This service is provided to you by River City Bank and powered by a Third Party (the “Licensor”) mobile technology solution. Section A of these End User Terms is a legal agreement between you and River City Bank Section B of these End User Terms is a legal agreement between you and the Licensor.
Thank you for using River City Bank Mobile Banking combined with your handheld’s text messaging capabilities. For help, text “HELP” to 49794. To cancel your plan, text “STOP” to 49794 at any time. In case of questions please contact customer service at [email protected] or call 1-800-564-7144.
1. The services are separate and apart from any other charges that may be assessed by your wireless carrier for text messages sent to or received from River City Bank. You are responsible for any fees or other charges that your wireless carrier may charge for any related data or message services, including without limitation for short message service.
2. The services are provided by River City Bank and not by any other third party. You and River City Bank are solely responsible for the content transmitted through the text messages sent to and from River City Bank. You must provide source indication in any messages you send (e.g., mobile telephone number, “From” field in text message, etc.)
When you enroll for the River City Bank mobile banking services (“Mobile Banking Services”), and each time you use the Mobile Banking Services, you agree to be bound by the terms and conditions of this Mobile Banking Addendum (“Addendum”). This Addendum supplements the Consent to Receive Electronic Communications & Online Banking Terms and Conditions (“Access Agreement”). Except to the extent otherwise defined herein, defined terms in this Addendum will have the meaning provided in the Access Agreement. The term “Online Banking” will refer to the online banking system and services provided by River City Bank pursuant to the terms of the Access Agreement. The term “consumer account holder” will refer to account holders using the Mobile Banking Service to access their accounts that are maintained primarily for personal, family or household purposes. The term “commercial account holder” will refer to an account holder that is not a consumer account holder.
This Addendum is in addition to other agreements between River City Bank and you, including but not limited to (as applicable), your checking, savings, and other deposit and loan account agreements and disclosures, as may be modified from time to time by us. The underlying deposit and loan agreements applicable to the accounts accessed using the Mobile Banking Services shall collectively be referred to as the “Account Agreement.” To the extent there are conflicts between the terms of this Addendum and the Access Agreement, or the Account Agreement, this Addendum will control.
The Access Agreement includes important consumer account holder protection disclosures under the Electronic Fund Transfer Act which continue to apply with respect to the electronic fund transfers facilitated through the Mobile Banking Services.
Mobile Banking Services provide wireless access to your linked accounts to conduct Online Banking transactions, as identified in the Access Agreement. In addition, with the Mobile Banking Services you will be able to deposit checks to your linked checking and savings accounts, subject to system limitations (“Mobile Deposit”).
Some Online Banking Services may not be accessible while using your wireless access device (“Wireless Access Device”), for example, you will not be allowed to initiate an External Account Transfer, or send a Bill Payment to a new payee. Additional Mobile Banking Services may be added to or removed by us from time to time. Some Mobile Banking Services may not be available without special application to and approval by us, may be limited to specific types of accounts, and may require you to agree to additional terms and conditions which may be presented online at the time the feature is activated.
The Mobile Banking Service is compatible with biometric authentication features available to certain Apple® smartphones, such as Touch ID and Facial Recognition. The Biometric authentication features are subject to certain system requirements. If you enable Touch ID or Facial Recognition, for example, you acknowledge that some Online Services may not be accessible until you provide additional Security Code information, as prompted within Online Banking. In addition, you acknowledge that the Biometric authentication features allow anyone with a recognized biometric authentication identifier for your Wireless Access Device to have access to your Mobile Banking Services. You will be deemed to have authorized access to your Mobile Banking Services, including sensitive account information and transfer capabilities, to anyone with a recognized biometric authentication identifier associated with your Wireless Access Device.
Your access to the Mobile Banking Service is subject to our prior and ongoing approval. We may deny your access to all or any part of the Mobile Banking Service, at our sole discretion. To utilize the Mobile Banking Services, you must first enroll in Online Banking. Once you have enrolled in Online Banking, you may activate the Mobile Banking Services using your Wireless Access Device. Designated accounts linked to your Online Banking security codes will be accessible through your Wireless Access Device. Additionally, to access and utilize the Mobile Banking Services you will need a compatible Wireless Access Device. To access Mobile Banking service and functions, your Wireless Access Device must be Internet enabled and connected to the Internet through your mobile communications service provider. In order to properly use the Mobile Banking Services, you should review and follow the instructions provided in our Online Banking system. You agree to accept responsibility for learning how to use the Mobile Banking Services in accordance with the online and mobile application instructions and agree that you will contact us directly if you have any problems with Mobile Banking Services. You also accept responsibility for making sure that you, and anyone acting on your behalf, know how to properly use the Wireless Access Device. If you obtain a different Wireless Access Device, you will be required to download and install software, to that different Wireless Access Device, under the same terms set forth in this Addendum, as amended. You agree to delete all such software from your Wireless Access Device promptly if the licenses or this Addendum terminate for any reason. We reserve the right to change, add to, or terminate services with our third-party software providers, to substitute different software providers, and to enter into or arrange for the provision Mobile Banking Services by other licensors and third-parties.
You agree to exercise due care in preserving the confidentiality of any user identification, password, test key, or other code or authentication method provided by us or otherwise required for use of the Mobile Banking Service and shall further prevent the use of the Mobile Banking Service by unauthorized persons. You assume full responsibility for the consequences of any missing or unauthorized use of or access to the Mobile Banking Service or disclosure of any confidential information or instructions by you, or anyone acting on your behalf.
You are responsible for obtaining and maintaining the compatible Wireless Access Device required to use the Mobile Banking Service. To the extent we, in our sole discretion, provide any hardware in conjunction with the Mobile Banking Service, the hardware will at all times remain the sole property of River City Bank. Upon termination of the Mobile Banking Service, you must promptly return any hardware that we provided to you.
To the extent the Mobile Banking Service involves our having granted you software license (“software”) usage rights, such grant shall be a personal, non-exclusive, non-transferable right to access and use the Mobile Banking Service in connection with your use in accordance with this Addendum. The Mobile Banking Services do not involve the sale of software. Nothing in this Addendum will entitle you to receive technical support, telephone assistance regarding the software, or updates to software. Upon termination, you agree to immediately destroy all copies of any software which had been downloaded to your Wireless Access Device or otherwise in your possession and control as part of your access and use of the Mobile Banking Service. Without limiting the generality of the foregoing, you agree not to: (a) make the Mobile Banking Service available or allow use of the Mobile Banking Service in a computer bureau service business, or on a timesharing basis, or (b) otherwise disclose or allow use of the Mobile Banking Service by or for the benefit of any third party. You acknowledge that your license to use any software that may be required for the Mobile Banking Service is directly from the software provider, pursuant to the license agreement that appears when any such software is electronically accessed by you or otherwise provided to you. By enrolling in portions of the Mobile Banking Service relating to those software systems and programs, and by downloading and installing Mobile Banking software, you will be evidencing your acceptance of the terms and conditions of those licenses. We may also condition your use of the Mobile Banking Service upon you affirming such licenses by the use of “I Accept” or similar dialogue box acknowledgements, or by other affirmative or use-based acknowledgement and agreement systems.
The Mobile Deposit Service enables you to use a software application together with your Wireless Access Device to create electronic images of the front and back of certain Original Checks (defined below) and transmit those images and other information, including, without limitation, information captured from the magnetic ink character recognition (“MICR”) line, to us for review and processing in accordance with this Addendum.
Capitalized terms defined in this Addendum shall have the meaning indicated in this Addendum, including the following:
“Business day” means a calendar day other than a Saturday or a Sunday, or our observed holidays.
“Check” means an Original Check, as defined in Regulation CC.
“Documentation” means all documentation, the user manual, any other manuals, all instructions (including on-line instructions) relating to the Mobile Deposit Service which Bank may provide to you from time-to-time in connection with the Mobile Deposit Services.
“Endpoint” means any Federal Reserve Bank, financial institution, local clearinghouse, courier, or other entity or location for the delivery of cash letters or other presentment of Imaged Items or Substitute Checks.
“Imaged Item” means the digitized image of a Check that is created by you and transmitted to Bank using the Mobile Deposit Service.
“Image Exchange Item” means a digitized image of an Item cleared and settled directly with a Payor Financial Institution without conversion to a Substitute Check.
“Item” means a Check that is payable on demand, drawn on or payable through or at an office of a United States Financial Institution and payable or indorsed to you, and includes Original Checks, Substitute Checks and Image Exchange Items. Such term does not include Non-cash Items or Items payable in a medium other than United States money.
“Mobile Deposit Services” means the Mobile Deposit Services described in this Addendum, to be provided by Bank to you to enable the processing of Items digitally as Image Exchange Items through image exchange networks or through creation of Substitute Checks and presentment to established Endpoints, including collectively the procedures, protocols, and software used by Bank and its licensors and contractors in connection with the electronic processing of Items.
“Non-cash Item” means an Item that would otherwise be an Item, except that: (i) a passbook, certificate or other document is attached; (ii) it is accompanied by special instructions, such as a request for special advice of payment or dishonor; (iii) it consists of more than a single thickness of paper, except an Item that qualifies for handling by automated check processing equipment; or (iv) it has not been preprinted or post-encoded in magnetic ink with the routing number of the Payor Financial Institution.
“Non-qualifying Item” means Non-cash Items, Items payable in a medium other than United States money, currency, warrants, Items payable to third parties, Items payable to joint payees (unless payable to the payees alternatively and deposited into an account in the name of all payees), drafts or remotely created checks as defined by the UCC and Regulation CC, respectively, Items that are stale dated by six months or more or postdated, savings bonds, Items payable to “cash,” Substitute Checks, non-negotiable Items, Items that have been returned unpaid for any reason and any Item that exceeds your transaction limitations as established by us from time to time.
“Original” with respect to a Check means the first paper Item issued with respect to a particular payment transaction.
“Payor Financial Institution” means the United States Financial Institution ordered in an Item to make payment to the payee(s) named on the Item.
“Regulation CC” means 12 C.F.R. Part 229, as it may be amended from time to time.
“Substitute Check” means a paper reproduction of an Item that satisfies the requirements and definition of “substitute check” set forth in Regulation CC.
“UCC” means the Uniform Commercial Code as enacted and amended in California.
“United States Financial Institution” means (i) any person, located in the United States, engaged in the business of banking; (ii) a Federal Reserve Bank; (iii) a Federal Home Loan Bank; and (iv) to the extent it acts as a payor, the U.S. Treasury, the U.S. Postal Mobile Deposit Service, or a State or local government.
In connection with the Mobile Deposit Services, you agree to comply with the following:
1. For holders of commercial accounts, you will be responsible for training your employees in the use of the Mobile Deposit Service;
2. Each processed Imaged Item must be transmitted in compliance with the terms and conditions of this Addendum;
3. The Imaged Item is a digitized image of the front and back of the Original Check and accurately represents all of the information on the front and back of the Original Check as of the time you converted the Original Check to an Imaged Item;
4. The Imaged Item contains all indorsements applied by parties that previously handled the Original Check in any form for forward collection or return;
5. There will be no duplicate presentment of a Check in any form, including as a digitized image, as a paper negotiable instrument or otherwise and you will be liable for and otherwise assume responsibility for any such duplicate presentment of any Check. You agree to indemnify and defend us against any and all claims, causes of action or demands arising out of or directly or indirectly related to the duplicate presentment of any Check;
6. Except as otherwise specifically disclosed in writing to us, you are not now engaged, and will not during the term of this Addendum engage, in any business that would result in you being or becoming a “money service business” as defined in the Federal Bank Secrecy Act and its implementing regulations;
7. You will not engage in any activity directly or indirectly related to the use of the Mobile Deposit Service that is illegal or fraudulent;
8. You will only submit Checks for processing to us that meet the definition of “Item” as provided in this Addendum and will ensure that the Items scanned meet the standards for image quality established by the American National Standard Institute (ANSI) required by Regulation CC, or other standards established or required by us or applicable law, as amended from time to time. You will not process any Non-qualifying Items. Our processing of any Non-qualifying Items shall not constitute a waiver by us or obligate us to process such Non-qualifying Items in the future. You agree that we may discontinue processing of Non-qualifying Items at any time, without cause or prior notice;
9. You will not attempt to scan and transmit to us any third party checks, or any Item which is drawn on a deposit account of yours with us or any other financial institution, or a deposit account of any business entity of which you are a principal, officer or authorized signer;
10. You will not attempt to scan and transmit to us any previously truncated and reconverted Substitute Check. Any previously truncated and reconverted Substituted Check must be physically deposited with us. Notwithstanding the foregoing, we may redeposit any returned Substitute Check or Image Exchange Item consistent with the terms of the Account Agreement;
11. You will (i) ensure that Items are restrictively indorsed or otherwise processed to permit only financial institutions to acquire rights of a holder in due course in the collection process of Items, (ii) handle, process, maintain and destroy Original Checks as set forth in this Addendum and in the Documentation, and (iii) ensure that no financial institution (depositary, collecting or payor), drawee, drawer or indorser receives presentment or return of, or otherwise is charged for an Item more than once in any form;
12. You will balance the dollar amount of each deposit to the sum of Checks prior to transmitting to us;
13. You will: (i) maintain a daily control record of all Checks, including transaction counts and dollar amounts; and (ii) balance transactions transmitted from the previous day and immediately notify us of any error or discrepancy discovered;
14. You will not use the Mobile Deposit Service to deposit any Check or Checks that exceed the transaction limits established by us from time to time. You acknowledge that, at this time, the maximum aggregate amount you may deposit using the Mobile Deposit Service each day is $10,000, and each 5 day period is $20,000. We also we limit you to 10 Check deposits per day using the Mobile Deposit Service;
15. You shall be responsible for verifying our receipt of your transmission(s) by verifying that deposits have been posted to the appropriate accounts, in addition to cooperating with us in any investigation and resolving any unsuccessful or lost transmissions;
16. You shall be responsible for installing and implementing any changes and upgrades to the Mobile Deposit Service as required by us within 5 days to ensure compliance with regulatory changes or developments, or to protect the integrity and security of the Mobile Deposit Services. You will ensure that your Wireless Access Device is clean and operating properly, and inspect and verify the quality of images and ensure that the digitized images of Items are legible for all posting and clearing purposes;
17. You agree to indicate that the Item has been deposited via the Mobile Deposit Service by writing the word “Processed,” the phrase, “mobile deposit XX/XX/XX (date),” or similar on the front of the Item, once the Check has been scanned and transmitted. If not directed otherwise by us, you will store Original Checks in a safe and secure environment for a minimum of 14 days and a maximum of 30 days after such Item has been digitized and processed. You shall take appropriate security measures to ensure that: (a) only authorized personnel shall have access to Original Checks, (b) that the information contained on such Original Checks or on any corresponding Imaged Items are not disclosed to third parties; (c) such Checks will not be duplicated or scanned more than one time; and (d) such Checks will not be re-deposited or renegotiated in any form. You will promptly (but in any event within 3 business days) provide any retained Original Check (or, if the Original Check is no longer in existence, a sufficient copy of the front and back of the Original Check) to us as requested to aid in the clearing and collection process to resolve claims by third parties with respect to any Item or as we otherwise deem necessary. You will use a commercially reasonable method which is consistent with any requirements of Regulation CC and the Bank to securely and permanently destroy Original Checks after your retention period has expired;
18. You understand and agree that an Item that is not paid by a Payor Financial Institution, or is otherwise returned for any reason, will in our discretion be: (i) re-presented to the Payor Financial Institution; or (ii) returned to you and your account charged for the amount of the Item plus any associated fees as disclosed in our applicable fee schedule, which may be changed from time to time in our discretion. You agree that Items may be returned as Image Exchange Items, rather than Substitute Checks. Our right to charge your account will apply without regard to whether the Item is timely returned to us or whether there is any other claim or defense that the Item has been improperly returned to us; and
19. You agree to make all encoding, transfer, presentment and other warranties made under applicable law as we are deemed to make under applicable law, including without limitation those under the UCC, Regulation CC and the rules of any image exchange network.
If we receive a scanned Original Check on or before 3:00 p.m. Pacific Time on a business day we are open, we will consider that day to be the day of deposit. If we receive a scanned Item after 3:00 p.m. Pacific Time or on non-business day, we may consider that the deposit was made on the next business day. At our option, however, we may treat the Original Check as received the same day as the day of receipt. Your account will be provisionally credited upon our acceptance of Imaged Items for deposit which are received by us from you through the Mobile Deposit Service.
For all Imaged Items processed pursuant to this Addendum, either: (i) digitized images will be converted to Substitute Checks and presented for payment to established Endpoints, or (ii) Imaged Exchange Items will be presented for payment through image exchange networks. We may in our sole discretion determine the manner of processing.
We will process any returned Items in accordance with applicable law and the Account Agreement. Availability of credit from Items processed under this Addendum will be subject to our then current availability schedule, which may be amended by us from time to time. We may at our sole option, with or without cause, at any time and from time to time, refuse to process any Imaged Items. We may from time to time establish and amend exposure limitations and assign them to you.
Notwithstanding any provisional credit that may be applied to an account in connection with your transmitted Imaged Items, Imaged Items processed for deposit through the Mobile Deposit Service will be deemed to have been received by us for deposit at the time the Imaged Items are actually received and accepted at the location where we or our designated agent posts the credit to the account. A deposit of Imaged Items will be deemed to have been received and accepted by us for deposit when all of the following have occurred: (i) we have preliminarily verified that the image quality of the Imaged Item is acceptable to us in our discretion, all Item information is complete and the deposit totals are balanced to the Item information provided for the deposit; and (ii) we have successfully performed all further validation routines with respect to the deposit. Notwithstanding the foregoing, Imaged Items received by us for deposit may be rejected by us in our sole discretion.
You agree to view the images of each scanned Item that is sent to us. If Item information received by is not complete or cannot be processed by us for any reason, we may reject the Imaged Item, notwithstanding any transmission confirmation and charge the amount back against any provisional credit to your account. You will be responsible for verifying our receipt of your transmissions by verifying that deposits have been posted to your account.
If an Imaged Item is not accepted for deposit, you may then submit the Original Check to us for processing or contact the maker to reissue the Check. If you submit the Original Check for processing, we reserve the right to refuse to process the Check for deposit and presentment to the Payor Financial Institution and may instead require you to have the maker reissue the Check.
You shall comply with all laws, rules, and regulations applicable to you, to your business and operations, and to the Mobile Deposit Services, including, without limitation, Regulation CC, the Uniform Commercial Code and any rules established by an image exchange network through which Image Exchange Items are processed pursuant to this Addendum. You shall have the responsibility to fulfill any compliance requirement or obligation that Bank and/or you may have with respect to the Mobile Deposit Service under all applicable U.S. federal and state laws, regulations, rulings, including sanction laws administered by the Office of Foreign Assets Control, and other requirements relating to anti-money laundering, including but not limited to, the federal Bank Secrecy Act, the USA PATRIOT Act and any regulations of the U.S. Treasury Department to implement such Acts, as amended from time to time.
You acknowledge that we may from time to time establish minimum amounts to be funded by you as reserve amounts. We will provide notice to you of any reserve requirement, and you shall immediately fund the reserve amount with good funds. We may withhold and use any amounts due to you to maintain any reserve amounts at levels specified by us. To secure all of your obligations us arising from this Addendum, you grant to us a security interest in all of your accounts with us, all funds in those accounts, any reserve accounts or funds therein, all Items, whether now or hereafter established by or for your benefit, and all proceeds of the foregoing. Our security interest will survive after termination of this Addendum. This security interest is supplemental to and not in lieu of the security interest granted by you to us under any other agreement. In addition to any other rights we may have with regards the accounts of yours, we may hold and use funds in any account following termination of this Addendum for such time as we reasonably determine that any Item processed by us prior to termination may be returned, charged back or otherwise a cause for any loss, liability, cost, exposure or other action for which we may be responsible. Without limitation, you recognize that under the UCC, Regulation CC, the Electronic Check Clearing House OrganizationTM (“ECCHO”) Rules (as applicable), and the rules of any image exchange network, our representations and warranties with regards to Image Exchange Items and Substitute Checks may expose us to claims for several years following processing of the Image Exchange Item or Substitute Check.
We may cause the Mobile Deposit Service to be temporarily unavailable to you, either with or without prior notice, for site maintenance, security or other reasons, and you acknowledge that factors beyond our reasonable control, such as telecommunications failure or equipment failure, may also cause the Mobile Deposit Service to be unavailable to you. You may deposit Original Checks and other items to any deposit account with us in person or in any other manner permitted by agreement between you and us, and you will be responsible for maintaining procedures and facilities to enable you to do so if the Mobile Deposit Service is unavailable to you.
The availability, timeliness and proper functioning of the Mobile Banking Services depends on many factors, including your Wireless Access Device location, wireless network availability and signal strength, and the proper functioning and configuration of hardware, software, and your Wireless Access Device. Neither we nor any of our service providers warrants that the Mobile Banking Service will operate without interruption, and neither we nor our service providers shall be liable for any loss or damage caused by any unavailability of the Mobile Banking Services, including service interruptions, delays, or loss of personalized settings. Neither we nor any of our service providers assumes responsibility for the operation, security, functionality or availability of any Wireless Access Device or mobile network which you utilize to access the Mobile Banking Services.
THE MOBILE BANKING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY OTHER WARRANTY AS TO PERFORMANCE, ACCURACY OR COMPLETENESS.
You agree to exercise caution when utilizing the Mobile Banking Services on your Wireless Access Device and use good judgment and discretion when obtaining or transmitting information.
In addition to any indemnification obligations you have under the Access Agreement, and except to the extent expressly prohibited by applicable law, you agree that you will indemnify and hold us harmless, including our licensors and providers of the Mobile Banking Services, and our respective directors, officers, shareholders, employees and agents, against any and all third party suits, proceedings, claims, demands, causes of action, damages, expenses (including reasonable attorneys’ fees and other legal expenses), liabilities and other losses that result from or arise out of: (i) your wrongful acts or omissions, or any person acting on your behalf, in connection with your use of the Mobile Banking Service, including without limitation (a) the breach by you of any provision, representation or warranty of this Addendum, (b) your negligence or willful misconduct (whether by act or omission) or any third party on acting on your behalf, (c) any misuse of the Mobile Banking Service by you, or any third party within your control or on behalf of you, (d) your failure to comply with applicable state and federal laws and regulations, or (e) any fine, penalty or sanction imposed on us by, any clearing house, or any governmental entity, arising out of or connected with any Imaged Item processed by us for you or at your instruction; (ii) any act or omission of ours that is in accordance with this Addendum or instructions from you; (iii) actions by third parties, such as the introduction of a virus that delay, alter or corrupt the transmission of an Imaged Item to us; (iv) any loss or corruption of data in transit from you to us; (v) any claim by any recipient of a Substitute Check corresponding to a Check processed by you under this Addendum, that such recipient incurred loss due to the receipt of the Substitute Check instead of the Original Check; or (vi) any claims, loss or damage resulting from your breach of, or failure to perform in accordance with, the terms of this Addendum.
This Section is not intended to replace or supersede, and is hereby added to, any other exceptions to our liability that may be stated elsewhere in the Access Agreement and the Account Agreement. Except to the extent prohibited by applicable law or regulation, we will not be liable to you for any of the following: (i) any damages, costs or other consequences caused by or related to our actions that are based on information or instructions that you provide to us; (ii) any unauthorized actions initiated or caused by you or your agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom we have delegated the performance of specific obligations provided in this Addendum; (iv) any refusal of a Payor Financial Institution to pay an Image Exchange Item or Substitute Check for any reason (other than our breach of contract, gross negligence or willful misconduct), including without limitation, that the Original Check, Image Exchange Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) you or any other party’s lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) if you do not follow or comply with the representations or warranties set forth in this Addendum.
To the fullest extent allowed by law, and subject to our limitations on liability provided otherwise in this Addendum, we will only be liable for damages that are solely and proximately caused by our gross negligence or willful misconduct. Our liability for errors or omissions with respect to the data transmitted or printed by us in connection with this Addendum will be limited to correcting the errors or omissions. With respect to the Mobile Deposit Service, correction will be limited to reprocessing, reprinting and/or representing the Image Exchange Items or Substitute Checks to the Payor Financial Institution.
Notwithstanding anything to the contrary in this Addendum, and except to the extent expressly prohibited by applicable law or regulation, our aggregate liability for claims related to this Addendum, whether for breach, negligence, infringement, in tort or otherwise, shall be limited to $25,000.
Except as otherwise specifically provided in this Addendum, in no event will either party be liable to the other for any consequential, indirect, incidental, special, exemplary or punitive damages, including without limitation any loss of use or loss of business, revenue, profits, opportunity or good will, under any theory of tort, contract, indemnity, warranty, strict liability or negligence, even if such party has been advised or should have known of the possibility of such damages.
Without limiting the foregoing, we 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 our control. In the event of any of the foregoing failure or delays, you acknowledge that you may instead deposit directly with us any Original Items for processing and presentment, provided such Original Items have not been previously imaged and processed in connection with the Mobile Deposit Services. In addition, we shall be excused from failing to transmit or delay in transmitting an Item for presentment if such transmittal would result in our having exceeded any limitation upon its intraday net funds position established pursuant to Federal Reserve guidelines or if our otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.
You and we acknowledge and agree that the limitations of liability in this Section are a bargained for allocation of risk and liability, and agree to respect such allocation of risk and liability. Each party agrees and acknowledges that the other party would not enter into this Addendum without the limitations of liability set forth in this Section.
You agree that, when you use Mobile Banking Services, you remain subject to the terms and condition of your existing agreements with any unaffiliated service providers, including, but not limited to your mobile service provider. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of the Mobile Banking Services (such as data usage or text messaging charges imposed on you by your mobile service provider), and you agree to be solely responsible for all such fees, limitations and restrictions. You also agree that only your mobile service provider is responsible for its products and services. Accordingly, you agree to resolve any problems pertaining to your Wireless Access Device or mobile services with your provider directly.
You acknowledge and agree that the software and content used by us in the operation of our website and provision of the Mobile Banking Services, and the copyright patent, trademark, trade secret and all other rights in and to the technology, software, content, designs, graphics, and trademarks included by us our website and as part of the Mobile Banking Services and our name and product names and the website’s URL (collectively, by the “Intellectual Property”), are owned by us and our licensors. As such, you will not gain any ownership or other right, title or interest in or to such Intellectual Property by reason of this Addendum or otherwise. You may not use, reproduce, duplicate, copy or distribute the content found at our website or provided by the Mobile Banking Services.
You may not distribute, reuse, reproduce, duplicate, copy, publish, sell, or otherwise transfer (i) any portion or element of the Mobile Banking Services or the Intellectual Property or (ii) access to our Mobile Banking Services or Intellectual Property. Further, you may not (a) create derivative works of any portion or element of the Mobile Banking Services or Intellectual Property; (b) reverse engineer, modify, decompile or disassemble any of the Intellectual Property; (c) deactivate or disable any password protection or other protection, security or reliability technology we incorporate in the Mobile Banking Services; (d) modify or erase any copyright or trademark notice we place in connection with the Mobile Banking Services; (e) engage in the practice known as “screen-scraping” or otherwise attempt to, or actually, obtain copies of content provided through the Mobile Banking Services (sometimes known as “scrapers,” “spiders,” “robots” or “bots”) to systematically access and download data; (f) access the Mobile Banking Services by any means other than via your Wireless Access Device; (g) frame any content provided through the Mobile Banking Services or any Intellectual Property; or (h) use any circumvention tools, meta tags or any other “hidden text” utilizing our name, trademark, URL, product name or other Intellectual Property. You agree to comply with the terms of any license agreement made available to you through the Mobile Banking Services.
You expressly acknowledge that any wireless access to your accounts may not be secure and, as such, you assume the risk associated with unauthorized access to the Mobile Banking Services and any information contained therein, resulting from such wireless connectivity. You assume all risk that any information you download or otherwise stored on your Wireless Access Device may be accessed by unauthorized third parties. Without limiting the foregoing, you acknowledge that your Wireless Access Device may become subject to unauthorized tracking, “hacking” or other manipulation by spyware, viruses or other malicious code (“malware”). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk.
We are not responsible for the security and confidentiality of information when you: (i) use wireless connections to download your account information, in which case you acknowledge such connection may permit other persons to access the information being downloaded, or (ii) allow other persons access to your Wireless Access Device. You agree that any account information that you download is done at your own risk, and you are solely responsible for any damage that might occur to the electronic device to which you download any information, or any loss or corruption of data that might occur as a result of the downloading or its storage on an electronic device.
YOU AGREE TO TERMINATE THE MOBILE BANKING SERVICE, OR DISABLE YOUR REGISTERED WIRELESS ACCESS DEVICE FROM THE MOBILE BANKING SERVICE IMMEDIATELY IN THE EVENT YOUR REGISTERED DEVICE BECOMES LOST, STOLEN OR IS NO LONGER IN USE BY YOU.
You agree to pay for the Mobile Banking Services in accordance with our fee schedule, as amended by us from time to time. You authorize us to automatically charge any one of your accounts for all such fees incurred in connection with the Mobile Banking Services.
You represent and agree to the following by enrolling for Mobile Banking Services, or by using the Mobile Banking Services:
A. Account Ownership/Accurate Information. You represent that you are the legal owner or an authorized user of the accounts and other financial information which may be accessed via the Mobile Banking Services. You represent and agree that all information you provide to us in connection with the Mobile Banking Services is accurate, current and complete, and that you have the right to provide such information to us for the purpose of using the Mobile Banking Services. You agree not to misrepresent your identity or your account information. You agree to keep your account information up to date and accurate. You represent that you are the only authorized user of the Wireless Access Device that you will be using to access the Mobile Banking Services.
B. User Security. You agree not to give or make available the Mobile Banking Services log-in, password or other security codes (collectively “Security Codes”) to any unauthorized individuals. You are responsible for all transfers or other transactions you authorize using the Mobile Banking Services. If you permit other persons to use your Security Codes, you are responsible for any transactions they conduct.
C. Contact in Event of Unauthorized Transfer. If you believe that any part of your Security Code, Wireless Access Device or other means to access your account has been lost or stolen or that someone may attempt to use the Mobile Banking Services without your consent, or has transferred money without your permission, notify us either through the Online Banking system, by calling 1-800-564-7144 or 1-916-567-2899, or writing us at PO Box 15247, Sacramento, CA 95851. Refer to your Access Agreement for additional details regarding error resolution procedures.
D. User Conduct. You agree not to use the Mobile Banking Services or the content or information delivered through the Mobile Banking Services in any way that would: (i) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Mobile Banking Services to impersonate another person or entity; (iii) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising or illegal Internet gambling); (iv) be false, misleading or inaccurate; (v) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (vi) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (vii) potentially be perceived as illegal, offensive or objectionable; (viii) interfere with or disrupt computer networks connected to the Mobile Banking Services; or (ix) use the Mobile Banking Services in such a manner as to gain unauthorized entry or access to the computer systems of others.
E. No Commercial Use or Re-Sale. You agree that the Mobile Banking Services are only for your use to access your account information and otherwise facilitate services offered through the Mobile Banking Services. You agree not to make any commercial reuse of Mobile Banking Services, including to resell, lease, rent or distribute access to the Mobile Banking Services.
You may cancel your participation in the Mobile Banking Services at any time either through the Online Banking system, or by calling 1-800-564-7144 or 1-916-567-2899. Unless otherwise restricted by applicable law, we reserve the right to: (i) change or cancel the Mobile Banking Services at any time without notice; and (ii) suspend your access to the Mobile Banking Services at any time without notice and for any reason, including, but not limited to your non-use of the Mobile Banking Services. Advance notice of termination or modification will be provided if required by law. To the extent permitted by law, such notice may be provided to you electronically. If you initiate any transaction, including accessing your account information, through the Mobile Banking Services after the effective date of a modification, you will be deemed to have effectively consented to the modification.
We reserve the right to refuse to make any transaction you request through the Mobile Banking Services.
You agree that our service providers (including any provider of software) may rely upon your agreements and representations in this Addendum, and such service providers are intended third party beneficiaries to this Addendum, with the power to enforce these provisions against you, as applicable.
While using the Mobile Banking Services, you may be able to access uploaded content provided or operated by third parties. Unless we tell you otherwise in writing, we do not operate or control any such content or any of the information, products or services on such linked websites. You acknowledge and agree that: (i) you access such content and linked sites at your own risk; (ii) we make no representation or warranty, and assume no responsibility for, content on our website and any linked site or the actions or omissions of its/their owners, operators or providers; (iii) we make no indorsement of, and assume no responsibility for, content uploaded to our website or goods or services offered on or advertising on or by any other website; (iv) by using other websites and services, you may be exposed to content that is offensive, indecent or objectionable; and (v) although we may have a contractual or other relationship with the operators of a linked website or the providers of content, we will not be responsible for the content, accuracy, integrity, availability, timeliness or operation of their website or content. You agree to hold us harmless in connection with all of the foregoing.
You agree that we may periodically audit and verify your compliance with the Addendum. You agree to cooperate and provide information or documentation, at your expense, as may be reasonably requested by us in the course of such audit.
To be Agreed to by End User Prior to Use of the Downloadable App
1. Ownership. You acknowledge and agree that a third party provider or licensor to your financial services provider (“Licensor”) is the owner of all right, title and interest in and to the downloaded software to be used for access to mobile banking services from your financial services provider and the computer programs contained therein in machine readable object code form as well as any accompanying user documentation along with all subsequent copies, updates or versions thereof which are made available to you (if any), regardless of the media or form in which they may exist (collectively the “Software”).
2. License. Subject to the terms and conditions of this Agreement, you are hereby granted a limited, nonexclusive license to use the Software in accordance with the terms of this Agreement. All rights not expressly granted to you by this Agreement are hereby reserved by the owner of the Software. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This Agreement may be terminated at any time, for any reason or no reason. Upon termination, you agree to immediately destroy all copies of the Software in your possession or control.
3. Restrictions. You shall not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
4. Disclaimer Warranty. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE SOFTWARE AND ANY OTHER MATERIAL OR SERVICES DOWNLOADED OR MADE AVAILABLE TO YOU THROUGH THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE.
5. Limitations of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR , THE PROVIDER OF ANY FINANCIAL SERVICES AVAILABLE THROUGH OR RELATED TO THE SOFTWARE, ANY OF THEIR CONTRACTORS OR PROVIDERS OR ANY OF EACH OF THEIR AFFILIATES BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, LIABILITY OF LICENSOR OR ANY OF THE OTHER PERSONS OR ENTITIES DESCRIBED IN THE PRECEDING SENTENCE ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF $10.00 OR THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE.
6. U.S. Government Restricted Rights. The Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this Agreement.
7. Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the state of Florida excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of Florida and the parties expressly consent to jurisdiction and venue thereof and therein. The parties confirm that this Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.
8. Content and Services. Neither Licensor nor the provider of the wireless network is the provider of any financial services available through or related to the Software, and neither Licensor nor the provider of the wireless network or any contractor of the provider of the financial services available through or related to the Software, is responsible for any of the materials, information, products or services made available to you via the Software.