checks; (c) physical checks will not be presented to any financial institution once these items are presented through the Remote Deposit Service; (d) physical checks will be stored in a secured area and destroyed by shredding or incineration within thirty (30) days of processing; (e) the Customer will notify the Financial Institution if an acknowledgement sent by the Financial Institution indicating receipt of remote deposit items is not received on the day of processing; and (f) in the event of the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Customer, the Customer will not oppose or object to any motion by the Financial Institution seeking relief from the automatic stay provisions of such laws.
4.3 Liability. Financial Institution will exercise ordinary care in providing the Service and will be responsible for any loss sustained by Customer only to the extent such loss is caused by Financial Institution's reckless or willful misconduct. In no event shall clerical errors or mistakes in judgments constitute failure to exercise ordinary care, nor shall Financial Institution have any liability for any indirect, incidental, consequential (including lost profits), special, or punitive damages, whether arising in contract or in tort, and whether or not the possibility of such damages was disclosed to or could have been reasonably foreseen by Financial Institution. Under no circumstances shall Financial Institution be responsible for any liability, loss, or damage resulting from any delay in performance of or failure to perform in connection with the Service which is caused by interruption of telephone, telefacsimile, cell phone, or communication facilities; delay in transportation, equipment breakdown, or mechanical malfunction; electrical, power, or computer failure; accidents, fire, flood, explosion, theft, natural disaster, or other catastrophe; acts or failure to act by Customer or any third party; strikes or lockouts; emergency conditions; or riots, war, acts of government, or other circumstances which are unavoidable or beyond Financial Institution's control. Financial Institution shall not be liable for failure to perform any of its obligations in connection with the Service if such performance would result in it being in breach of any law, regulation, or requirement of any governmental authority. If Financial Institution fails to credit any of Customer's accounts utilized in connection with the Service in accordance with the terms and conditions of this agreement as of the date such credit was earned, upon discovery or notification of such error, Financial Institution will properly credit such account, but Financial Institution shall not incur any liability therefore, including any loss resulting from failure by Customer to invest the amount of funds not properly credited to the account.
5. Indemnification. Customer shall indemnify and hold harmless Financial Institution and each of its directors, officers, employees, agents, successors, and assigns (Indemnitees) from and against all liability, loss, and damage of any kind (including attorneys' fees and other costs incurred in connection therewith) incurred by or asserted against such Indemnitee in any way relating to or arising out of the Service, by reason of any acts or omissions of Customer or any third party or otherwise, except to the extent such liability, loss, or damage is caused by the gross negligence or willful misconduct of such Indemnitee (provided that reliance, without further investigation, on any oral, telephonic, electronic, written, or other request, notice, or instruction believed in good faith to have been given by Customer will in no event constitute gross negligence or willful misconduct on the part of such Indemnitee).
6. Security Procedures and Communications. Certain Security Procedures designed to verify the origination (but not errors in transmission or content) of instructions, orders, and other communications sent by Financial Institution and Customer might be used in connection with the Service. Customer agrees that any such mutually agreed-upon Security Procedures shall be deemed commercially reasonable. Financial Institution shall not be obligated to act on a communication not transmitted in accordance with the Security Procedures and may refuse to act on any communication where Financial Institution reasonably doubts its authorization, contents, origination, or compliance with the Security Procedures. Financial Institution shall have no duty to discover, and shall not be liable for, errors or omissions by Customer. If Financial Institution complies with the Security Procedures in respect of a communication, Financial Institution shall be entitled to act on that communication and shall not be obligated to verify the content of such communication, establish the identity of the person giving it, or await any confirmation thereof, and Financial Institution shall not be liable for acting on, and Customer shall be bound by, any communication sent in the name of Customer, whether or not authorized. Financial Institution reserves the right to issue new Security Procedures and/or to cancel or change any Security Procedures from time to time. Whenever the Security Procedures include the assigning to Customer of any confidential password, logon identification, identification code, personal or location identification number, repetitive code, or similar security device, Customer shall not disclose such security device except to employees or agents authorized to act for Customer in connection with the Service. Customer shall implement such safeguards as are reasonably necessary to ensure the confidentiality and integrity of such security devices, and shall immediately notify Financial Institution if the confidentiality or integrity of any such security device is breached or threatened. Customer shall be solely responsible for the safekeeping of such security devices and assumes all risk of accidental disclosure or inadvertent use of such security devices by any party whatsoever, whether such disclosure or use is on account of Customer's negligence or deliberate acts or otherwise. Financial Institution shall not be liable for any loss or damage resulting from fraudulent, unauthorized, or otherwise improper use of any security devices.
7. Confidentiality. All user guides, manuals, data, software, processes, and other information provided to Customer in connection with the Service and all fee and pricing information with respect to the Service (Information) is the proprietary and confidential property of Financial Institution and/or its relevant licensors or suppliers. Customer agrees to use the Information only in the manner specified by Financial Institution and in the ordinary course of Customer's commerce, to return it to Financial Institution upon termination of the relevant Service, and to keep the Information confidential and limit access thereto only to its agents and employees who require access in the normal course of their duties, except to the extent the Information is already in the public domain or Customer is required to disclose the Information by law.
8. Intermediaries. Financial Institution may act on any communication and provide the Service using any payment system or intermediary organization it reasonably selects. Financial Institution's performance of the Service is subject to the rules and regulations of any such system or organization. Financial Institution may engage third parties to provide the Service. Financial Institution shall have no obligation to disclose arrangements with third parties to Customer or obtain Customer's consent thereto. Customer authorizes the transfer of information relating to Customer to agents of Financial Institution or Customer for use in connection with the Service or as required by law.
9. Recordings and Records. Either Customer or Financial Institution may produce telephonic or electronic recordings or computer records, including email and telefacsimile transmissions, as evidence in any proceedings brought in connection with the Service. Customer agrees to Financial Institution's telephonic or electronic recording for security and quality of service purposes.
10. Notices. Any notice or other communication may be sent by Financial Institution to Customer at Customer's postal, email, telefacsimile, or other address provided by Customer to Financial Institution, and Financial Institution may assume that any notice or communication sent to Customer at any such address has been received by Customer, until Customer notifies Financial Institution in writing of another address.
11. Accounts. The Service involving Customer's accounts at Financial Institution are subject to Financial Institution's terms and conditions of deposit accounts and availability schedules in effect from time to time, provided that in the event of any conflict between this Agreement and Financial Institution's terms and conditions of deposit accounts, this Agreement shall prevail.
12. Discrepancies. Customer shall promptly notify Financial Institution in writing of any error in connection with the Service and any discrepancies between any records maintained by Customer and any notice Customer receives from Financial Institution with respect to the Service, and Customer shall provide Financial Institution with any information it may reasonably request in connection therewith. Customer agrees that fourteen (14) days is a reasonable time for Customer to notify Financial Institution of errors or discrepancies, unless any other agreements, laws, rules, or regulations provide for a shorter period. Financial Institution shall have the right to correct the amount in the data field for any Check that has an incorrect amount to be consistent with the image of the Check. Notwithstanding the foregoing, if Financial Institution at any time discovers that the legal amount of the Check is different than the amount that has been credited to Customer's Account, Financial Institution will make the necessary adjustment to the Account to correct the discrepancy.
13. Compliance. Customer shall comply with all laws, rules, and regulations in connection with the Service. Customer agrees to be bound by such rules and agrees that no entries that violate United States law may be initiated. Customer shall be responsible for and shall fully indemnify Financial Institution for any and all fines and assessments imposed on Financial Institution as a result of any infraction or violation of such rules caused by or attributable to Customer.
14. Contingency. In the event the Remote Deposit Service is not available due to circumstances beyond the control of the Customer or the Financial Institution, arrangements will be made to accept the presentment of physical check items by the Customer for processing by the Financial Institution.
15. Disclosure. Customer acknowledges that Financial Institution may have certain legal record keeping and reporting requirements with respect to the Service and consents to Financial Institution's disclosure to governmental authorities of information concerning Customer and the Service provided to Customer which Financial Institution believes to be appropriate or necessary to fulfill such legal requirements.
16. Fiduciary Status. Nothing contained herein shall be deemed to create fiduciary status on the part of Financial Institution in connection with the provision of the Service. The foregoing notwithstanding, to the extent, if any, that Financial Institution is deemed to be a fiduciary of Customer in providing the Service, this Agreement is not intended to, nor shall, relieve Financial Institution of any fiduciary responsibility otherwise imposed on it by law.
17. Termination. Either party may terminate the Service by providing sixty (60) days' prior written notice to the other party. Financial Institution may also terminate or suspend the Service without notice to Customer if any of the following occurs: (a) Customer becomes insolvent or files, or has filed against it, any bankruptcy or other insolvency, reorganization, liquidation, or dissolution proceeding of any kind; (b) a material adverse change occurs in Customer's financial condition; (c) Financial Institution has reason to believe that Customer has engaged in fraudulent or illegal activity; (d) Customer fails to maintain balances in accounts sufficient to cover overdrafts; (e) Customer violates the terms of this Agreement or any financing arrangement with Financial Institution; (f) Customer fails to provide financial information reasonably requested by Financial Institution; (g) Financial Institution determines it is impractical or illegal to provide the Service because of changes in laws, regulations, or rules; or (h) Financial Institution, in good faith, is unable to satisfy itself that the Services have been properly authorized by Customer. Notwithstanding any termination, the terms of this Agreement shall apply to all transactions, which have been initiated prior to termination.
18. Governing Law; Severability. Except to the extent superseded by Federal law, the provision of Services shall be governed by the laws of the state in which the principal office of Financial Institution is located. Customer agrees that the courts of such state shall have jurisdiction to hear any dispute arising out of the Service and submits to the jurisdiction of such courts. Any provision of this Agreement that is unenforceable shall be ineffective to the extent of such provision, without invalidating the remaining provisions of this Agreement. If performance of the Services would result in violation of any law, regulation, or governmental policy, this Agreement shall be deemed amended to the extent necessary to comply therewith.
19. Financial Accommodation. Customer and Financial Institution agree that this Agreement and the Service constitute an agreement to provide a financial accommodation as defined in 11 U.S.C. ß365.
20. arbitration. All disputes, controversies, or differences which may arise between the parties out of or in connection with the Agreement, which cannot be settled by negotiation within thirty (30) days of the matter first being notified in writing to the other by the complaining party, shall be finally settled by binding arbitration in accordance with the commercial arbitration rules. The arbitration of all matters shall be conducted by three (3) arbitrators (Panel of Three) with each party selecting one (1) arbitrator, and the third to be selected from the panel of arbitrators, who shall serve as the chair of the Panel of Three. If either party refuses or neglects to appoint an arbitrator within thirty (30) days after receipt of written notice from the other party requesting it to do so, the requesting party may appoint two (2) arbitrators. The place of the arbitration shall be in the same city as the principal office that the Financial Institution is located. The arbitration award shall be final and binding upon the parties. Any judgment upon such award may be enforced in any court having jurisdiction, or application may be made to such court for a judicial confirmation of such award and judgment or order of enforcement, as the case may be. The cost of the arbitration shall be borne equally by the parties unless otherwise provided in the arbitration award. The parties hereto agree that the arbitration award will be the sole and exclusive remedy between them regarding any and all claims, counterclaims, or issues. In order to have arbitration as the sole and exclusive remedy the parties hereto exclude the right of appeal to courts of the United States, or any other courts, in connection with any question of law arising in the course of the reference to arbitration or out of the arbitration award.
21. Waiver of Jury Trial. CUSTOMER AND FINANCIAL INSTITUTION WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES USED BY CUSTOMER.
22. GENERAL. This Agreement manifests the entire agreement between the parties regarding the subject matter hereof and supersedes all prior understandings, writings, proposals, representations, or communications, oral or written, of either party. Neither party relied on any representation or promise by other party that is not set forth in this Agreement. This Agreement may not be assigned by Customer without Financial Institution's prior written consent. Financial Institution may assign this Agreement without Customer's consent. Neither Customer nor Financial Institution shall display any name, trademark, or service mark of the other without the prior written consent of the other. Customer shall not advertise or promote the Service without Financial Institution's prior written consent. This Agreement shall bind and benefit the parties and their successors and assigns. None of the terms of this Agreement may be waived except as Financial Institution may consent in writing, and no agreement with or representation made by any employee of Financial Institution that is in conflict with this Agreement will be binding on Financial Institution unless contained in a written modification of this Agreement signed by an authorized officer of Financial Institution. No delay on the part of Financial Institution in exercising any right or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power under this Agreement preclude further exercise thereof or the exercise of any other right or power. The rights and remedies under this Agreement are cumulative and not exclusive of any rights or remedies which Financial Institution would otherwise have. Section headings in this Agreement are for convenience of reference only and do not constitute a part thereof. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument