CONSUMER MOBILE DEPOSIT AGREEMENT
In this Consumer Mobile Deposit Agreement (the "Agreement"), the words "Bank," "we," "us" or "our" mean Horicon Bank and its successors or assigns. When we use the words "you," "your" or "Customer" we mean each person who has an interest in an account or other relationship which is accessible through our Mobile Deposit Service ("Mobile Deposit").
When you use Mobile Deposit or you permit any other person to use Mobile Deposit, you agree to the terms and conditions we have set out in this Agreement and any instructional material we provide to you regarding Mobile Deposit. This Agreement supplements other agreements between us, including, without limitation, your checking, savings, and other deposit account rules and agreements, as well as the Internet and Mobile Banking Account Access Agreement. Except as otherwise provided in this Agreement, if there is a conflict between the provisions of this Agreement and the Account Opening Disclosures, this Agreement will control as to any conflict relating to Mobile Deposit and access to your accounts via the Internet using a computer or mobile device. In the event of a conflict between the terms and conditions of this Agreement and the Internet and Mobile Banking Account Access Agreement, this Agreement will control as to any issue relating to Mobile Deposit.
Terms and Conditions
1. General Description of Mobile Deposit Service.
Subject to the terms, provisions and conditions of this Agreement, Bank shall provide Mobile Deposit to Customer, which allows Customer to make deposits to Customer's deposit accounts at Bank (each an "Account") that are made available in Internet Banking using a Mobile Device (as defined in Section 2) to create a picture of the checks and deliver the images and information required in this Agreement to Bank or Bank's designated processor (a "Processor"). Customer acknowledges and agrees that a deposit made by Customer using Mobile Deposit is not an "Electronic Fund Transfer" as that term is defined in Federal Reserve Board Regulation E. The terms Bank and Processor may be used interchangeably when used in relation to any services performed by a Processor on behalf of Bank including, but not limited to, the receipt and processing of images and check data and any notices related thereto. The mobile device must capture an image of the front and back of each Check (as defined in Section 3) to be deposited (each an "Image") in accordance with this Agreement. After capture of the Image and all other required data and information from the Check, Customer will transmit a file containing the Image and all other required data and information from or pertaining to the Check (each such file a "File") to Bank or Processor via the Customer's Mobile Device. Subject to compliance with the terms, provisions and conditions of, and as provided in, this Agreement, Bank will provisionally credit the Account or Accounts designated by Customer for the amount of the deposit to which the File pertains on the day of receipt of the File and enter the Image of the Check into the collection process, in accordance with the provisions of Bank's then current deposit account agreement and disclosure pertaining to the Account(s) into which the deposit is to be made (the "Deposit Agreement") and this Agreement. Customer acknowledges and agrees that Bank may discontinue, and/or change the terms of, Mobile Deposit or any related content, features, products or services associated therewith, at any time without notice or liability to Customer or any third party. Customer hereby agrees that Bank shall be the exclusive provider of Mobile Deposit provided in accordance with this Agreement and that Customer will not use the same or similar services of any other party.
2. Hardware and Software.
Customer understands it must, and hereby agrees to, at its sole cost and expense, use a mobile device that meets all technical requirements for the proper delivery of Mobile Deposit and that fulfills Customer's obligation to obtain, and maintain, secure access to the Internet ("Mobile Device"). Customer understands and agrees it may also incur, and shall pay, any and all expenses related to the use of Mobile Deposit, including, but not limited to, telephone service or Internet service charges. Customer 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 Mobile Deposit. Customer understands and agrees that it is solely responsible for the operation, maintenance and updating of all equipment, applications and services used in connection with Mobile Deposit and the cost thereof, and Customer hereby agrees that it will perform, or cause to be performed, all vendor recommended testing, maintenance, repairs, upgrades and replacements. Customer must install and test Customer's Mobile Device, Customer's system, and any other required hardware and software before Customer makes the first deposit through Mobile Deposit. Customer accepts such software "as is", and subject to the terms and conditions of the software agreement that Customer enters into directly with the third-party software provider at the time of download or installation. Bank is not responsible for, and Customer hereby releases Bank from any and all claims or damages resulting from, or related to, any virus or related problems that may be associated with using electronic mail or the Internet. Bank is not responsible for, and Customer hereby releases Bank from any and all claims or damages resulting from, or related to, defects in or malfunctions of Customer's mobile device, software or applications, or failures of or interruptions in any telephone or Internet services. Bank hereby advises Customer, and Customer hereby agrees, to scan its mobile device and applications on a regular basis using a reliable virus detection product in order to detect and remove viruses.
3. Checks Deposited and Security Interest.
Customer hereby agrees that it will only scan and deposit "checks" as that term is defined in Federal Reserve Board Regulation CC ("Reg CC"). Customer agrees that when an image of the check transmitted to Bank (each such check and other item a "Check" and, if more than one, "Checks") is converted to an image replacement document for subsequent presentment and collection, it shall thereafter be deemed an "item" within the meaning of Articles 3 and 4 of the Uniform Commercial Code. When used in this Agreement the term "Check" also refers to the Image and is considered an "item" as used in Articles 3 and 4 of the Uniform Commercial Code. Customer further agrees that it will not remotely deposit any Checks or other items that: (a) are payable to any person or entity other than Customer, (b) are prohibited by Bank or are in violation of any law, rule or regulation, (c) Customer knows or suspects, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the Check is drawn, (d) have not been previously endorsed by a bank 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 Bank's prior written consent, (e) are drawn on financial institutions that are located outside of the United States or Territories of the United States, (f) are not acceptable to Bank for deposit into a deposit account as provided in the Deposit Agreement, which is incorporated herein by reference and made a part hereof, (g) are payable jointly, unless deposited into an account in the name of all payees, (h) are remotely created checks, as defined in Reg CC, (i) are not payable in United States Currency, (j) are not dated more than 6 months prior to the date of deposit, (k) contain any endorsement on the back other than specified in this Agreement, (l) have previously been submitted through Mobile Deposit or through a remote deposit capture service offered at any other financial institution, (m) have been dishonored or returned to Customer unpaid for any reason, (n) are drawn or otherwise issued by the U.S. Treasury, or (o) are Checks drawn on any deposit account on which Customer is an authorized signer. (Checks described in clauses (a) through (o) each a "Prohibited Check" and, collectively, "Prohibited Checks").
In addition to and not in lieu of the preceding paragraph, Customer agrees that once Customer has used Mobile Deposit to deposit a Check, Customer will not present or allow anyone to present that original Check or a substitute Check of that original Check again for deposit through Mobile Deposit or by any other means. You agree that we may debit from your Accounts the aggregate amount of any checks that are deposited more than once. To the extent that funds in your Accounts are insufficient to cover such amount, Bank shall debit the deficiency amount from any other of Customer's account(s) with Bank at Bank's sole discretion.
Customer grants Bank a security interest in all Accounts or other deposits (whether general or special) of Customer at the Bank, and in all funds in such Accounts or other deposits, to secure Customer's obligations to Bank under this Agreement. This security interest will survive termination of this Agreement.
Customer shall endorse each Check to be deposited as follows "For Mobile Deposit Only" with the Customer's account number immediately below the words "For Mobile Deposit Only" or as Bank may otherwise instruct Customer. Customer agrees to follow any and all other procedures and instructions for use of Mobile Deposit as Bank may establish from time to time.
5. Deposit Limits and Restrictions.
For security reasons there are limits and restrictions on deposits using Mobile Deposit. Mobile Deposit will not permit Customer to deposit any Check that is an amount greater than $2,500. Additional deposit restrictions vary and are based on a variety of factors including (but not limited to) the amount of an individual Check and the total amount or number of deposits made using Mobile Deposit during a certain period of time. A Customer's deposit is restricted if Customer:
(a) Deposits a single Check in an amount greater than [$750.00]
(b) Deposits more than [three (3)] Checks per day
(c) Deposits Checks in an amount that in the aggregate exceeds [$1,000.00] per day
(d) Deposits more than [four (4)] Checks per month
(e) Deposits Checks in an amount that in the aggregate exceeds [$3,000.00] per month
If Customer attempts to make a deposit that exceeds any of the above restrictions, Bank will review and may reject such deposit, in Bank's sole discretion. If Bank permits Customer to make a deposit in excess of the restrictions, such deposit will still be subject to the terms of this Agreement and Bank will not be obligated to allow such a deposit at other times. Bank may modify deposit limits and/or restrictions from time to time at Bank's sole discretion. Bank will notify Customer at least 30 days prior to a change to deposit limits and/or restrictions. Customer's continued use of Mobile Deposit after such notification shall constitute Customer's agreement to such change.
6. Cutoffs and Availability of Funds.
If we receive the image of a Check or other item for deposit on or before 4:00 p.m. Central Time (the "Cut-Off Time") on a Business Day, we will consider that day the day of deposit. If we receive the image of a Check or other item for deposit after the Cut-Off Time or on a weekend or on a non-Business Day, we will consider the next Business Day as the day of deposit. Funds deposited using Mobile Deposit will generally be made available to you in one to three business days from the day of deposit, although there may be delays in availability of the funds and we are not responsible for any loss, costs or fees that you may incur as a result of any such delay. A File is considered received by Bank when a complete copy of such File has been written on a Bank electronic storage device in conformity with Bank's technical and operational requirements. To meet the Cut-Off Time, the entire File must be received by Bank prior to the Cut-Off Time, and the File must successfully pass the edits for conformity with the technical requirements. For purposes of determining when a File has been delivered and received, Bank's records shall be determinative. A File which is received after the Cut-Off Time shall be deemed to have been received on the business day following the business day on which the File is actually received by Bank. Bank reserves the right to change the number of Files that may be transmitted in a day, the applicable deposit limit and the Cut-Off Time. All such changes shall be effective immediately and may be implemented prior to Customer's receipt of notice thereof. Customer may contact Bank at 920-485-3040 or 1-888-343-3040 (for calls outside Dodge County) during normal business hours to verify the current number of Files that may be transmitted in a day, the applicable deposit limit and the Cut-Off Time.
7. Maintenance and Destruction of Original Check.
Customer shall stamp the original Check "Processed" before or during the process of scanning the Check. Customer shall securely store all original Checks for a period of fourteen (14) days after Customer has transmitted the item (such period the "Retention Period"). During the Retention Period, Customer shall take appropriate security measures to ensure that: (a) only an account holder 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. Customer agrees to notify Bank immediately by telephone at 920-485-3040 or 1-888-343-3040 (for calls outside Dodge County) and with written notice to Horicon Bank ATTN: EBANKING DEPT, 326 E. Lake St. Horicon, WI 53032, if Customer learns of any loss or theft of any Check. If warranted in Bank's reasonable judgment, Bank may audit and monitor Customer's safeguarding practices, and Customer agrees to cooperate with Bank to permit such monitoring, to confirm Customer has satisfied its obligations under this Agreement.
After the Retention Period expires, if you have verified that the funds have been credited to your Account, you agree to mark the item as "VOID" and physically destroy it to ensure it is not presented for deposit again. Customer will destroy original Checks by shredding or use another commercially reasonable method of destruction approved by Bank to destroy original Checks after expiration of the Retention Period. After destruction of a Check, the Image will be the sole evidence of the original check. Customer hereby indemnifies Bank for, and holds Bank 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 Customer. Customer 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 Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check.
8. Image and MICR Quality.
Each File transmitted by Customer to Bank shall contain Images of the front and the back of the Checks. 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 (both written and numeric);
(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 bank that is preprinted on the Check, including the magnetic ink character recognition ("MICR") line; and
(e) 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 endorsements 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.
Customer shall also capture and transmit to Bank the full-field MICR encoding on each Check. In accordance with the Procedures, Customer shall ensure that the following information is captured from the MICR line of each Check:
(a) the American Bankers Association routing transit number ("RTN");
(b) the number of the account on which the Check is drawn;
(c) when encoded, the amount of the Check; and
(d) when encoded, the serial number and the process control field of the Check.
We reserve the right at our sole discretion to reject any Image for deposit using Mobile Deposit.
9. Receipt of File; Rejection of Checks.
Customer agrees that Customer shall be solely liable for, and Bank shall not have any liability whatsoever to Customer for, any File or the Images or other information contained therein that are not received by Bank or for any File or the Images or other information contained therein that are intercepted or altered by an unauthorized third party. Customer agrees that Bank has no obligation to accept a File and, therefore, may reject any File or the Images or other information contained therein submitted by Customer for any reason and at its sole discretion. Bank has no obligation to notify Customer of the rejection of a File or the Images or other information contained therein. Bank shall have no liability to Customer for the rejection of a File or the Images or other information contained therein or for the failure to notify Customer of such rejection, including, but not limited to, service or late charges that may be imposed against Customer due to Bank's rejection of a File. Upon receipt of a File submitted by Customer, Bank may examine such File and the Images and other information contained therein to ensure that Customer has complied with this Agreement and followed the Procedures (as defined in Section 11). If Bank determines that Customer has not complied with this Agreement or followed the Procedures or if errors exist in the Images or other information contained in the File, Bank, 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, Bank may credit Customer's Account for the full amount of the deposit and make any necessary adjustments to the Account to correct the error. Bank may, at its option, also perform a risk management analysis of one or more Files submitted by Customer to detect potentially fraudulent Checks, and, in its sole discretion, Bank 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, Bank determines that Customer has complied with this Agreement and processed and transmitted the File in accordance herewith then Bank shall accept the File (an "Accepted File") for deposit to Customer's Account. Notwithstanding the fact that Bank has accepted a File for deposit, any credit made to Customer's Account shall be provisional, and Customer shall remain liable to Bank for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Bank.
10. Provisional Credit and Availability of Funds.
Upon acceptance of the File, Bank shall grant Customer's Account Provisional Credit (as herein defined) for the total amount of the Corrected File or the Accepted File, as applicable, subject, however, to the deposit limits set forth in this Agreement. As used herein, "Provisional Credit" means that the credit is made to Customer's Account subject to final payment of the Checks and subject to the terms of the Deposit Agreement. For the purpose of determining availability of funds, Bank may hold funds for the period of time permitted by Bank's funds availability disclosure. Bank further reserves the right to charge to Customer's account at any time, any Check Bank subsequently determines is a Prohibited Check or other item, or is otherwise subject to a chargeback as described in the Deposit Account Agreement. Customer agrees that Bank is not liable for any loss, costs or fees Customer may incur as a result of our chargeback of an ineligible item. In all cases, Customer is responsible for any loss or overdraft plus any applicable fees to Customer's account due to a Check being returned.
11. Laws, Rules and Regulations.
Customer agrees to comply with all existing and future operating procedures used by Bank for processing of transactions. Customer 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, including, but not limited to, all rules and procedural guidelines established by the Board of Governors of the Federal Reserve and the Electronic Check Clearing House Organization ("ECCHO") and any other clearinghouse or other organization in which Bank is a member or to whose rules Bank 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.
12. Collection of Checks.
Bank, in its sole discretion, shall determine the manner in which Images shall be presented for payment to the drawee bank. Bank, in its sole discretion, shall select the clearing agents used to collect and present the Images, and Bank's selection of the clearing agents shall be considered to have been designated by Customer. Bank 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.
13. Contingency Plan.
Customer agrees that, in the event Customer is not able to capture, process, produce or transmit a File to Bank, or otherwise comply with the terms hereof or the Procedures, for any reason, including, but not limited to, communications, equipment or software outages, interruptions or failures, Customer will transport the originals of all Checks to the closest office of Bank and deposit original Checks with Bank until such time that the outage, interruption or failure is identified and resolved. The deposit of original Checks at an office of Bank 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 14 of this Agreement dealing with warranties shall apply to the deposit of original Checks.
Customer represents, warrants and covenants the following to Bank:
(a) Checks Deposited. Customer shall only deposit Checks that are authorized by this Agreement, the Procedures and the Deposit Agreement;
(b) Image Quality. Each Image transmitted by Customer to Bank contains an accurate representation of the front and the back of each Check and complies with the requirements of this Agreement;
(c) Accuracy of Information. All data and other information submitted by Customer to Bank, 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;
(d) No Duplicates. Customer will not: (i) create duplicate Images of the Checks, (ii) transmit a duplicate Image or File to Bank, or (iii) deposit or otherwise negotiate the original of any Check of which an Image was created. Customer further warrants that no subsequent transferee, including but not limited to Bank, 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);
(e) No Loss. No Subsequent transferees of Check(s) or other item(s), including but not limited to Bank, 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;
(f) Information. All information provided by Customer to Bank is true, complete and accurate and, if a business, properly reflects the business, financial condition and principal partners, owners or officers, of Customer. Customer is not engaged in, or affiliated with, any businesses, products or methods of selling other than those disclosed by Customer to Bank;
(g) Authority and Legality. (i) this Agreement is valid and enforceable against Customer in accordance with its terms; and (ii) the entry into, and performance of, this Agreement by Customer will not violate any law, or conflict with any other agreement, to which Customer is subject;
(h) No Litigation. There is no action, suit or proceeding pending or, to Customer's knowledge, threatened which, if decided adversely, would impair Customer's ability to carry on its business substantially as now conducted or which would adversely affect Customer's financial condition or operations;
(i) Transactions. All Checks and business transactions of Customer are, and will be, bona fide. All signatures on Checks are authentic and authorized;
(j) Rule Compliance. Customer conducts its business, and submits Checks and Files in compliance with this Agreement, the Procedures, applicable law and the Rules;
(k) Virus. No Files contain any viruses or other harmful, intrusive or invasive codes;
(l) No Business Purpose. Customer will not use Mobile Deposit for any business purpose.
15. Customer Account Monitoring; Cooperation with Investigations.
Customer agrees to monitor its account balances and charges, to promptly notify Bank if any report conflicts with Customer's records, and to refrain from acting on information it has reason to believe is erroneous. In all instances, Bank's and, if the services of a third party provider are utilized in the provision of Mobile Deposit, such third party's sole liability to Customer shall be limited to the correction of any errors made. Customer agrees to cooperate with Bank in the investigation of any unusual transactions, poor quality transmissions and resolution of customer claims, including by providing, upon request and without further costs, any originals or copies of Checks or other items deposited through Mobile Deposit in your possession and your records related to such Checks or other items.
16. Returned Checks.
If Images of Checks deposited by Customer 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, Customer understands and agrees that, since Customer either maintains the original Check or has destroyed the original Check in accordance with Section 7 of this Agreement, the original Check will not be returned, and Bank may charge back an Image of the Check to Customer's Account. Customer 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 Bank, Customer agrees not to deposit the original Check if an Image or other debit as previously described is charged back to Customer.
17. Fees and Charges.
So long as this Agreement remains in effect, Customer agrees to pay to Bank the normal deposit account service charges established from time to time by Bank and, in addition thereto, the fees and charges set forth in the Rate and Fee Schedule as provided from time to time hereafter to Customer, and all such other fees and charges as may be agreed upon from time to time by Customer and Bank.
Customer authorizes Bank to deduct any charges for Mobile Deposit from any Account, even if such deduction causes an overdraft in the Account. Should Customer fail or refuse to pay any charges under this Agreement, Customer agrees to pay all collection costs (including reasonable attorney's fees) which may be incurred by Bank. Bank shall have the right to increase or decrease charges imposed for Mobile Deposit and will notify Customer of the changes, to the extent required by law. Customer's use of Mobile Deposit after changes have been made shall constitute Customer's agreement to the same.
18. Authentication Method.
Customer is responsible for all Mobile Deposit transactions made or authorized with Customer's username, security key and/or password ("Authentication Method"). Bank has no responsibility for establishing the identity of any person who uses Customer's Authentication Method. By accessing Mobile Deposit with Customer's Authentication Method, Customer authorizes Bank to complete the requested transaction(s) through Mobile Deposit. Any requests or instructions Bank receives from Customer through Mobile Deposit shall be considered "in writing" under all applicable law and shall have the same force and legal effect as writing signed by Customer. This includes, but is not limited to, inquiries, deposit transactions, Checks or other items deposited, Images, Files, changes to accounts or services, or any other communication you provide to us through Mobile Deposit using Customer's authentication method.
19. Problems in Transmission.
By using Mobile Deposit, Customer accepts the risk that an Image or File may be intercepted or misdirected during transmission. Customer understands that, while Bank and its service providers have established certain security procedures such as firewalls, codes and data encryption designed to prevent unauthorized access to Customer's Accounts or transactions, there can be no assurance that Mobile Deposit will be completely secure. Customer also understands that access to Mobile Deposit will not be free from delays, malfunctions, or other inconveniences generally associated with the Internet. Customer agrees that we are not responsible for any such unauthorized access, delays or malfunctions, and Bank is not responsible for the acts of third parties or for any delay or interruption in Mobile Deposit beyond our control. Bank bears no liability to Customer or others for such intercepted or misdirected items of information disclosed through such errors or other problems in the course of transmission of images.
Bank may amend the terms of this Agreement at any time, in its sole discretion, by giving notice to Customer. If required by this Agreement or by applicable law, notice will be given for the applicable required number of days in advance of each such amendment. Customer's continued use of Mobile Deposit shall constitute Customer's agreement to such amendments. No amendments requested by Customer shall be effective unless received, and agreed to in writing, by Bank.
21. Confirmation: Account Reconciliation.
Bank will provide notice of receipt of deposits to Customer's Account on the periodic statement for such Account. Customer is responsible for detecting and reporting to Bank any discrepancy between Customer's records and the records Bank provides to Customer. If Customer does not detect and notify Bank of such a discrepancy within 30 days of Customer'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 Customer shall be precluded from asserting such error or discrepancy against Bank.
22. Update Notice.
Customer shall provide written notice to Bank of any changes to the information previously provided by Customer to Bank. Such notice must be received by Bank within 5 business days of the change. Customer shall provide any additional information requested by Bank within 5 days of such request. Bank retains the right to: (i) review Customer's Checks, Files and activities from time to time and (ii) re-price or terminate Mobile Deposit based on changes to information previously provided to Bank by Customer.
23. Bank's Duties.
Bank's duties and responsibilities are limited to those described in this Agreement, the Deposit Agreement and any other agreements governing the Accounts. Bank will use commercially reasonable care in performing its responsibilities under this Agreement.
24. Limitation on Bank's Responsibilities.
Bank 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 is 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 Customer and Bank or Bank 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 Bank's employees; or, without limiting the generality of the foregoing, any other cause or circumstance beyond Bank's control or other conditions or circumstances not wholly controlled by Bank, which would prohibit, retard or otherwise affect Bank's complete or partial performance under this Agreement.
25. Indemnification and Liability; Third Party Claims.
Customer hereby indemnifies Bank and its respective officers, directors, and employees (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: (a) Customer's (i) failure to report required changes, (ii) transmission of incorrect data to Bank or (iii) failure to maintain compliance with the Rules, (b) Bank's action or inaction in accordance with, or in reliance upon, any instructions or information received from any person reasonably believed by Bank to be Customer, (c) Customer's breach of any of Customer's representations, warranties, covenants or other agreements or responsibilities under this Agreement and/or (d) Customer's breach or violation of any Rules; provided, however, Customer is not obligated to indemnify Bank for any damages solely and proximately caused by Bank's gross negligence or willful misconduct.
26. Limit of Liability.
(a) ANY PROVISION IN THIS AGREEMENT, ANY OTHER AGREEMENT OR THE RULES TO THE CONTRARY NOTWITHSTANDING, BANK SHALL ONLY BE LIABLE FOR DAMAGES SOLELY AND PROXIMATELY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND BANK'S LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF (i) CUSTOMER'S ACTUAL DAMAGES OR (ii) THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR MOBILE DEPOSIT. IN NO EVENT SHALL BANK 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 CUSTOMER OF THE MOBILE DEPOSIT SERVICE OR ANY SERVICE OR THE FAILURE OF BANK OR ANY PROVIDER TO PROPERLY PROCESS AND COMPLETE TRANSACTIONS THEREUNDER, EVEN IF BANK OR SUCH PROVIDER(S) HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR INJURIES.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER'S USE OF THE MOBILE DEPOSIT SERVICE SHALL BE AT CUSTOMER'S SOLE RISK, AND THAT THE MOBILE DEPOSIT SERVICE IS PROVIDED BY BANK ON AN "AS IS" BASIS.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BANK MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, IN LAW OR IN FACT, TO CUSTOMER OR TO ANY OTHER PERSON, AS TO THE MOBILE DEPOSIT SERVICE OR ANY ASPECT THEREOF, ANY COMPUTER HARDWARE, SOFTWARE OR EQUIPMENT IN CONNECTION WITH THE MOBILE DEPOSIT SERVICE, INCLUDING, BUT NOT LIMITED TO, CUSTOMER'S COMPUTER SYSTEMS OR RELATED EQUIPMENT, CUSTOMER'S SOFTWARE, OR CUSTOMER'S INTERNET SERVICE PROVIDER OR ITS EQUIPMENT, OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK'S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT CUSTOMER USES, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY, AND BANK HEREBY DISCLAIMS ANY AND ALL OF THE SAME. CUSTOMER AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR MOBILE DEPOSIT TO BE PERFORMED PURSUANT HERETO.
(d) BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN, OR MALFUNCTIONS OF, CUSTOMER'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 BANK TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM CUSTOMER TO BANK, FROM BANK TO CUSTOMER, FROM CUSTOMER TO ANY PROCESSOR, FROM ANY PROCESSOR TO BANK, OR OTHERWISE. BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING CUSTOMER OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF CUSTOMER'S COMPUTER HARDWARE OR SOFTWARE.
27. Financial Information.
Bank may from time to time request information from Customer in order to evaluate a continuation of Mobile Deposit to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement. Customer agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank. Customer authorizes Bank to investigate or reinvestigate at any time any information provided by Customer in connection with this Agreement or Mobile Deposit and to request reports from credit bureaus and reporting agencies for such purpose. Upon request by Bank, Customer hereby authorizes Bank to enter Customer's premises for the purpose of ensuring that Customer is in compliance with this Agreement. If Customer refuses to provide the requested financial information, or if Bank concludes, in its sole discretion, that the credit risk of Customer is unacceptable, or if Customer refuses to give Bank access to Customer's premises, Bank may terminate Mobile Deposit according to the provisions hereof.
28. Confidential Information and Proprietary Right in Data.
All information of a business nature relating to the assets, liabilities or other business affairs disclosed to Bank by Customer in connection with this Agreement is confidential. Except as allowed by applicable law, Bank shall not disclose or permit access to any such information by any person, firm or corporation. Bank shall cause its officers, employees and agents to take such action as shall be reasonably necessary to preserve and protect the confidentiality of such information, by disclosing such information only to persons needing to have access thereto for the performance of the Bank's obligations under this Agreement or to any other party to which Bank may be required by law to report such information. Customer agrees to hold confidential, and to use only in connection with Mobile Deposit, all information furnished to Customer by Bank or by third parties from whom Bank has secured the right to use Mobile Deposit, including, but not limited to, Bank's product and service pricing structure, system design, programming techniques or other unique techniques. In addition, should Customer at any time receive or acquire any information relating to another Customer of Bank, Customer shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for its own benefit or otherwise. Bank's and Customer's obligations and agreements under this paragraph shall not apply to any information supplied that was known to either party prior to the disclosure by the other, is or becomes generally available to the public other than by breach of this Agreement or otherwise becomes lawfully available on a non-confidential basis from a third party who is not under an obligation of confidence to either party. Notwithstanding anything to the contrary contained herein, it is understood and agreed by the parties hereto that the performance of Mobile Deposit is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Board of Directors of the Federal Deposit Insurance Corporation and/or a State regulatory agency, and Customer agrees to the release by Bank of Customer's reports, information, assurances and other data and information as may be required under applicable laws and regulations. Customer agrees that any specifications or programs developed by Bank in connection with this Agreement, or supplied or made available to Customer by Bank, are the exclusive property of Bank, its agents, suppliers or contractors, and further agrees that such material shall not be copied or used in any manner or for any purpose without the express written consent of Bank. This clause shall survive the termination of the Agreement.
29. Attorneys' Fees.
In the event of any 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 Bank may assign this Agreement or any part of it to any of Bank's affiliates or to a successor of Bank by merger or acquisition upon written notice to Customer.
32. 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 Customer or Bank, their respective successors, assigns and affiliates.
33. 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.
34. Entire Agreement.
The terms of the Deposit Agreement, the Internet and Mobile Banking Account Access Agreement, and all other agreements with Bank 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 as to any issue relating to Mobile Deposit. Customer agrees that this Agreement is the entire statement of the terms and conditions which apply to Mobile Deposit.
35. No Waiver.
No delay or failure on the part of Bank in exercising any of Bank's rights under this Agreement shall constitute a waiver of such rights, and no exercise of any remedy hereunder by Bank 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.
Bank may modify, suspend or terminate Customer's privilege of using Mobile Deposit and may withhold approval of any transaction, at any time, without prior notice to Customer. Mobile Deposit and this Agreement automatically terminate upon termination of Customer's Internet and Mobile Banking Account Access Agreement. In the event Bank terminates Mobile Deposit or any function within Mobile Deposit, Bank will try to notify Customer in advance but is not required to do so. Bank will be notified as soon as practicable. Any one person who has access to the accounts accessible with Mobile Deposit may terminate Mobile Deposit or withdraw from the use of any particular function by sending an email to support@HoriconBank.com or by calling customer service at 920-485-3040 or 1-888-343-3040 (for calls outside Dodge County). Upon termination of Mobile Deposit, (i) Customer will promptly pay to Bank all sums due or to become due under this Agreement, and (ii) Customer shall have no further right to make use of Mobile Deposit or any system or software which may have been provided in connection with Mobile Deposit. Bank and Customer agree that Sections 3, 7, 14, 16, 25, 26, 27, 28, 29, 31, 34, 35 and 38 shall survive the termination of Mobile Deposit and this Agreement.
38. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Wisconsin, without reference to its conflict of laws provisions, and applicable federal law.
Any notice required hereunder shall be given by first class U.S. Mail, postage prepaid, by receipted hand delivery, electronically or by any other means agreed upon by both parties and if, to Bank, at the address set forth below and, if to Customer, at the most recent address shown for Customer in Bank's records. If any notice instructions are given, the provisions of such shall govern the method and location for giving notice. Any notice mailed shall be presumed received on the third business day after mailing thereof.
ATTN: EBANKING DEPT
326 E. Lake St.
Horicon, WI 53032