Mobile Check Deposit Disclosure and Agreement
Effective: February 17, 2015
In this Disclosure and Agreement, the words “I,” “me,” “my,” “us” and “our” mean the consumer or business that applied for and/or uses any of the Mobile Check Deposit Remote Deposit Capture Services (the “Services”) described in this Disclosure and Agreement. The words “you,” “your,” and “yours” mean United Texas Credit Union (“United Texas”). My Application for use of the Mobile Check Deposit Remote Deposit Capture Services, your notification of approval of my application, and my United Texas Membership and Account Agreement are hereby incorporated into and made a part of this Disclosure and Agreement. In the event of a discrepancy between this Disclosure and Agreement and my Application, your approval, or the Account Agreement, this Disclosure and Agreement will control.
Use of the Services. Following receipt of your notification approving my use of the Services, I am authorized by you to remotely deposit paper checks I receive to my account with you (the “Account”) by electronically transmitting a digital image of the paper checks to you for deposit. My use of the Services constitutes my acceptance of the terms and conditions of this Disclosure and Agreement. In order to use the Services, I must obtain and maintain, at my own expense, compatible hardware and software as specified by United Texas from time to time. United Texas is not responsible for any third party software I may need to use the Services. Any such software is accepted by me as is and is subject to the terms and conditions of the software agreement I enter into directly with the third party software provider at the time of download and installation. I agree to comply with the hardware and software requirements set forth in our Frequently Asked Questions.
Upon receipt of the digital image, you will review the image for acceptability. I understand and agree that receipt of an image does not occur until after you notify me of receipt of the image via the Deposit History feature. I understand that, in the event I receive a notification from you confirming receipt of an image, such notification does not mean that the image contains no errors or that you are responsible for any information I transmit to you. You are not responsible for any image that you do not receive. I agree that the image of the check transmitted to United Texas shall be deemed an “item” within the meaning of Article 4 of the Uniform Commercial Code as adopted in Texas. Following receipt of the image, the manner in which the items are cleared, presented for payment, and collected shall be in United Texas’s sole discretion subject to the Disclosures governing my account (i.e., you may process the image by preparing a “substitute check” or clearing the item as an image). Notwithstanding anything to the contrary, you reserve the right, within your sole and absolute discretion, to accept or reject any item for remote deposit into my Account. Your acceptance of my check(s) does not guarantee the check(s) will clear the payee’s account. I understand that any amount credited to my Account for items deposited using the Services is a provisional credit and I agree to indemnify you against any loss you suffer because of your acceptance of the remotely deposited check(s).
In addition I agree that I will not (i) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or Service, (ii) copy or reproduce all or any part of the technology or Service; or (iii) interfere, or attempt to interfere, with the technology or Service.
Guarantee Specific to Deposits Received for Credit to a Business Account:
My use of the Services for the purpose of depositing to a business account constitutes my understanding and agreement that I may be personally liable for any expenses United Texas incurs in attempting to obtain final payment for the item in question, outside of the routine costs associated with item processing, in the event of a default by the Business. This includes but is not limited to recovery of the amount credited in the event of non-payment, collection costs and attorney’s fees as applicable, as well as any and all costs associated with United Texas enforcing this Guarantee. This Guarantee shall benefit United Texas and its successors and assigns.
Guarantee Specific to Deposits Received for Credit to a Personal Account:
My use of the Services for the purpose of depositing to my personal account(s) constitutes my understanding and agreement that I am personally liable for any expenses United Texas incurs in attempting to obtain final payment for the item in question, outside of the routine costs associated with item processing, in the event of an unpaid item. This includes but is not limited to recovery of the amount credited in the event of non-payment, collection costs and attorney’s fees as applicable, as well as any and all costs associated with United Texas enforcing this Guarantee. This Guarantee shall benefit United Texas and its successors and assigns.
Compliance with Law. I agree to use the products and Service for lawful purposes and in compliance with all applicable laws, rules and regulations, as well as all laws pertaining to the conduct of my business if applicable. I warrant that I will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations. I promise to indemnify and reimburse and hold you harmless from any damages, liabilities, costs, expenses (including attorneys’ fees) or other harm arising out of any violation thereof. This indemnity will survive termination of my Account and this Agreement.
Check Requirements. Any image of a check that I transmit to you must accurately and legibly provide all the information on the front and back of the check at the time presented to me by the drawer. Prior to capturing the original check, I will endorse the back of the original check. My endorsement will include my signature and the following information:
– My United Texas Account Number
– The words “via Mobile Check Deposit”
The image of the check transmitted to you must accurately and legibly provide, among other things, the following information: (1) the information identifying the drawer and the paying bank that is preprinted on the check, including complete and accurate MICR information and the signature(s); and (2) 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. The image quality for the check will meet the standards for image quality established by the American National Standards Institute (“ANSI”), the Board of Governors of the Federal Reserve, and any other regulatory agency, clearing house or association.
Rejection of Deposit. You are not liable for any service or late charges levied against me due to your rejection of any item. In all cases, I am responsible for any loss or overdraft plus any applicable fees to your Account due to an item being returned.
Items Returned Unpaid. A written notice will be sent to me of transactions you are unable to process because of returned items. With respect to any item that I transmit to you for remote deposit that you credit to my Account, in the event such item is dishonored, I authorize you to debit the amount of such item from the Account. Unless otherwise instructed by United Texas, I agree not to deposit the original check if an image or other debit as previously described is charged back to me.
E-mail Address. I agree to notify you immediately if I change my e-mail address, as this is the e-mail address where you will send me notification of receipt or rejection of remote deposit items or any changes to the Services.
Unavailability of Services. I understand and agree that the Services may at times be temporarily unavailable due to the Financial Institution’s system maintenance or technical difficulties including those of the Internet service provider, cellular service provider and Internet software. You cannot assume responsibility for any technical or other difficulties or any resulting damages that may incur. In the event that the Services are unavailable, I acknowledge that I can deposit an original check at your branches or through your ATMs or by mailing the original check to United Texas at 5500 UTSA Blvd., San Antonio, TX 78249. The deposit of original checks at an office of United Texas shall be governed by the terms and conditions of my United Texas Membership and Account Agreement and not by the terms of this Agreement. It is my sole responsibility to verify that items deposited using the Services have been received and accepted for deposit by you. However, you will e-mail notification of items that are rejected by the next business day following rejection.
Business Day and Availability Disclosure. To be eligible for processing on the day transmitted, deposits must be received by United Texas no later than 4:00 P.M. Central Standard Time on a business day we are open (“the Cut-Off Time”). A deposit is considered received by you when a complete copy of such deposit has been written on a United Texas electronic storage device in conformity with your technical and operational requirements. To meet the Cut-Off Time, the entire deposit file be received by you prior to the Cut-Off Time, and the deposit must successfully pass the edits for conformity with the technical requirements. For purposes of determining when a deposit has been delivered and received, United Texas’s records shall be determinative. A deposit which is not balanced in accordance with the Procedures or 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 deposit is actually received by you (“business day” means any day which United Texas is open to conduct substantially all of its services, but shall not include Saturday, Sunday, or any Federal or Credit Union holiday).
Funds Availability. With regard to the availability of deposits made using the Services, such funds will be available as set forth in the United Texas Funds Availability Policy, which is part of the United Texas Membership and Account Agreement.
Account Holder’s Warranties. I make the following warranties and representations with respect to each image of an original check I transmit to you utilizing the Services:
1. Each image of a check transmitted to you is a true and accurate rendition of the front and back of the original check, without any alteration or additions except as specified in the agreement, and the drawer of the check has no defense against payment of the check.
2. The amount, the payee, signature(s), and endorsement(s) on the original check are legible, genuine, and accurate.
3. I will not deposit or otherwise endorse to a third party the original item (the original check) and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the item (either the original item, or a paper or electronic representation of the original item) such that the person will be asked to make payment based on an item it has already paid.
4. Other than the digital image of an original check that I remotely deposit through your Services, there are no other duplicate images of the original check.
5. I have instituted procedures to ensure that each original check was authorized by the drawer in the amount stated on the original check and to the payee stated on the original check.
6. I am authorized to enforce each item transmitted or am authorized to obtain payment of each item on behalf of a person entitled to enforce such transmitted item.
7. The information I provided in my Application remains true and correct and, in the event any such information changes, I will immediately notify you of the change.
8. I have not knowingly failed to communicate any material information to you.
9. I have possession of each original check deposited using the Services and no party will submit the original check for payment.
10. Files and images transmitted to you will contain no viruses or any other disabling features that may have an adverse impact on your network, data, or related systems.
Storage of Original Checks. I must securely store each check until you notify me via the deposit history on Mobile Check Deposit that my deposit has been accepted. If I am using the services to deposit items into an account in the name of a Business to which I am a party I understand this means the original item(s) must be accessible only [under dual control] by my authorized personnel. Persons who have access to the items must be fully bondable and have passed thorough screening. Once I verify you have successfully received my deposit, I will prominently mark the item as “VOID” and I will destroy the item by shredding or another commercially acceptable means of data destruction and shall indemnify United Texas for any and all losses or other damages you may suffer as a result of any deposit of a check more than once. I understand and agree that I am responsible for any loss caused by my failure to securely control the original checks and expressly authorize you to debit my account in the amount of any check, which is deposited more than once, plus any charge-back fee.
Securing Images on Mobile Devices. When using Mobile Check Deposit, I understand that check images captured using my mobile device are stored on the device only until the associated deposit has been successfully submitted. I agree to promptly complete each deposit. In the event that I am unable to promptly complete my deposit, I agree to ensure that my mobile device remains securely in my possession until the deposit has been completed or to delete the associated images from the application.
Account Holder’s Indemnification Obligation. I understand and agree that I am required to indemnify you and hold you harmless against any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and expenses arising from my use of the Services and/or breach of this Disclosure and Agreement. I understand and agree that this paragraph shall survive the termination of this Agreement.
In Case of Errors. In the event that I believe there has been an error with respect to any original check or image thereof transmitted to you for deposit or a breach of this Agreement, I will immediately contact you regarding such error or breach as set forth below.
Telephone you at: 1-800-531-8456
or e-mail you at: email@example.com.
Limitation of Liability. I agree that you will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including, but not limited to damages for loss of profits, goodwill, use, data or other losses resulting from the use or the inability to use the services incurred by me or any third party arising from or related to the use of, inability to use, or the termination of the use of these services, regardless of the form of action or claim (whether contract, tort, strict liability or otherwise), even if United Texas has been informed of the possibility thereof.
Charges for Use of the Services. All charges associated with the Services are disclosed in your United Texas Fee Schedule.
Warranties. I UNDERSTAND THAT THE FINANCIAL INSTITUTION DOES NOT MAKE ANY WARRANTIES ON EQUIPMENT, HARDWARE, SOFTWARE OR INTERNET PROVIDER SERVICE, OR ANY PART OF THEM, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. UNITED TEXAS IS NOT RESPONSIBLE FOR ANY LOSS, INJURY OR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, CAUSED BY THE INTERNET PROVIDER, ANY RELATED SOFTWARE, OR UNITED TEXAS’ USE OF ANY OF THEM OR ARISING IN ANY WAY FROM THE INSTALLATION, USE, OR MAINTENANCE OF MY PERSONAL COMPUTER HARDWARE, SOFTWARE, OR OTHER EQUIPMENT. YOU MAKE NO WARRANTY THAT THE SERVICES (i) WILL MEET MY REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SERVICES OR TECHNOLOGY WILL BE CORRECTED.
Change in Terms. You may change the terms and charges for the Services indicated in this Disclosure and Agreement by notifying me of such change in writing or via electronic mail to my e-mail address I provided for these Services or on our website(s) by providing a link to the revised Agreement and may amend, modify, add to, or delete from this Disclosure and Agreement from time to time. My use of the Services after notification of any change by you constitutes my acceptance of the change.
Termination of the Services. I may, by written request, terminate the Services provided for in this Disclosure and Agreement. Some of the Services have qualification requirements, and you reserve the right to change the qualifications at any time without prior notice. You reserve the right to change, suspend or discontinue the Services, in whole or in part, or my use of the Services, in whole or in part, immediately and at any time without prior notice to me. You may immediately terminate my use of the Services without notice if, in United Texas’ sole discretion, United Texas determines that I have abused Mobile Check Deposit or you believe that you will suffer a loss or other damage if my use of the Services is not terminated. In the event of termination of the Services, I will remain liable for all transactions performed on my Account.
Relationship to Other Disclosures. The information in these Disclosures applies only to the Services described herein. Provisions in other disclosure documents, as may be revised from time to time, remain effective for all other aspects of the Account.
Governing Law. I understand and agree that this Disclosure and Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the internal laws of the State of Texas, notwithstanding any conflict-of-laws doctrines of such state or other jurisdiction to the contrary. I also agree to submit to the personal jurisdiction of the courts of Bexar County, State of Texas. A determination that any provision of this Agreement is unenforceable or invalid shall not render any other provision of this Agreement unenforceable or invalid.
Periodic Statement. Any remote deposits made through the Services will be reflected on my monthly account statement. I understand and agree that I am required to notify you of any alleged error relating to images transmitted using the Services immediately, and in no event later than 60 days after the monthly periodic statement that includes any transaction I allege is erroneous has been emailed to me or otherwise sent to me by United Texas. Unless I notify United Texas within 60 days, such statement regarding all deposits made through the Services shall be deemed correct, and I am prohibited from bringing a claim against United Texas for such alleged error.
Limitations on Frequency and Dollar Amount. You reserve the right to impose limits on the amount(s) and/or number of deposits that I transmit using the Services and to modify such limits from time to time. I understand and agree that I cannot exceed the limitations on frequency and dollar amounts of remote deposits that are set forth by you.
Unacceptable Deposits. I agree to scan and deposit only checks as that term is defined in Federal Reserve Regulation CC (“Reg CC”). I understand and agree that I am not permitted to deposit the following items using the Services:
1. Any item drawn on my account or my affiliate’s account at United Texas.
2. Any item that is stamped with a “non-negotiable” watermark.
3. Any item containing obvious alteration to any of the fields on the front of the check or item, or which I know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the item is drawn.
4. Any item issued by a financial institution in a foreign country.
5. Any item that is incomplete.
6. Any item that is “stale dated” (more than six months from its date) or “post dated” (date in the future).
7. Savings Bonds
8. Any third-party check, (i.e., any item that is made payable to another party and then endorsed to me by such party.)
9. Any item purported to be a lottery or prize winning.
10. Any item previously submitted for deposit.
11. Any item previously converted to a substitute check, as defined in Reg CC.
12. Any item that is a remotely created check, as defined in Reg CC.
13. Any item prohibited by United Texas’ current procedures relating to the Services or which are otherwise not acceptable under the terms of my United Texas account.
Changes in Financial Circumstances. I understand and agree that I must inform you immediately in the event a material change in my financial circumstances as or in any of the information provided in my Application including any supporting financial information. If I am using the Service to deposit items into an account in the name of a Business to which I am a party, this includes, but is not limited to, notification of the following: (a) changes in transaction volumes at my business; (b) any change in a representation or statement made or furnished to you by me or on my behalf in my Application; (c) a material change occurs in my ownership or organizational structure (acknowledging that any change in ownership will be deemed material when ownership is closely held); (d) I liquidate or dissolve, or enter into any consolidation merger, partnership, or joint venture; (e) I sell any assets except in the ordinary course of my business as now conducted, or sell, lease, assign or transfer any substantial part of my business or fixed assets or any property or other assets necessary for the continuance of my business as now conducted including, without limitation, the selling of any property or other assets accompanied by the leasing back of the same; (f) I cease doing business, become insolvent, a receiver is appointed for all or any part of my property, I make an assignment for the benefit of creditors, or any proceeding is commenced either by me or against me under any bankruptcy or insolvency laws or any other law or laws relating to debtors; (g) any guaranty of my indebtedness to you, whether related or unrelated to the Account or the Services, ceases to be in full force and effect or is declared to be null and void; or the validity or enforceability thereof is contested in a judicial proceeding; or any guarantor denies that it has any further liability under such guaranty; or any guarantor defaults in any provision of any guaranty, or any financial information provided by any guarantor is false or misleading); (h) I or any guarantor dies; if I am a sole proprietorship, the owner dies; if I am a partnership, any general or managing partner dies; if I am a corporation, any principal officer or 10.00% or greater shareholder dies; if I am a limited liability company, any managing member dies; if I am any other form of business entity, any person(s) directly or indirectly controlling ten percent (10.00%) or more of the ownership interests of such entity dies; (i) any creditor tries to take any of my property on or in which you have a lien or security interest, including a garnishment of any of my accounts with you; (j) a judgment or judgments is entered against me or any guarantor(s) in the aggregate amount of $250 or more that is not satisfied within thirty (30) days or stayed pending appeal; (k) an involuntary lien or liens is attached to any of my assets or property and not satisfied within thirty (30) days or stayed pending appeal; (l) an adverse change occurs in my financial condition or applicable credit histories; and (m) I am in default under any agreement for borrowed money or any other material contract. I agree to provide you any financial records you reasonably request to determine my financial status during the term of this Disclosure and Agreement.
Confidentiality. I acknowledge and agree that confidential data relating to your Services, marketing, strategies, business operations and business systems (collectively, “Confidential Information”) may come into my possession in connection with this Disclosure and Agreement. I understand and agree that I am prohibited from disclosing and agree to maintain the confidentiality of your Confidential Information.
Waiver. The failure of either party to seek a redress for violation, or to insist upon the strict performance, of any covenant, agreement, provision, or condition hereof shall not constitute the waiver of the terms or of the terms of any other covenant, agreement, provision, or condition, and each party shall have all remedies provided herein with respect to any subsequent act which would have originally constituted the violation hereunder.
Relationship. This Disclosure and Agreement does not create, and shall not be construed to create, any joint venture or partnership between the parties. No officer, employee, agent, servant, or independent contractor of either party shall at any time be deemed to be an employee, servant, agent, or contractor of the other party for any purpose whatsoever.