You are signing up to use the Nusenda Federal Credit Union ("Credit Union") Person to Person service and External Transfer service that allow you to send funds to another person or to yourself at another financial institution. This E-Signature and Electronic Disclosures Agreement ("E-Sign Agreement") applies to all communications, documents, disclosures and electronic signatures related to the products, services and transfers offered or accessible through the Service offered by your Credit Union for all cardholders, authorized users, account owners, account signers, applicants, and any other person using this Service as a Sender or Recipient or registering to use this Service.
Agreement to Conduct Transactions by Electronic Means
You agree to conduct the transfers offered through the Service by electronic means and acknowledge that all documents, disclosures, forms and other information related to such transactions will be provided to you through a mobile or web-based electronic interface or email. Each time you use this Service and submit information to the Credit Union you agree to the electronic access, receipt and acceptance of documents, disclosures and forms. You may not use this Service unless you agree to receive documents by electronic means.
You further agree that you intend to electronically contract with us for the Service and that all transactions completed through this Service will result in valid and legally binding agreements. You also agree that you have adequate access to a computer or mobile phone with sufficient internet connectivity to conduct these transactions online. You acknowledge that you meet the hardware and software requirements to access this Service as described below.
Agreement to Use Electronic Signatures
Agreement to Receive Disclosures Electronically
You agree to receive all legal and regulatory notices, disclosures and other communications associated with your registration or use of this Service through electronic means including web-based electronic interface, mobile phone interface or email.
Availability of Printed Copies
To use this Service you must provide your current email address so that we can send you important information related to your use of this Service. You may review and update the personal information maintained about you in the "My Profile – Manage Contact Info" section of the Site at any time to ensure that it is accurate.
Unauthorized use of these systems is strictly prohibited and is subject to prosecution under the Computer Fraud and Abuse Act of 1986 and Title 18, U.S. Code Sec. 1001 and 1030. Credit Union or its Service Provider may monitor and audit usage of this system. You are hereby notified that the use of this system constitutes consent to such monitoring and auditing.
Any Account accessed through the Service is also subject to the terms and conditions of your Account as identified within your Account Information Brochure, (AIB). You should review the AIB carefully, as they may include transaction limitations and fees that might apply to your use of the Service.
"Recipient" means the account holder or cardholder to whom the Sender transfers funds.
"Sender" is the Credit Union Cardholder that transfers funds to another person through the Service.
"Service" means the Person to Person or ac that allows a Sender to send funds to Recipient.
"Service Provider" is Acculynk a company that arranges for person-to-person payments to customers of any U.S. financial institution.
"Site" is the Service Provider's electronic location accessed by a user through a mobile phone, computer or other access device.
"Transfer" means an electronic movement of funds from an account at Credit Union to an account of another party or an account at another institution by means of the Service.
"Transfer Instructions" are the information that you provide when using the Service.
"Us," "We," and "Our" means Credit Union.
"You" and "Your" mean each person who applies or registers to use the Service and each person who uses the Service, including both the Sender and Recipient of a Transfer.
2. Description of Service and Consent
Credit Union debit cardholders may send one-time Transfers to Credit Union members or a depositor of another financial institution. You may originate these Transfers by use of a computer or a mobile smart phone. For Person to Person transfers only — notice is given to the Recipient by the Sender providing the Recipient's email address or mobile phone number. To use this Service you are providing information to our Service Provider from your mobile phone, desktop, laptop, or other computer. Service Provider is a vendor of Credit Union.
By participating in any transfer service offered by Nusenda Credit Union, you are representing to the Credit Union that you are the owner or you have the authority to act on behalf of the owner of the mobile phone number or email address you are using to send or receive messages regarding Transfers. In addition, you are consenting to the receipt of emails or automated text messages from the Credit Union or its agent, regarding the Transfers and represent to the Credit Union that you have obtained the consent of the Recipients of your intended Transfers.
Funds may be transferred to any account in the United States as long as the Transfer is legal and allowed by the financial institutions involved.
Individuals aged 18 and older with a debit card issued by Credit Union are eligible to use this Service to send funds to a Recipient. Any individual age 18 years and older with an account in the United States that may receive POS or ACH transactions may use this Service to receive funds that are transferred by the Sender. The Service is not offered to individuals under the age of 18. Other restrictions and eligibility requirements apply as described in this Agreement or other disclosures. Credit Union does not knowingly collect any personal information from or about individuals under 18 years of age. Please do not submit such information to the Credit Union, and as a parent or legal guardian, please do not allow your children to submit personal information without your permission. By using the Site or the Service, you represent that you meet these requirements.
You may make one-time, future dated or recurring Person to Person Transfers with an open and active Share Draft Account. The Sender provides the Recipient's email address or mobile phone number, and the Service uses this information to notify the Recipient. A Recipient must accept the Transfer within 7 days, or the Transfer will be cancelled. Once the Recipient has successfully accepted the Transfer, funds will be sent to the Recipient's financial institution for deposit to the Recipient's account. Future payments to the same Recipient will default to the delivery method entered by the Recipient. Transfers are electronic and can be delivered in real-time, via debit card, or next business day, via ACH to the Recipient's financial institution once claimed. Credit Union is not responsible for any failure of another financial institution to timely credit its customer's account.
You acknowledge and agree that Transfers will be completed using only the email address or mobile phone number you enter even if it identifies a person different from your intended Recipient. The name you enter will help you identify your intended Recipient in the Person to Person tab but will not be used to process payments. You must accurately enter the Recipient's email address or mobile phone number since your obligation to pay for the Transfer will not be excused by an error in the information you enter.
Transfer Instructions relating to external accounts and the transmission and issuance of data related to such Transfer Instructions shall be received pursuant to the terms of this Agreement, and the rules of the National Automated Clearing House Association ("NACHA") and the applicable automated clearing house, as well as any EFT Network, or networks, utilized to automate the transfer of funds and governed by Regulation E, (collectively, the "Rules"). The parties agree to be bound by such Rules as in effect from time to time. In accordance with such Rules, any credit to an Account shall be provisional until the Credit Union or the third party institution, which holds the account, has finally settled such credit.
It is the responsibility of the Sender and Recipient of funds to provide accurate information. You agree that you as Sender are authorized to withdraw or as Recipient are authorized to deposit funds into the Accounts whose numbers you provide. You authorize the Credit Union, directly or through third parties, to make any inquires considered necessary to validate your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report and verifying your information against third party databases or through other sources.
You authorize the Credit Union to debit your account to complete the Transfer you request. If you are receiving funds, you authorize the crediting of your account using card networks or NACHA.
For a complete list of your rights and responsibilities regarding electronic funds transfers, including time frames for disputing such transactions, refer to our Account Information Brochure (AIB) at nusenda.org.
5. Sender Acknowledgment
By using this Service you, as the Sender, authorize the sending of an email or text message instructing the Recipient how to receive the funds that you are sending. You are further authorizing any Recipient of this message to act on the instructions to receive the funds you are sending. You acknowledge that any party receiving the email message at the email address you provide or text message at the mobile phone number you provide may obtain the funds you are sending.
You acknowledge and agree that we are not responsible for determining the identity of the party who receives the email or text message and acts upon the email or text message you provide. Your funds may not reach the intended Recipient because of errors made by the Sender or Recipient and you could lose all the funds. The funds that are credited to the account cannot be recalled by us. If you suspect that you have entered information incorrectly, call us immediately and we may be able to cancel the Transfer. We have no obligation to cancel the Transfer or to reimburse funds that were transferred according to the Sender's instructions. Furthermore, we may reject any Transfer request and may terminate your use of this Service for any reason including attempting insufficient funded Transfers.
6. Fees and Limitations on Transfers
Users 90 days or newer may not exceed a daily transaction limit of $750.00. Existing users older than 90 days may not exceed a daily transaction limit of $2,000.00. Multiple transfers may be sent each day; however we may modify the amount and frequency of Transfers, or revoke the service at any time for security reasons or due to account activity.
Funds may be transferred from the shared draft account authorized to transfer funds. Such transfers will not be sent if there are insufficient funds in account. Accounts are only debited for payments that are processed. Canceled payments will never be debited. In any of these situations, a transfer fee will be charged, as applicable. You may be denied service for insufficient funds in your account. You will be responsible for any other transaction fees that apply to your Account.
Please note that your mobile carrier may charge you for text messaging. Please check your mobile service agreement for details on applicable fees. The receiving institution may have limits on the number and type of Transfers allowed and may also charge a transaction fee.
7. Timing of Transfers
Transfers to remove the funds from the Sender's Account may take place immediately. However, the timing of funds received will depend on when the Recipient responds to the text or email and when their financial institution posts the Transfer. The posting of the Transfer is dependent on the business days of that institution.
8. Issues Affecting the Posting of Transfers
You authorize us to debit your account to complete the Transfer you request. If you are receiving funds, you authorize the Credit Union to credit your Account using card networks/switches or NACHA.
Other events may affect the timing or success of a Transfer reaching the intended Recipient. Such events may include, but are not limited to, errors made by the Sender or Recipient in entering information, inaccurate account or card number information, delays in posting by the receiving institution, acts of God, and network and NACHA interruptions. If we believe the Transfer may be illegal, we may decline or reverse the Transfer. The receiving institution may choose not to post the Transfer or to delay posting the Transfer. Neither the Credit Union nor the Service Provider is responsible for any delays in the Transfer of funds or the posting of funds to the Recipient's Account. You may have certain rights and responsibilities regarding the failure to timely post transactions and you are encouraged to pursue dispute resolution with the receiving financial institution.
Financial institutions have rules and regulations that govern their accounts. Some of these regulations may not allow a POS or ACH transfer of funds. You are responsible for ensuring that these types of Transfers are allowed for the Account that you specify. For example, an IRA may not allow electronic transfers directly into the Account. We are not responsible for any action or lack of action taken by the financial institution that delays, inhibits, or prevents the posting of the Transfer to the Account.
If the financial institution contacts us or our Service Provider for information regarding your Account, you authorize us to discuss the Transfer and the account information you have provided.
10. Cookies, Browser Information and Related Issues
When you visit the Site, the Service Provider may receive certain standard information that your browser sends to every website you visit, such as the originating IP address, browser type and language, access times and referring website addresses, and other information. This data may be used, among other uses, to improve the operation of the Site and to improve the security of the Site and Service by assisting in "authenticating" who you are when you access the Site or Service.
The Service Provider may also receive additional information about your visit to the Site, including the pages you view, the links you click and other actions you take in connection with the Site and the Service. This data may be used, among other uses, to improve the operation of the Site and the Service.
You may encounter the Service Provider's cookies or pixel tags on websites that we do not control. For example, if you view a web page created by a third party or use an application developed by a third party, there may be a cookie or pixel tag placed by the web page or application.
11. Access to Information about You
You may review and update the personal information maintained about you in the "My Profile – Manage Contact Info" section of the Site at any time to ensure that it is accurate.
Once you close your Accounts with the Credit Union you may no longer send Transfers. However your Account information will be maintained for a retention period to accommodate any residual issues that may arise.
13. Limitations of Warranties
THE SITE AND SERVICE AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF OUR SERVICE, AND OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. SOME STATES DO NOT ALLOW THE DISCLAIMER OR CERTAIN IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THIS PARAGRAPH GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
THE FOREGOING SHALL CONSTITUTE YOUR EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF CREDIT UNION AND ITS AFFILIATES AND SERVICE PROVIDERS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, FOR THE SERVICE AND THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED. YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME, THE SERVICE MAY BE DELAYED, INTERRUPTED OR DISRUPTED PERIODICALLY FOR AN INDETERMINATE AMOUNT OF TIME DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTION, DISRUPTION OR FAILURE IN THE PROVISION OF THE SERVICE, WHETHER CAUSED BY STRIKES, POWER FAILURES, EQUIPMENT MALFUNCTIONS OR OTHER REASONS.
14. Limitation on Liability
IN NO EVENT SHALL CREDIT UNION OR ITS AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE CAUSED BY ITS AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF GOODWILL OR LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND NOTICE WAS GIVEN REGARDING THEM.
15. Limitation on Damages
CREDIT UNION'S AGGREGATE LIABILITY AND THE AGGREGATE LIABILITY OF ITS AFFILIATES AND SERVICE PROVIDERS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, TO YOU AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT OUT OF POCKET DAMAGES UP TO A MAXIMUM OF $500 (FIVE HUNDRED DOLLARS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
16. Time for Making a Claim
IN NO EVENT SHALL CREDIT UNION OR ITS AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED THAT YOU DO NOT STATE IN WRITING IN A COMPLAINT FILED IN A COURT OF COMPETENT JURISDICTION WITHIN TWO (2) YEARS OF THE DATE THAT THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THESE LIMITATIONS WILL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY.
You agree to indemnify, defend, and hold Credit Union and its affiliates, officers, directors, employees, consultants, agents, service providers and licensors harmless from any and all third party claims, liability, damages, and/or costs (including but not limited to reasonable attorneys' fees) arising from your use of the Service, our reliance on the Transfer instructions and other information you provide, the performance or non-performance of other financial institutions, or other signers, owners or users of your Accounts.
19. Disclosure Access
Credit Union members may access Our Electronic Fund Transfer (EFT) disclosure by viewing our Account Information Brochure (AIB) at nusenda.org. Non-Credit Union members should consult their financial institution for their EFT disclosures.
20. Contacting Us
If you have any questions about this Service or this Agreement, you may contact us at the phone number or postal address below:
Nusenda Federal Credit Union
505-889-7755 | 800-347-2838
P.O. Box 8530
Albuquerque, NM 87198
Mobile Capture, Remote Deposit Capture, Online Bill Payer and Business Internet Banking
If an unauthorized person uses your user ID, password, and/or personal security questions to gain access to the Online Banking Service, we will complete all transactions as instructed. This is why it is important for you to notify us if your user ID, password, and/or personal security questions have been compromised in some manner. Until you do so, we may treat all instructions as having been authorized by you. We will have no liability for any unauthorized transactions other than as provided by federal laws and regulations governing electronic funds transfers. Please review the liability provisions in Account Information Brochure relating to your rights and obligations if someone uses your access security codes or information without your permission.
Mobile Capture and Remote Deposit Capture
These terms (as amended and/or supplemented, this "Agreement") govern Member's use of Nusenda Federal Credit Union's ("Credit Union") Remote Deposit / Mobile Deposit Service ("Remote Deposit / Mobile Deposit" or "Service"). Credit Union offers Remote Deposit / Mobile Deposit under this Agreement only in association with one or more deposit accounts maintained by Member at Credit Union. The terms, provisions and conditions of this Agreement do not replace, but supplement, any and all other agreements (whether now or in the future) that govern any account maintained by Member at Credit Union (whether now or in the future) or any other Credit Union services utilized by Member (whether now or in the future). Member's use of the Service is Member's acknowledgement of and acceptance of the following terms and conditions.
Terms and Conditions
1. General Description of Remote Deposit / Mobile Deposit
Subject to the terms, provisions and conditions of this Agreement, Credit Union will provide Remote Deposit / Mobile Deposit to Member, to allow Member to make deposits to Member's checking, money market accounts and the primary savings account, to the extent Credit Union authorizes Member to use Remote Deposit / Mobile Deposit for such account (each such deposit account an "Account" and, collectively, the "Accounts") from Member's home or office by either scanning checks on a desktop scanner or capturing check images on a mobile device. These images and information required will then be delivered hereby to Credit Union or Credit Union's designated processor (a "Processor"). Member may make deposits to IRA accounts, Member agrees that all IRA deposits will be considered Current Year contributions and Member bears the sole responsibility for all tax consequences from the deposit. The terms Credit Union and Processor may be used interchangeably when used in relation to any services performed by a Processor on behalf of Credit Union including, but not limited to, the receipt and processing of images and check data and any notices related thereto. The scanner or mobile device must capture an image of the front and back of each Check (as herein defined) to be deposited (each an "Image" and, if more than one, "Images") in accordance with the Procedures (as herein defined), must read and capture the magnetic ink character recognition ("MICR") line on each check and must read and capture all such other data and information as is required by this Agreement. After capture of the Images, the MICR line on each check and all other required data and information from each check, Member will transmit one or more files containing the Images, the MICR line from each check and all other required data and information from or pertaining to all checks, data and other required information (each such file a "File" and, if more than one, "Files") to Credit Union or Processor via the Internet. Subject to compliance with the terms, provisions and conditions of, and as provided in, this Agreement, and subject to Credit Union's Funds Availability Policy Credit Union will provisionally credit the Account or Accounts designated by Member for the amount of the deposit(s) to which the File(s) pertains on the day of receipt of the File(s) and enter the images of the checks into the collection process in accordance with the provisions of Credit Union's then current Disclosure for Personal Accounts pertaining to the Account(s) into which the deposit is to be made (the "Deposit Agreement") and this Agreement. Funds from deposits may not be available for immediate withdrawal and are subject to Credit Union's Funds Availability Policy. Member acknowledges and agrees that Credit Union may discontinue, and/or change the terms of, Remote Deposit / Mobile Deposit or any related content, features, products or services associated therewith, at any time without notice or liability to Member or any third party. Member agrees to comply with and complete any Member training requirements of Credit Union for the Remote Deposit / Mobile Deposit Service.
2. System Requirements
Member understands it must, and hereby agrees to, at its sole cost and expense, use computer hardware and software that meet all technical requirements for the proper delivery of Remote Deposit / Mobile Deposit and that fulfills Member's obligation to obtain, and maintain, secure access to the Internet. Member understands and agrees it may also incur, and shall pay, any and all expenses related to the use of Remote Deposit / Mobile Deposit, including, but not limited to, telephone service or Internet service charges. Member is solely responsible for the payment of any and all costs and expenses associated with meeting and maintaining all technical requirements and additional items necessary for the proper use of Remote Deposit / Mobile Deposit. Member understands and agrees that it is solely responsible for the operation, maintenance and updating of all equipment, software and services used in connection with Remote Deposit / Mobile Deposit and the cost thereof, and Member hereby agrees that it will perform, or cause to be performed, all vendor recommended maintenance, repairs, upgrades and replacements, and such performance shall be rendered by properly trained personnel. Credit Union is not responsible for, and Member hereby releases Credit Union from any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet. Credit Union is not responsible for, and Member hereby releases Credit Union from any and all claims or damages resulting from, or related to, defects in or malfunctions of Member's computer hardware or software, or failures of or interruptions in any electrical, telephone or Internet services. Credit Union hereby advises Member, and Member hereby agrees to scan its computer hardware and software on a regular basis using a reliable computer virus detection product in order to detect and remove computer viruses. In connection with its use of Remote Deposit / Mobile Deposit, Member shall only use the hardware described in the Frequently Asked Questions section of Credit Union's website (nusenda.org) or such other hardware as is approved in advance by Credit Union and shall only use such software as is approved in advance by Credit Union.
All right, title and interest in and to (a) any and all computer programs, including, but not limited to, the object and source codes therefore, and any and all updates, upgrades, fixes and enhancements thereto and any and all documentation, user guides and instructions pertaining thereto (everything in this clause (a), collectively, "Software"), (b) Remote Deposit / Mobile Deposit Procedure Manual (defined herein below) and (c) any and all users guides, instructions and other documentation provided to, or used by, Member in connection with the Service (everything in this clause (c) together with the Remote Deposit / Mobile Deposit Procedure Manual, collectively, the "Documentation") shall be, and remain, the property of Credit Union or any third party Software provider, as applicable. Unless otherwise expressly authorized, Member may not (a) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or Service; (b) copy or reproduce all of any part of the technology or Service; and (c) interfere, or attempt to interfere, with the technology or Service.
3. Checks Deposited and Security Interest
Member hereby agrees that it will only scan and deposit a check(s) as that term is defined in Federal Reserve Board Regulation CC ("Reg CC"). Member agrees that the image of the check that is transmitted to Credit Union (each such check and other item a "Check" and, if more than one, "Checks") shall be deemed an "item" within the meaning of Article 4 of the Uniform Commercial Code as in effect in New Mexico. Member further agrees that it will not remotely deposit any check(s) or other item(s) that: (a) are payable to any person or entity other than Member, (b) are drawn, or otherwise issued, by Member or any affiliate of Member on any account of Member or of such affiliate, (c) are prohibited by Credit Union's then current procedures pertaining to the Service (the "Procedures") or are in violation of any law, rule or regulation, (d) Member knows or suspects, or should know or suspect, is fraudulent or otherwise not authorized by the owner of the account on which the Check is drawn, (e) have not been previously endorsed by a Credit Union and are either "substitute checks" (as defined in Reg CC or other applicable federal law or regulation) or "image replacement documents" that purport to be substitute checks, without Credit Union's prior written consent, (f) are drawn on financial institutions that are located outside of the United States or Territories of the United States, (g) is a Remotely Created Check, as that term is defined in Reg CC, (h) any single item or combination of items totaling $10,000 or more per business day, or (i) which are not acceptable to Credit Union for deposit into a deposit account as provided in the Deposit Agreement, which is incorporated herein by reference and made a part hereof (Checks described in clauses (a) through (h) each a "Prohibited Check" and, collectively, "Prohibited Checks"). If Member deposits a Prohibited Check, Member agrees to indemnify and reimburse Credit Union for, and hold Credit Union harmless from and against, any and all losses, costs and expenses (including reasonable attorney's fees) Nusenda Credit Union may incur associated with any warranty, indemnity or other claim related thereto. Furthermore, if, after first having obtained Credit Union's written consent to do so, Member provides Credit Union with an electronic representation of a substitute check for deposit into an Account instead of an original Check, Member agrees to indemnify and reimburse Credit Union for, and hold Credit Union harmless from and against, any and all losses, costs and expenses (including reasonable attorney's fees) Credit Union incurs because any such substitute check resulting from such electronic representation does not meet applicable substitute check standards and/or causes duplicate payments.
4. Scanning of Checks and Transmission of Files
Member shall properly install and use all software and hardware required by this Agreement or otherwise required for, or related to, the use of Remote Deposit / Mobile Deposit. Member shall (a) restrictively endorse each Check to be deposited in the proper location as follows:
The back of each item must include the following:
- The words "For Mobile Deposit at Nusenda Credit Union"
- The Membership Number
- The Account Number to which it is being deposited
- Payee's Endorsement
- Back of item
- For Mobile Deposit at Nusenda Credit Union
- Member # 0000000, Account # 0
- Payee's Endorsement
(b) scan the front and back of each Check to be deposited and thereby capture the image of the front and back of each Check and capture the MICR encoding on, and any other required data from, each Check and
(c) transmit the File containing the images of, the MICR line from and all other required data and information from or pertaining to, such Checks and other information to Credit Union or its Processor in accordance with the Procedures, a copy of which Procedures have either heretofore been, or are herewith, provided to Member by Credit Union, and Member acknowledges receipt thereof. Credit Union reserves the right to amend the Procedures, with or without prior notice to Member.
Member agrees to, at all times, (a) comply with the Procedures, (b) safeguard the confidentiality and security of the Procedures, Security Procedures and all other proprietary property or information Credit Union provides to Member in connection with Remote Deposit / Mobile Deposit and (c) notify Credit Union immediately if Member has any reason to believe the security or confidentiality required by this provision has been or may be breached. Member acknowledges, understands and agrees the Security Procedures are not designed for the detection of errors. Credit Union is not, and will not be, obligated to detect errors by Member or others, even if Credit Union takes certain actions from time to time to do so.
To ensure accuracy, Member shall balance the dollar amount of each deposit to the sum of the Checks prior to transmitting the File in accordance with the Procedures. Member may send multiple Files to Credit Union or Processor throughout the day. Member shall not make deposits in excess of the limits established by Credit Union for the Member's Remote Deposit / Mobile Deposits (the "Scan Limit") Credit Union is authorized to determine and to change the Deposit Limit for the Member in Credit Union's sole discretion at any time. If the total dollar value of the Files sent by Member to Credit Union exceeds the Scan Limit, Credit Union may, at its option, refuse to accept the File that exceeds the Scan Limit, or Credit Union may accept and process the File. Member agrees not to exceed the Scan Limit. A File is considered received by Credit Union when a complete copy of such File has been written on a Credit Union electronic storage device in conformity with Credit Union's technical and operational requirements. For purposes of determining when a File has been delivered and received, Credit Union's records shall be determinative. A File which is not balanced in accordance with the Procedures shall be deemed to have been received on the business day following the business day on which the File is actually received by Credit Union ("business day" means any day which Credit Union is open to conduct substantially all of its services, but shall not include Saturday, Sunday or federal holidays). Credit Union reserves the right to change the number of Files that may be transmitted in a day and the Scan Limit. All such changes shall be effective immediately and may be implemented prior to Member's receipt of notice thereof. Member may contact Credit Union during normal business hours to verify the current number of Files that may be transmitted in a day and the Scan Limit.
5. Maintenance and Destruction of Original Check
Member shall mark the original Check "Processed" or "Scanned" before or during the process of scanning the Check in accordance with Section 4 of this Agreement. Member shall securely store all original Checks for a period of forty-five (45) days after Member has received notice from Credit Union that the File containing the images of such Checks has been accepted (such period the "Retention Period"). During the Retention Period, Member shall take appropriate security measures to ensure that: (a) only authorized personnel shall have access to original Checks, (b) the information contained on such Checks shall not be disclosed, (c) such Checks will not be duplicated or scanned more than one time and (d) such Checks will not be deposited or negotiated in any form. Member shall destroy original Checks upon the expiration of the Retention Period applicable to such Checks. Member will use commercially reasonable methods of destruction approved by Credit Union to destroy original Checks after expiration of the Retention Period. Member hereby indemnifies Credit Union for, and holds Credit Union harmless from and against, any and all claims, demands, actions, causes of action, losses and damages, of whatever nature or kind, and regardless of the theory upon which the same is (are) based, caused directly or indirectly by, arising out of, related to, in connection with or resulting wholly or partially from, the destruction of original Checks by Member.
Member will promptly (but in all events within 5 business days) provide any retained Check (or, if the Check is no longer in existence, a sufficient copy of the front and back of the Check) to Credit Union as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check.
6. Image and MICR Quality
Each File transmitted by Member to Credit Union shall contain Images of the front and the back of the Checks scanned and remotely deposited by Member. Each Image of each Check shall be of such quality that the following information can clearly be read and understood by sight review of such Image:
- (a) The amount of the Check;
- (b) The payee of the Check;
- (c) The signature of the drawer of the Check;
- (d) The date of the Check;
- (e) The Check number;
- (f) The information identifying the drawer and the paying Nusenda Credit Union that is preprinted on the Check, including the MICR line; and
- (g) all other information placed on the Check prior to the time an image of the Check is captured, such as any required identification written on the front of the Check and any indorsements applied to the back of the Check.
Each Image shall also meet all standards for image quality established by the American National Standards Institute ("ANSI"), the Board of Governors of the Federal Reserve or any other regulatory agency, clearing house or association.
Member shall also capture and transmit to Credit Union the full-field MICR encoding on each Check. In accordance with the Procedures, Member shall ensure that the following information is captured from the MICR line of each Check:
- (aa) the American Bankers Association routing transit number ("RTN");
- (bb) the number of the account on which the Check is drawn;
- (cc) when encoded, the amount of the Check; and
- (dd) when encoded, the serial number and the process control field of the Check.
7. Receipt of File
Member agrees that Member shall be solely liable for, and Credit Union shall not have any liability whatsoever to Member for, any File or the Images or other information contained therein that are not received by Credit Union or for any File or the Images or other information contained therein that are intercepted or altered by an unauthorized third party.
Member agrees that Credit Union has no obligation to accept a File and, therefore, may reject any File or the Images or other information contained therein submitted by Member. Credit Union has no obligation to notify Member of the rejection of a File or the Images or other information contained therein. Credit Union shall have no liability to Member for the rejection of a File or the Images or other information contained therein or for the failure to notify Member of such rejection. Upon receipt of a File submitted by Member, Credit Union may examine such File and the Images and other information contained therein to ensure that Member has complied with this Agreement and followed the Procedures. If Credit Union determines that Member has not complied with this Agreement or followed the Procedures or if errors exist in the Images or other information contained in the File, Credit Union, in its sole discretion, may either reject the File or elect to correct the error and accept and process the corrected File (a "Corrected File"). As a form of correction, Credit Union may credit Member's Account for the full amount of the deposit and make any necessary adjustments to the Account to correct the error. Credit Union may, at its option, also perform a risk management analysis of one or more Files submitted by Member to detect potentially fraudulent Checks, and, in its sole discretion, Credit Union may reject any such File or the Images or other information contained therein. If after examination of a File and the Images and other information contained therein, Credit Union determines that Member has complied with this Agreement and processed and transmitted the File in accordance herewith and with the Procedures, the File is balanced and the Images meet the requirements of Section 6 of this Agreement, then Credit Union shall accept the File (an "Accepted File") for deposit to Member's Account. Information and data reported hereunder: (a) may be received prior to final posting and confirmation and is subject to correction and (b) is for informational purposes only and may not be relied upon. Member agrees that Credit Union shall have no liability for the content of payment-related information. Notwithstanding the fact that Nusenda Credit Union has accepted a File for deposit, any credit made to Member's Account shall be provisional, and Member shall remain liable to Credit Union for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Credit Union.
8. Provisional Credit and Availability of Funds
Upon acceptance of the File, and subject to Credit Union's Funds Availability Policy, Credit Union will grant Member's Account Provisional Credit (as herein defined) for the total amount of the Corrected File or the Accepted File, as applicable. As used herein, "Provisional Credit" means that the credit is made to Member's Account subject to final payment of the Checks and subject to the terms of the Deposit Agreement. Member and Credit Union agree that Credit Union's Funds Availability Policy applies to Items deposited using this Service and Funds from Deposits may not be available for immediate withdrawal.
9. Laws, Rules and Regulations
Member agrees to comply with all existing and future operating procedures used by Credit Union for processing of transactions. Member further agrees to comply with, and be bound by, all applicable state or federal laws, rules, regulations, orders, guidelines, operating circulars and pronouncements, affecting checks and drafts and ACH transactions, including, but not limited to, all rules and procedural guidelines established by the Federal Trade Commission ("FTC"), the Board of Governors of the Federal Reserve, National Check Exchange ("NCE"), Small Value Payments Member ("SVPCo"), Viewpointe, Endpoint Exchange, the National Automated Clearing House Association ("NACHA"), Electronic Check Clearing House Organization ("ECCHO") and any other clearinghouse or other organization in which Credit Union is a member or to which rules Credit Union has agreed to be bound. The Rules are incorporated herein by reference. These procedures, rules, and regulations (collectively the "Rules") and laws are incorporated herein by reference. In the event of conflict between the terms of this Agreement and the Rules, the Rules will control.
10. Collection of Checks
Credit Union, in its sole discretion, shall determine the manner in which Images shall be presented for payment to the drawee bank. Credit Union, in its sole discretion, shall select the clearing agents used to collect and present the Images, and Credit Union's selection of the clearing agents shall be considered to have been designated by Member. Credit Union shall not be liable for the negligence of any clearing agent. Collection of Checks is also subject to the Rules and the terms of the Deposit Agreement.
11. Contingency Plan
Member agrees that, in the event Member is not able to capture, balance, process, produce or transmit a File to Credit Union, or otherwise comply with the terms hereof or of the Procedures, for any reason, including, but not limited to, communications, equipment or software outages, interruptions or failures, Member will transport the originals of all Checks to the closest office of Nusenda Credit Union and deposit original Checks with Credit Union until such time that the outage, interruption or failure is identified and resolved. The deposit of original Checks at an office of Credit Union shall be governed by the terms and conditions of the Deposit Agreement and not by the terms of this Agreement. Notwithstanding the foregoing, and to the extent applicable, Section 12 of this Agreement dealing with warranties shall apply to the deposit of original Checks.
Member represents, warrants and covenants the following to Credit Union:
(a) Checks Deposited. Member shall only deposit Checks that are authorized by this Agreement, the Procedures and the Deposit Agreement and the Checks do not contain any alterations and Member will only transmit acceptable items for deposit and will handle the original items in accordance with applicable laws, rules and regulations.
(b) Assistance. Member will provide all reasonable assistance to Credit Union and its subcontractors in providing Remote Deposit / Mobile Deposit set forth herein.
(c) Endorsements. Each Item bears all applicable endorsements and in a format as directed by Credit Union.
(d) Image Quality. Each Image transmitted by Member to Credit Union contains an accurate representation of the front and the back of each Check and complies with the requirements of this Agreement;
(e) Accuracy of Information. All data and other information submitted by Member to Credit Union, including, but not limited, to data contained in the MICR line of each Check is complete and accurate and complies with the requirements of this Agreement;
(f) No Duplicates. Member will not: (i) create duplicate Images of the Checks, (ii) transmit a duplicate Image or File to Nusenda Credit Union, or (iii) deposit or otherwise negotiate the original of any Check of which an Image was created. Member further warrants that no subsequent transferee, including but not limited to Credit Union, a collecting or returning bank, drawer, drawee, payee or endorser, will be asked to pay the original Item from which the Image(s) was created or a duplication (whether paper or electronic, including ACH entries) of the Item(s);
(g) No Loss. No Subsequent transferees of the Item(s), including but not limited to Credit Union, a collecting or returning bank, drawer, drawee, payee or endorser, shall sustain a loss as the result of the fact that the Image was presented for payment or returned instead of the original Check;
(h) Information. All information provided by Member to Credit Union is true, complete and accurate and properly reflects the business, financial condition and principal partners, owners or officers, of Member. Member is not engaged in, or affiliated with, any businesses, products or methods of selling other than those disclosed by Member to Credit Union;
(i) Authority and Legality.
- (i) Member is authorized to enter into, and perform its obligations under, this Agreement;
- (ii) The person signing this Agreement on behalf of Member is duly authorized to execute this Agreement;
- (iii) This Agreement is valid and enforceable against Member in accordance with its terms; and
- (iv) The entry into, and performance of, this Agreement by Member will not violate any law, or conflict with any other agreement, to which Member is subject;
- (v) The Member will only use the products and Service for lawful purposes and in compliance with all applicable laws, rules, and regulations;
(j) No Litigation. There is no action, suit or proceeding pending or, to Member's knowledge, threatened which, if decided adversely, would impair Member's ability to carry on its business substantially as now conducted or which would adversely affect Member's financial condition or operations.
- (i) All Checks and business transactions of Member are, and will be, bona fide;
- (ii) All signatures on Checks are authentic and authorized;
- (iii) the Member is a person authorized to collect each item transmitted or is authorized to obtain payment of each item transmitted on behalf of a person entitled to collect such transmitted item;
- (iv) any item transmitted has not been altered;
- (v) the Member will not deposit or otherwise indorse to a third party the original item (the original check) and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the item (either the original item, or a paper or electronic representation of the original item) such that the person will be asked to make payment based on an item it has already paid;
(l)Rule Compliance. Member conducts its business, and submits Checks and Files in compliance with this Agreement, the Procedures, applicable law and the Rules.
(m) Computer Virus. No Files or Checks contain any computer viruses or other harmful, intrusive or invasive codes.
(n) Indemnity. Member agrees to indemnify Credit Union for, and hold Credit Union harmless from and against, any and all claims, losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' fees) arising from a breach of any of Member's warranties, representations and/or obligations under this Agreement or any other agreement between Member and Credit Union, including, but not limited to, the Deposit Agreement, and the terms of this paragraph shall survive the termination of this Agreement.
13. Returned Checks.
If Images of Checks deposited by Member are dishonored or otherwise returned unpaid by the drawee bank, or are returned by a clearing agent for any reason, including, but not limited, to issues relating to the quality of the Image, Member understands and agrees that, since Member either maintains the original Check or has destroyed the original Check in accordance with Section 5 of this Agreement, the original Check will not be returned, and Credit Union may charge back an Image of the Check to Member's Account. Member understands and agrees that the Image may be in the form of an electronic or paper reproduction of the original Check or a substitute check. Unless otherwise instructed by Credit Union, Member agrees not to deposit the original Check if an Image or other debit as previously described is charged back to Member.
14. Fees and Charges
So long as this Agreement remains in effect, Member agrees to pay to Credit Union the normal deposit account service charges established from time to time by Credit Union and, in addition thereto, the fees and charges set forth in the Fee Schedule as provided from time to time hereafter to Member, and all such other fees and charges as may be agreed upon from time to time by Member and Credit Union. Please refer to our separate fee schedule for additional information.
Member authorizes Credit Union to deduct any charges for Remote Deposit / Mobile Deposit from any Account, even if such deduction causes an overdraft in the Account. Should Member fail or refuse to pay any charges under this Agreement, Member agrees to pay all collection costs (including reasonable attorney's fees) which may be incurred by Credit Union. Credit Union shall have the right to increase or decrease charges imposed for Remote Deposit / Mobile Deposit and will notify Member of the changes, to the extent required by law. Member's use of Remote Deposit / Mobile Deposit after changes have been made shall constitute Member's agreement to the same.
In addition to Remote Deposit / Mobile Deposit fees, Member agrees to pay all taxes, tariffs and assessments levied or imposed by any government agency in connection with Remote Deposit / Mobile Deposit, this Agreement, and/or the software or equipment made available to Member (excluding any income tax payable by Credit Union). Member is also responsible for the costs of any communication lines and any data processing charges payable to third parties.
Unless applicable law provides otherwise, this Agreement may be amended by notice sent electronically or by mail to Member at Member's last address known to Credit Union to be effective not less than thirty (30) days after the day transmitted or mailed. Credit Union shall not be bound by any modification of this Agreement unless Credit Union expressly agrees to the modification in writing. Member shall have the right to terminate the Agreement prior to the effective date of amendment. This Agreement supersedes all prior agreements and amendments.
16. Confirmation: Account Reconciliation
Credit Union will provide notice of receipt of deposits to Member's Account on the periodic statement for such Account. Member is responsible for detecting and reporting to Credit Union any discrepancy between Member's records and the records Credit Union provides to Member. If Member does not detect and notify Credit Union of such a discrepancy within 60 days of Member's receipt of any terminal printout, mailed report or periodic statement (each a "Report"), whichever is received first, then such transactions shall be considered correct, and Member shall be precluded from asserting such error or discrepancy against Credit Union. Please refer to your "Account Information" brochure for more information regarding error resolution.
17. Update Notice
Member shall provide written notice to Credit Union of any changes to the information previously provided by Member to Credit Union, including, but not limited to, any additional locations, any change in business, any new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided and method of conducting sales. Such notice must be received by Credit Union within 5 business days of the change.
Member shall provide any additional information requested by Credit Union within 5 days of such request. Credit Union retains the right to: (i) review Member's Checks, Files and business activities from time to time to confirm Member is conducting business as stated by Member at the time of the execution of this Agreement and (ii) re-price or terminate Remote Deposit / Mobile Deposit based on changes to information previously provided to Credit Union by Member.
18. Credit Union's Duties
Credit Union's duties and responsibilities are limited to those described in this Agreement, the Deposit Agreement and any other agreements governing the Accounts. Credit Union will use commercially reasonable care in performing its responsibilities under this Agreement.
19. Credit Union's Responsibilities
Member agrees to monitor its account balances and charges, to promptly notify Credit Union if any Report conflicts with Member's records, and to refrain from acting on information it has reason to believe is erroneous. In all instances, Credit Union's and, if the services of a third party provider are utilized in the provision of Remote Deposit / Mobile Deposit, such third party's sole liability to Member shall be limited to the correction of any errors made. Credit Union shall not be responsible for suspension of performance of all or any of its obligations, responsibilities or covenants hereunder, whether expressed or implied, if at any time, or from time to time, compliance therewith is prevented or hindered by, or are in conflict with, any federal or state law, regulation or rule, the order of any court of competent jurisdiction, any act of God or of the public enemy, war, epidemic, strike, or work stoppages of the U.S. Postal Service and commercial carrier(s), or electric power disruption or shortage, telecommunications failure or computer failures; acts, omissions or errors of any carrier and/or agent operating between Member and Credit Union or Credit Union and any Federal Reserve Bank or other agency utilized to exercise transfers or any recipients of transferred funds; any incorrect, unauthorized or fraudulent use or other fraud by any person other than Credit Union's employees; or, without limiting the generality of the foregoing, any other cause or circumstance beyond Credit Union's control or other conditions or circumstances not wholly controlled by Credit Union, which would prohibit, retard or otherwise affect Credit Union's complete or partial performance under this Agreement.
20. Internet Disclaimer.
Credit Union does not, and cannot, control the flow of any documents, files, data or other information via the Internet, whether to or from Credit Union's network, other portions of the Internet or otherwise. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Member's connections to the Internet (or portions thereof). Credit Union cannot guarantee that such events will not occur. Accordingly, Credit Union disclaims any and all liability arising out of, resulting from or related to, such events, and in no event shall Credit Union be liable for any damages of any kind (whether in contract, in tort or otherwise) that are attributable or in any way related to the Internet infrastructure or Member's or Credit Union's ability or inability to connect to the Internet.
21. Indemnification and Liability; Third Party Claims
Member hereby indemnifies Credit Union and each of its parents, subsidiaries and affiliates and their respective officers, directors, employees, members, partners, agents, insurers and attorneys (each an "Indemnified Party" and, collectively, the "Indemnified Parties") for, and holds each of the Indemnified Parties harmless from and against, all actions, causes of action, claims, damages, liabilities and expenses (including reasonable attorneys' fees) of any nature or kind (including those by third parties) arising out of, or related to, this Agreement, including all actions, causes of action, claims, damages, liabilities and expenses arising out of, related to or resulting from:
- (i) Failure to report required changes,
- (ii) Transmission of incorrect data to Credit Union or
- (iii) Failure to maintain compliance with the Rules,
(b) Nusenda Credit Union's
- (i) provision of Remote Deposit / Mobile Deposit,
- (ii) Credit Union's action or inaction in accordance with, or in reliance upon, any instructions or information received from any person reasonably believed by Nusenda Credit Union to be an authorized representative of Member,
(c) Member's breach of any of Member's representations, warranties, covenants or other agreements or responsibilities under this Agreement and/or
(d) Member's breach or violation of any Rules; provided, however, Member is not obligated to indemnify Credit Union for any damages solely and proximately caused by Credit Union's gross negligence or willful misconduct.
22. Limit of Liability.
(a) ANY PROVISION IN THIS AGREEMENT, ANY OTHER AGREEMENT OR THE RULES TO THE CONTRARY NOTWITHSTANDING, CREDIT UNION SHALL ONLY BE LIABLE FOR DAMAGES SOLELY AND PROXIMATELY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND CREDIT UNION'S LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF
- (i) MEMBER'S ACTUAL DAMAGES OR
- (ii) THE TOTAL FEES PAID BY MEMBER TO NUSENDA CREDIT UNION FOR REMOTE DEPOSIT / MOBILE DEPOSIT.
IN NO EVENT SHALL CREDIT UNION OR ANY PROVIDER BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, LOSSES OR INJURIES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR COST OF COVER) ARISING OUT OF, OR RELATED TO, THE USE BY MEMBER OF REMOTE DEPOSIT / MOBILE DEPOSIT OR ANY SERVICE OR THE FAILURE OF CREDIT UNION OR ANY PROVIDER TO PROPERLY PROCESS AND COMPLETE TRANSACTIONS THEREUNDER, EVEN IF CREDIT UNION OR SUCH PROVIDER(S) HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR INJURIES.
(b) MEMBER ACKNOWLEDGES AND AGREES THAT MEMBER'S USE OF REMOTE DEPOSIT / MOBILE DEPOSIT SHALL BE AT MEMBER'S SOLE RISK, AND THAT REMOTE DEPOSIT / MOBILE DEPOSIT IS PROVIDED BY CREDIT UNION ON AN "AS IS" BASIS.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CREDIT UNION MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, IN LAW OR IN FACT, TO MEMBER OR TO ANY OTHER PERSON, AS TO REMOTE DEPOSIT / MOBILE DEPOSIT OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY, AND CREDIT UNION HEREBY DISCLAIMS ANY AND ALL OF THE SAME. MEMBER AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY NUSENDA CREDIT UNION EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR REMOTE DEPOSIT / MOBILE DEPOSIT TO BE PERFORMED PURSUANT HERETO.
(d) TO THE FULLEST EXTENT ALLOWED BY LAW, AND SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION DEALING WITH CREDIT UNION'S LIABILITY FOR DAMAGES SOLELY AND PROXIMATELY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CREDIT UNION'S LIABILITY TO MEMBER UNDER THIS AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM CREDIT UNION'S FAILURE TO EXERCISE ORDINARY CARE.
(e) CREDIT UNION MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, IN LAW OR IN FACT, TO MEMBER OR TO ANY OTHER PERSON AS TO ANY COMPUTER HARDWARE, SOFTWARE OR EQUIPMENT IN CONNECTION WITH REMOTE DEPOSIT / MOBILE DEPOSIT, INCLUDING, BUT NOT LIMITED TO, MEMBER'S COMPUTER SYSTEMS OR RELATED EQUIPMENT, MEMBER'S SOFTWARE, OR MEMBER'S INTERNET SERVICE PROVIDER OR ITS EQUIPMENT, OR AS TO THE SUITABILITY OR COMPATIBILITY OF CREDIT UNION'S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT MEMBER USES, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CREDIT UNION SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN, OR MALFUNCTIONS OF, MEMBER'S COMPUTER HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY COMPUTER SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY CREDIT UNION TO MEMBER IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM MEMBER TO CREDIT UNION, FROM CREDIT UNION TO MEMBER, FROM MEMBER TO ANY PROCESSOR, FROM ANY PROCESSOR TO CREDIT UNION, OR OTHERWISE NUSENDA CREDIT UNION SHALL NOT BE RESPONSIBLE FOR NOTIFYING MEMBER OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF MEMBER'S COMPUTER HARDWARE OR SOFTWARE.
23. Third Parties; Maintenance
(a) Services from Others: Member may be using special equipment, services or software provided by a third party to assist it in processing Checks and Files hereunder (each a "Third Party" and, if more than one, "Third Parties"). Member
- (i) Agrees that any Third Party is acting as Member's agent in the delivery of Checks and Files to Nusenda Credit Union, and
- (ii) Agrees to assume full responsibility and liability for any failure of that Third Party to comply with the Rules of this Agreement. Credit Union will not be liable for any losses or additional costs incurred by Member as a result of any error by a Third Party or a malfunction of equipment provided by a Third Party. Member shall provide at least 10 days advance written notice to Credit Union in the event it uses any such Third Party. Member is solely responsible for maintaining compliance with the requirements of any Third Party, including obtaining any software updates. Credit Union shall not have any responsibility for any Check or File handled by a Third Party until that point in time when Credit Union accepts and approves a Check or File from such Third Party for processing.
(b) Equipment Maintenance. Member shall be solely responsible for obtaining and properly maintaining its equipment and system requirements, including computer equipment, Internet connectivity, scanning terminals (unless contracted with Credit Union) and any other equipment or items necessary to receive Remote Deposit / Mobile Deposit. Nusenda Credit Union shall not be liable to Member, in any manner whatsoever, for any type of errors, losses, damages or other claims related to Member's failure to do so.
24. Use of Trademarks
Member may not use Credit Union's name or trademarks without the express written consent of Credit Union. If Member is permitted to use any of Credit Union's name, trademarks or promotional materials, Member will not indicate, directly or indirectly, that Credit Union endorses, or is connected in any way with, any of Member's goods or services.
25. Financial Information
Credit Union may from time to time request information from Member in order to evaluate a continuation of Remote Deposit / Mobile Deposit to be provided by Credit Union hereunder and/or adjustment of any limits set by this Agreement. Member agrees to provide the requested financial information immediately upon request by Credit Union, in the form required by Credit Union.
Member authorizes Credit Union to investigate or reinvestigate at any time any information provided by Member in connection with this Agreement or Remote Deposit / Mobile Deposit and to request reports from credit bureaus and reporting agencies for such purpose. Upon request by Credit Union, Member hereby authorizes Credit Union to enter Member's business premises for the purpose of ensuring that Member is in compliance with this Agreement. If Member refuses to provide the requested financial information, or if Credit Union concludes, in its sole discretion, that the credit risk of Member is unacceptable, or if Member refuses to give Credit Union access to Member's premises, Credit Union may terminate Remote Deposit / Mobile Deposit according to the provisions hereof.
26. Confidential Information
(a) Credit Union Information
Member acknowledges that the Technology and Services contain valuable trade secrets, which are the sole property of Credit Union or its subcontractors ("Credit Union Confidential Information"), and Member agrees to hold same in strict confidence and disclose only to those agents whose duties reasonably require access to same, provided that all such agents are informed of such use or disclosure restrictions as set forth herein. Member agrees to use no less than reasonable care to prevent other parties from learning of these trade secrets. Member will take no less than all reasonable steps to prevent the unauthorized use, disclosure, duplication or access to the Credit Union.
(b) Member Information
Credit Union acknowledges that Member's information may contain information regarding its Members, which are the sole property of Member ("Member Confidential Information," and, collectively with Financial Institution Confidential Information, "Confidential Information"), and Credit Union agrees to hold same in confidence and will protect Member Confidential Information pursuant to Credit Union's privacy policies.
The obligations of this Section 26 shall not apply to any information that:
- (a) Is now, or hereafter becomes, through no act or failure to act on the part of the receiving party (the "Receiver"), generally known or available;
- (b) Is known by the Receiver at the time of receiving such information, as evidenced by the Receiver's records;
- (c) Is hereafter furnished to the Receiver by a third party, as a matter of right and without restriction on disclosure;
- (d) Is independently developed by the Receiver without reference to or use of the disclosing party's information; or
- (e) Is required to be disclosed by law or in connection with a legal or administrative proceeding, provided that the party to whom the information belongs is given prompt prior written notice of such proposed disclosure, if not otherwise prohibited.
(d) Unauthorized Use.
Both parties acknowledge that the unauthorized use, disclosure or duplication of trade secrets or other confidential information belonging to each party shall constitute a material breach of this Agreement and is likely to cause irreparable injury to the owner, for which there is no adequate remedy at law. Accordingly, Credit Union and Member each hereby agree that the other party may seek injunctive relief against it to prevent or remedy any breach of the confidentiality obligations described herein without the other party being required to post bond, or if bond is required, only nominal bond.
27. Attorneys' Fees
In the event of any arbitration or other adversarial proceeding between the parties concerning this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs in addition to any other relief to which it may be entitled.
This Agreement and all the terms and provisions herein shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
No right or interest hereby conferred shall be assignable without the prior written consent of the other party, and any assignment made without such consent shall be null and void; provided, however that Credit Union may assign this Agreement or any part of it to any of Credit Union's affiliates or to a successor of Nusenda Credit Union by merger or acquisition upon written notice to Member.
30. No Third Party Beneficiaries
This Agreement shall not be construed to confer any rights or remedies upon any person not a party to this Agreement, whether as a third party beneficiary or otherwise, against Member or Credit Union, their respective successors, assigns and affiliates.
31. Captions and Headings
The captions and headings contained in this Agreement are for convenience of reference only and shall not be used to limit the applicability or meaning of any provisions of this Agreement.
32. Entire Agreement
The terms of the Deposit Agreement, all other agreements with Credit Union pertaining to the Accounts and the Rules, are incorporated by reference and made a part of this Agreement. In the event of any inconsistency between such agreements, the Rules and this Agreement, the provisions of this Agreement shall control to the extent necessary. Member agrees that this Agreement is the entire statement of the terms and conditions which apply to the subject matter hereof. This Agreement supersedes any prior agreements between the parties relating to Remote Deposit / Mobile Deposit.
33. No Waiver
No delay or failure on the part of Credit Union in exercising any of Credit Union's rights under this Agreement shall constitute a waiver of such rights, and no exercise of any remedy hereunder by Credit Union shall constitute a waiver of its right to exercise the same or any other remedy hereunder. Except for changes made in accordance with this Agreement, no deviation, whether intentional or unintentional, will constitute an amendment of this Agreement or will constitute a waiver of any right or duty of either party.
In the event all or any part of any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable, in any respect, the remaining provisions or parts thereof shall be binding and enforceable as if any such invalid, illegal or unenforceable provision had never been contained herein.
This Agreement is an agreement between parties who have carefully reviewed these terms and represent that they have reviewed and understand this Agreement and the transactions contemplated by this Agreement, and this Agreement is entered into by both parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner, without regard to such factors as the party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties or the domicile of any party.
In addition to the denial, suspension, revocation and termination provisions in this Agreement, Credit Union may immediately terminate the Service or any portion of the Service if Credit Union determines that such Service or portion of any Service is in violation of the any other law or regulation, or in its sole discretion and without notice, decides to cease providing this Service. Member may terminate the Service with notice to Credit Union. Upon the termination of this Agreement for any reason:
- (a) Member's access to, and use of, the Services will terminate;
- (b) Member will return to Credit Union any and all Credit Union Services, equipment, software, documentation, Technology or other deliverables provided to Member by Credit Union, including any copies thereof held by Member;
- (c) Credit Union will deliver to Member all Member documentation and other materials stored by Member on Credit Union's or its subcontractor's network; and
- (d) Each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information or destroy same, and provide written verification of same.
Notwithstanding the foregoing, Credit Union's obligations with respect to subsections (c) and (d) shall be subject to Credit Union's record retention policies and applicable laws and regulations. Notwithstanding the foregoing, Credit Union may immediately terminate this Agreement without notice if, in Credit Union's sole discretion, Credit Union determines that Member has abused Remote Deposit / Mobile Deposit or Credit Union believes that it will suffer a loss or other damage if the Agreement is not terminated. Credit Union's election to terminate this Agreement is in addition to any and all other remedies that may be available to Credit Union and will not affect any obligations Member may have to Credit Union. Any reinstatement of Remote Deposit / Mobile Deposit under this Agreement will be at Credit Union's sole discretion and must be agreed upon in writing by an authorized representative of Credit Union.
Credit Union and Member agree that Sections 3, 5, 12, 13, 21, 22, 24, 26, 27, 28, 29, 30, 31, 33, 34, and 37 shall survive the termination of this Agreement.
37. Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Mexico, without reference to its conflict of law's provisions, and applicable federal law. The Parties further agree and voluntarily consent to the jurisdiction of courts located in Albuquerque, New Mexico as the sole and exclusive venue for any court proceedings related to this agreement.
Any notice required hereunder to Member shall be sent electronically or by mail to Member at Member's last address known to Credit Union not less than thirty (30) days after the day of transmitted or mailed.
Any notice required hereunder to Credit Union shall be given by electronic mail to: [email protected] or to such other electronic mail address or by other method as designated by Credit Union by notice to Member.
Online Bill Payment Service
Agreement: All references to "Bill Payment Service" reflect the service offered by Nusenda Credit Union (Credit Union). All terms and conditions are applicable to all electronic/telephonic remote access devices used to access Nusenda Credit Union's Online Bill Payment Service and software. This document, together with the brochure called "Account Information" provides the terms and conditions of the Credit Union's "Bill Payment Service."
If you have an active account permitted for Pay A Bill, Bill payment Services at your Financial Institution you may use the online or mobile bill payment service (the “Bill Payment Service”).
2. Payment Dates
With Bill Payment Service, you can schedule a bill payment for a single one-time, future day or as a recurring payment. Any recurring payments scheduled to be processed on Saturday, Sunday, or any Nusenda-observed holiday will be processed on the prior business day. The day on which we process a bill payment is when the status shows as “Processed.”
3. Use of Bill Payment Service
You must provide enough information about each bill payee to direct a payment to that payee and permit the payee to identify the correct account to credit with your payment. While most payees can be paid through the Bill Payment Service, we reserve the right to refuse to pay certain payees. In this event, we will notify you that Bill Payment Service cannot be used for the payee. We do not recommend that you use bill payments to pay taxes, to make federal, legal, or court-ordered payments, to pay municipal or state utilities, or to settle any securities transaction and any such payments that you choose to schedule are at your own risk. Nusenda Credit Union will not be liable for any late fees, claims, or damages resulting from your use of the Bill Payment Service to make any of these types of payments. You can only make bill payments to payees with United States addresses.
4. Bill Payment Transfer Methods
Your Bill Payment Service payment will be made either by transferring funds electronically (Automated Clearing House or “ACH” transaction) or by sending a paper check to the payee. ACH transactions will be subject to the rules of the National Automated Clearing House Association (NACHA). Payments made by paper check will be debited to your account as any other personal check. If you authorize a recurring payment to any payee, those payments will continue until the specified end date unless you cancel the recurring payment or there is not enough available balance to allow the payment. You assume the risk of loss due to an overpayment to the payee on any payment you initiate using the Bill Payment Service.
5. Funding Account
When you instruct us to make a payment through the Bill Payment Service, your Nusenda checking account will be utilized to process scheduled payments. The designated originating account must be an account that is accessible through the Services. If you do not have an active account, you may not use Bill Payment Service.
6. Scheduling Payments
The earliest possible “Send” Date and “Deliver” Date will be displayed in the Bill Payer Tab for each payee. In general, you will need to allow at least three (3) business days to ensure on-time payment for an ACH transaction and seven (7) business days if the payment is to be made by issuing and mailing a paper check to the payee. If you are not sure whether a payment will be sent by ACH or paper check, you should allow at least ten (10) business days before the payment due date (not including any applicable grace period). Nusenda Credit Union is not responsible for delays in the U.S. mail or for processing delays by the payee. Nusenda Credit Union is not liable for any late charges imposed by the payee except as otherwise provided under this Agreement.
7. Cancelling Payments
Nusenda Credit Union withdraws funds from the designated originating account on the Processed Date. You may use the Bill Payment Service to cancel or edit any scheduled bill payment until we begin processing it.
8. Available Balance
You are responsible for ensuring there is enough available balance in the designated originating account on the Processing Date to cover the full amount of any payment you instruct us to make through the Bill Payment Service. Nusenda Credit Union will not complete a bill payment transaction if there is not a sufficient available balance in the designated originating account (including funds available through any overdraft line of credit or automatic transfer feature) on the Processed Date. If there is not enough available balance in your designated originating account on the Payment Date, no subsequent bill payments will be processed until there is enough available balance in the designated originating account. Your account may be assessed a fee under the terms of the Account Agreement applicable to the designated originating account.
9. Schedule of Fees and Service Charges
The current fees for Bill Pay are included in Nusenda’s Rate & Fee Schedule. Regular account fees and service charges (such as fees for overdraft and nonsufficient funds transactions) will apply to services and transaction requested through Bill Pay as they would apply to transactions and services effected through other means. Please review Nusenda’s Rate & Fee Schedule for a listing of such fees. You may obtain a copy at any time at Nusenda.org or from Nusenda on request.
eBills is a free service through which you can receive an electronic version of your bill (“eBill”) from a participating payee (“Biller”). Once you sign up for the eBills service, the Biller may stop sending you paper bills. To sign up for the eBills service, you must first have an online account with the Biller. Then you need to enroll for the eBills service through our Bill Payment Service using the credentials you use to access your online account with the Biller. eBills can be viewed in the Bill Payment Services. You are solely responsible for maintaining current contact information, as well as usernames and passwords, with the Biller. We may, at the request of the Biller, provide to the Biller your email address, service address, or other data specifically requested by the Biller at the time of activating the eBills service for that Biller. The presentment of your first eBill may vary from Biller to Biller, depending on the billing cycle of each Biller. Each Biller may deny your request to receive eBills through the eBills Service at any time. We will make commercially reasonable efforts to present all your eBills promptly. In addition to notification within the eBills service, we may send an email notification to the email address listed for your account. It remains your responsibility to periodically log on to the Bill Payment Service and check on the delivery of new eBills. It remains your responsibility to keep your accounts with each Biller current. To cancel eBills, you should cancel eBills through our Bill Payment Service and contact each Biller to instruct such Biller to resume sending you paper statements. Cancellation may take up to sixty (60) days, depending on the billing cycle of each Biller. Any discrepancies or disputes regarding the accuracy of your eBills must be addressed with the appropriate Biller directly. You agree to indemnify and hold Nusenda Credit (and its affiliates and third-party providers) harmless for any losses or claims arising from or related to your use of the eBills service.
Users that enroll to receive their eBill can choose to have their payment made automatically by enrolling in AutoPay.
12. Text and Email Alerts
You may request automated alert messages to be sent by text or email. We offer alert messages to notify you of a variety of events and circumstances. We may make new alerts available from time to time or discontinue old alerts. The frequency with which you will receive alert messages depends on the number and types of alerts you request and on whether you enter into an account transaction that triggers an alert. Alert messages will be sent to the mobile phone number or email address you have specified. Alert messages may be delayed or prevented by a variety of factors. We neither guarantee the delivery nor the accuracy of the contents of any alert. We will not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
13. General Provisions for All Text Alerts
By requesting text services, you agree that we may send text messages to the mobile phone number you specified. Text alerts are supported by most mobile carriers, including Verizon Wireless, AT&T, T-Mobile®, MetroPCS, Boost, Virgin Mobile, U.S. Cellular®, and others. Neither Financial Institution nor the applicable mobile carrier is liable for delayed or undelivered messages. Your mobile carrier’s message and data rates may apply. Message frequency varies based on user activity. If you have questions about Alerts, call your Financial Institution’s Customer Service.
Business Internet Banking
This Agreement contains the terms for the Business Internet Banking system that allows for electronic access to your accounts at Nusenda Federal Credit Union (Credit Union). You agree to accept the terms and conditions of this agreement. From time to time Credit Union may amend any of the terms and conditions contained in the agreement. Such amendments become effective as stated on any notice sent or made available to the Company.
This Agreement also applies to any other agreements for services used by the Company including agreements for ACH Origination Services, Wire Transfers, and Positive Pay Services.
1. System Access
We will ordinarily provide you with access to the Business Internet Banking system 24 hours a day, seven days a week. However, we reserve the right to suspend the service from time to time as we deem appropriate. If we cannot provide the service or if the service is delayed by failure of transmission facilities, equipment failure, software failure or other conditions that we cannot control, we are not responsible.
To access the Business Internet Banking system you will need a computer with Internet access and web browser that supports 128 bit encryption. You are responsible for the set up and maintenance of your computer. We are not responsible for any electronic virus or viruses that you may encounter.
Credit Union has the right to monitor and review all activity and transactions conducted on the Service. Credit Union reserves the right to discontinue the Service, or any of the services referenced, at any time.
The Company is solely responsible for controlling the Company's distribution and safekeeping of, and access to, security procedures, personal identification numbers (PINS), initial passwords, hardware tokens, and any other confidential code Credit Union may assign. Any transaction request accompanied by an appropriate password or PIN will be deemed made by an authorized representative of the Company. The Company agrees that its use of Internet Banking and any related services are at the Company's risk and Credit Union shall not be liable for any loss incurred by the Company of any breach of security.
You will indemnify Credit Union and hold it harmless for any loss or expense caused by any person with the apparent authority to access the Service. You agree to (a) comply with the Guides and procedures that we provide you; (b) take reasonable steps to safeguard the confidentiality and security of the security codes; (c) closely and regularly monitor the activities of employees who access the Service; and (d) notify Credit Union immediately if you believe any user IDs and/or passwords have been lost, stolen, used without permission, or otherwise compromised.
Each time you make a transfer or payment with a Service, you warrant that our security procedures are commercially reasonable (based on the normal size, type, and frequency of your transactions). Some of our Services allow you or your Security Administrator to set transaction limitations and establish internal controls. Your failure to set such limitations and implement such controls increases your exposure to, and responsibility for, unauthorized transactions. You agree to be bound by any transfer or payment order we receive through the Services, even if the order is not authorized by you, if it includes your Security Codes or is otherwise processed by us in accordance with our security procedures.
You understand and acknowledge that for increased security and protection you should use a separate computer, which is not used for any other purpose, to access the Internet Banking system. You understand that using the Internet Banking computer for any other purposes may reduce the security of your Internet Banking. You are solely responsible for this risk as well as all other risks of the Internet Banking system.
3. Information Processing and Reporting
We offer a number of Services that require us to receive, process, and report information involving your accounts and transactions. We will not be responsible for determining the accuracy, timeliness or completeness of any information that you or others provide to us. We will not have a duty to interpret the content of any data transmitted to us, except to the limited extent set forth in this Agreement. Unless otherwise agreed in writing, we will not be required (by means of any security procedure or otherwise) to detect errors in the transmission or content of any information we receive from you or third parties.
4. Information You Provide to Us
You assume the sole responsibility for providing us with complete and accurate information in the form and format that we require. We are not responsible for confirming such information, or for monitoring or refusing to process duplicate instructions by you or your agents. For example, if you give us a wire transfer instruction that is incorrect in any way, you agree that we may charge your account for the payment whether or not the error could have been detected by us. We are not obligated to detect errors in your transfer or payment instructions.
5. Your Instructions
You must accurately describe transaction beneficiaries, intermediary financial institutions, and the beneficiary's financial institution in transfer and payment instructions. If you describe any beneficiary or institution inconsistently by name and number, other institutions and we may process the transaction solely on the basis of the number, even if the number identifies a person or entity different from the named beneficiary or institution.
6. Your Review
You acknowledge that it is not possible for the Services to be totally free from operator, programming or equipment error, and that errors in processing and compiling data may occasionally occur (e.g., due to the failure of others to provide accurate information, telecommunication failures, or a breakdown in an electronic data interchange). As such, you agree to review and verify all results and to maintain adequate controls for insuring both the accuracy of data transmissions and the detection of errors. Unless otherwise required by law, our sole responsibility for any reporting errors caused by us will be to reprocess the information for the period in question and to provide corrected reports at our own expense. You agree to maintain adequate backup files of the data you submit for at least ten business days in order to facilitate any needed reconstruction of your transactions (e.g., in the event of a telecommunication failure). If we are unable to provide a Service for any reason, we will take reasonable steps to resume processing, however availability of any Service is not guaranteed and we shall not be liable for any failure or inability to provide any Service.
7. Unauthorized Transactions
We may process any payment or transfer instruction (including an amendment or cancellation instruction) that we believe is transmitted or authorized by you if we act in compliance with the security procedures (e.g., we obtain the Security Code(s)) you and we have agreed upon for the Service. The instructions will be deemed effective as if made by you, and you will be obligated to pay us in the amount of such transactions, even though they are not transmitted or authorized by you.
We may elect to verify the authenticity or content of any instruction (but shall have no obligation to do so), as an alternative security procedure, by placing a call to any authorized signer on your account or any other person designated by you for that purpose. If we are unable to verify an instruction to our satisfaction, we may reject the instruction.
8. Unauthorized Access
If an unauthorized person uses your user ID, password, and/or personal security questions to gain access to the Online Banking Service, we will complete all transactions as instructed. This is why it is important for you to notify us if your user ID, password, and/or personal security questions have been compromised in some manner. Until you do so, we may treat all instructions as having been authorized by you. We will have no liability for any unauthorized transactions other than as provided by federal laws and regulations governing electronic funds transfers. Please review the liability provisions in this agreement relating to your rights and obligations if someone uses your access security codes or information without your permission."
9. Warranty Disclaimer
In no event will we be liable to you for any consequential, incidental or indirect damages arising out of the use, misuse or inability to use our Services, or for any loss of any data, even if we have been informed of the possibility of such damages. Further, we make no warranty, express or implied, to you regarding your equipment, including any warranty of merchantability or fitness for a particular purpose, including but not limited to any Business Internet Banking Services provided to you under this or any other agreement with us. We do not and cannot warrant that Business Internet Banking will operate without errors, or that any or all Business Internet Banking Services will be available and operational at all times. Except as specifically provided in this Agreement, or otherwise required by law, you agree that our officers, directors, employees, agents or contractors are not liable for any indirect, incidental, special or consequential damages under or by reason of any Services or products provided under this Agreement or by reason of your use of or access to Business Internet Banking, including loss of profits, revenue, data or use by you or any third party, whether in an action in contract or tort or based on a warranty. Further, in no event shall the liability of the Credit Union and its affiliates exceed the amounts paid by you for the Services provided to you through Business Internet Banking Services.
Credit Union shall be responsible only for performing the Services expressly provided for in this Agreement and shall be liable only for its negligence in performing those Services. Credit Union shall not be responsible for the Company's acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal, or due authorizations of any Entry received from the Company) or those of any person, including without limitation any Federal Reserve Financial Institution or transmission or communications facility, any Receiver or receiving Depository Financial Institution (including without limitation the return of the Entry by such Receiver or Receiving Depository Financial Institution), and no such person shall be deemed Credit Union's agent. The Company agrees to indemnify Credit Union against any loss liability, or expense (including attorney's fees and expense) resulting from or arising out of any claim of any person that Credit Union is responsible for any act or omission of the Company, or any other person described in this paragraph.
In no event shall Credit Union be liable for any consequential, special, punitive or indirect loss or damage which the Company may incur or suffer in connection with this Agreement, including without limitation, loss of damage from subsequent wrongful dishonor resulting from the Credit Union's acts or omissions pursuant to this Agreement.
Without limiting the generality of the forgoing provisions, or the provisions of the Business Internet Banking Agreement, Credit Union shall be excused from failing 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, emergency conditions or other circumstances beyond the Credit Union's control. In addition, Credit Union shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in Credit Union having exceeded the limitation upon its intra-day net fund position established pursuant to present or future Federal Reserve guidelines or which results in Credit Union violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other United States governmental regulatory authority.
Notwithstanding any other provision to the contrary, in the event of default under the terms of this Agreement by the Company, Credit Union shall have all rights and remedies available at law or in equity.
10. Limitation of Liability
Except as otherwise stated in this Agreement, we will be liable to you only for damages arising directly from our intentional misconduct or gross negligence in the performance of the Services. We will not be responsible for any loss, delay, cost or liability which arises, directly or indirectly, in whole or in part, from: (a) your actions or omissions, or those of third parties that are not within our immediate and reasonable control; (b) your negligence or breach of any agreement with us; (c) any ambiguity, inaccuracy or omission in any instruction or information provided to us; (d) any error, failure or delay in the transmission or delivery of data, records or items due to a breakdown in any computer or communications facility; (e) accidents, strikes, labor disputes, civil unrest, fire, flood, water damage (e.g., from fire suppression systems), or acts of God; (f) causes beyond our reasonable control; (g) the application of any government or funds-transfer system rule, guideline, policy or regulation; (h) the lack of available funds in your Account to complete a transaction; (i) our inability to confirm to our satisfaction the authority of any person to act on your behalf; or (j) your failure to follow any applicable software manufacturer's recommendations or our Service instructions. There may be other exceptions to our liability, as stated in your deposit or other Service agreements with us.
We will not be responsible under any circumstances for special, indirect, or consequential damages that you incur as a result of our actions or omissions, even if we are aware of the possibility for such damages. Our liability and your remedy for actual costs and losses resulting from our actions and/or omissions, whether the claim is in contract or tort, will not exceed six times the average monthly charge for the Service(s) in question for the three months immediately preceding the cost or loss.
Any claim, action or proceeding by you to enforce the terms of this Agreement or to recover for any Service-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs. You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with your Services.
You acknowledge that our Service fees have been established in contemplation of: (a) these limitations on our liability; (b) your agreement to review statements, confirmations, and notices promptly and to notify us immediately of any discrepancies or problems; and (c) your agreement to assist us in any loss recovery effort.
You agree to indemnify, defend and hold us, our parent company, affiliates and subsidiaries, and our respective directors, officers, employees and agents, harmless from and against any claim, damage, loss, liability and cost (including, without limitation, attorney's fees) of any kind which results directly or indirectly, in whole or in part, from: (a) our actions or omissions, if they are in accordance with your instructions or the terms of this Agreement; or (b) the actions or omissions of you, your agents or employees.
We are permitted to terminate any Service immediately if we are no longer able to provide the Service. Termination of any Service does not alter your obligation to pay for such Service up to the date of termination.