This Mobile Remote Deposit Capture User Agreement (“Agreement”) contains the terms and conditions for the use of the Mobile Check Deposit Service (“Service”) by TowneBank. Each reference in this Agreement to “TowneBank”, the “Bank”, “we”, “us”, or “our” refers to TowneBank, a Virginia banking corporation, and each reference to “you” and “your” refers to the Consumer Customer, or Business Customer acting through the Authorized Individual, party to this Agreement. Other agreements you have entered into with TowneBank, including the Depository Agreement, Consumer/Small Business Online Banking Service Agreement (“Master Agreement”) and Disclosures governing your TowneBank account(s), are incorporated by reference and made a part of this Agreement. Terms used but not defined in this Agreement shall have their respective meanings herein as set forth in the Master Agreement.
1. Description of Service:
a. The Service is designed to allow you to make deposits to your checking, savings, or money market accounts by using a supported mobile device with a camera to create an image of a paper check and electronically transmitting it and the related deposit information to us or our designated processor.
2. Acceptance of these Terms:
a. Your use of the Service constitutes your acceptance of the terms of this Agreement. We may amend this Agreement from time to time. We will notify you of any material change by mailing or otherwise delivering to you or posting an updated Agreement on our public website 10 calendar days prior to the effective date of the change, unless the provisions of the Master Agreement require a different type of notice or a different notice period. Your continued use of the Service will indicate your acceptance of the revised Agreement. Further, TowneBank reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Service. Your continued use of the Service will indicate your acceptance of any such changes to the Service.
3. Limitations and Availability of Service:
a. When using the Service, you may experience difficulties, such as, but not limited to, TowneBank system maintenance or technical difficulties including those of the Internet service provider and Service-related software. As more fully set forth in Paragraph 16, TowneBank shall not assume responsibility for any technical or other difficulties or any resulting damages that you may incur. You acknowledge that, in the event that the Service is interrupted or is otherwise unavailable, you can deposit original checks in person at a TowneBank location, at a deposit-accepting ATM, or by U.S. mail.
b. TowneBank reserves the right to change the qualifications of the Service at any time without prior notice. You agree that TowneBank may reject any check or item transmitted through use of the Service without any liability to you. You agree that TowneBank shall not be liable to you for any checks or items it does not receive or for any images that are not readable. You further agree that TowneBank shall have no liability to you for any alterations to a check or other item after it has been transmitted to TowneBank by you. TowneBank reserves the right to change, suspend or discontinue the Service, in whole or in part, or your use of the Service, in whole or in part, immediately and at any time without prior notice to you.
4. Service Requirements:
a. Use of the Service requires that you have appropriate hardware and related software, such as, but not limited to, a camera-enabled mobile device that is acceptable to us and that satisfies all technical specifications and other requirements that we and/or our service provider(s) establish and specify. You must also be enrolled in our Online Banking Service and have downloaded our latest version of the TowneBank Mobile Banking application. You must meet the eligibility criteria for the Service as determined by TowneBank and have at least one active deposit (checking, savings, or money market) account with us.
b. We and/or our service provider(s) may change these specifications and/or requirements from time to time. You are solely responsible, at your sole expense, for purchasing, installing, operating, replacing, upgrading, and maintaining all hardware and software, including those from third-parties, required to use the Service. You agree that TowneBank shall not be responsible to you for any third party software you may need to use the Service. Any such software is accepted by you “as is” and is subject to the terms and conditions of the software agreement you enter into directly with the third-party software provider at the time of download and installation.
c. Email Notifications: You will receive notices concerning your mRDC transactions via email. The email notices will provide the status of your deposit at the email address associated with your online banking access. Failure to enter a current email address in your online banking profile will result in not receiving notices concerning mRDC transactions.
5. Check and Check Image Requirements:
a. Any image of a check, as that term is defined in Federal Reserve Board Regulation CC (“Reg. CC”), that you transmit to us must accurately and legibly provide all the information on the front and back of the check at the time it is presented to you by the drawer. Original checks are converted to an Image Replacement Document (as such term is defined in the Check Clearing for the 21st Century Act and Reg. CC), for deposit with the Bank and for processing and presentment to a collecting or paying financial institution. You agree that the image of the check transmitted to TowneBank shall be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code.
b. Prior to capturing the image of the original check, you shall indorse the back of the check. Your indorsement should include a legible signature and “For mobile deposit only to TowneBank” under the signature.
c. A check and any image of a check transmitted using the Service must include the accurate and legible presentation of the following (and other features as appropriate):
i. Pre-printed information that identifies the check drawer and the financial institution on which the original check is drawn,
ii. The MICR encoded account number and drawee bank’s routing and transit number;
iii. The date the check was written;
iv. The drawer’s signature(s);
v. Other information placed on the check prior to the time an image of the check is captured, such as any indorsements applied to the back of the check; and
vi. The check is otherwise suitable for automated processing in the same manner as the original check.
d. The image quality of 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.
6. Ineligible Items:
a. You agree that you will not scan and deposit any of the following types of checks or other items, which shall be considered ineligible items:
i. Checks payable to any person other than you.
ii. Checks that have been altered in any way, or that you know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the check is drawn.
iii. Checks payable to you jointly with one or more other persons, unless deposited into an account in the name of all payees.
iv. Checks previously converted to a substitute check, as defined in Reg. CC.
v. Checks drawn on a financial institution located outside the United States.
vi. Checks that are remotely created checks, as defined in Reg. CC.
vii. Checks not payable in United States currency.
viii. Checks dated more than 6 months prior to the date of deposit.
ix. Checks or items prohibited by TowneBank’s current procedures relating to the Service or which are otherwise not acceptable under the terms of your TowneBank account.
x. Checks payable on sight or payable through drafts, as defined in Reg. CC.
xi. Checks with any indorsement on the back other than that specified in this Agreement.
xii. Checks that are drawn or otherwise issued by the U.S. Treasury Department.
xiii. Checks that have previously been submitted through the Service or through a remote deposit capture Service offered at any other financial institution, or that have otherwise been deposited with TowneBank or any other financial institution, including checks that have been returned unpaid.
b. If you deposit any item listed above, you agree to indemnify and reimburse TowneBank for, and hold TowneBank harmless from and against, any and all losses, costs and expenses (including reasonable attorneys’ fees) TowneBank may incur associated with any warranty, indemnity or other claim related thereto. The provisions of this Paragraph 6(b) are in addition to the provisions of Paragraph 16.
7. Rejection of Deposits by the Bank:
a. After we receive check images and all other required deposit information from you through the Service, we shall provisionally credit your designated account for the total amount of such checks. The provisional credit is subject to final payment of the checks and is also subject to your Bank Deposit Account Agreement.
b. You agree that all deposits received by us are subject to verification and final inspection and may be rejected by us in our sole discretion, and, as provided in Paragraph 16, you agree to be liable to the Bank for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against the Bank relating to such deposits.
c. You authorize that we may debit any of your accounts to obtain payment for any item that has been rejected or returned, for any adjustment related to such item or for any warranty claim related to such item, whether or not the rejection, return, adjustment, or warranty claim was made in a timely manner. You also agree that we may debit from any of your Bank accounts the amount of any checks that that were deposited more than once. You understand that you are solely responsible for any service charges, overdraft charges, late fees, and returned check/non-sufficient funds charges levied against you, your account, or any accounts you may have at other financial institutions that may result from our rejection of any item, check holds, or deposit delays of any kind. Our right to charge your account(s) will apply without regard to whether any check was returned in a timely manner, or whether there is any other claim or defense that the check was improperly returned.
d. Furthermore, if, after first having obtained TowneBank’s written consent to do so, you provide TowneBank with an electronic representation of a substitute check for deposit into an Account instead of an original check, you agree to indemnify and reimburse TowneBank for, and hold TowneBank harmless from and against, any and all losses, costs and expenses (including reasonable attorneys’ fees) TowneBank incurs resulting from any such substitute check’s failure to meet applicable substitute check standards and/or causing duplicate payments.
e. You acknowledge and agree that, while we normally provide notice of rejected deposits, we may reject any check transmitted through the Service in our sole discretion without notice to you, and you agree that we shall not be liable for any such rejection or failure to notify you of such rejection. If we reject a check for remote deposit, you must physically deposit the original check. You understand that returned deposit activity may result in the cancellation of the Service.
8. Storage, Security, and Destruction of Original Checks:
a. You agree that once a check has been deposited through the Service, the original check is your property and not the property of the Bank. You shall securely store the original check for a reasonable period, not to exceed thirty (30) days, after you receive a deposit receipt through the Service indicating that the check has been accepted. While the original check is in your possession, you agree to use a high degree of care to safeguard the original check and related files against security risks. Security risks include, without limitation, the theft or reproduction of the original check or unauthorized use of the information on the check or in the file. You shall take appropriate security measures to ensure the following:
i. Only authorized persons shall have access to the original check.
ii. The information contained on the check shall not be disclosed to unauthorized persons.
iii. The original check will not be duplicated, will not be scanned more than one time, and will not be presented, deposited or negotiated again in any way. Upon request by the Bank, you will promptly provide to the Bank the retained original check, or a sufficient copy of the front and back of the check in form acceptable to us, to aid in the clearing and collection process, or to resolve claims by third parties, or for our audit or fraud loss prevention purposes. If the original check cannot be so provided, you agree to execute any affidavit as to the status of the original check required by us.
iv. After the thirty (30) day retention period expires, you shall destroy the original check by shredding it or by any other permanent deletion method that does not allow the original check to be accessed by an unauthorized person(s) and in a manner that the original check is no longer readable or capable of being reconstructed. After destruction of an original check, the image will be the sole evidence of the original check. You agree to be responsible to us for any losses, costs, expenses, and damages we may incur as a result of your failure to comply with the provisions of this Paragraph.
9. Availability of Funds:
a. You agree that items transmitted using the Service are not subject to the funds availability requirements of Reg CC. In general, if an image of an item you transmit through the Service is received and accepted before 6:00 PM, Eastern Time, on a business day that we are open, we consider that day to be the day of your deposit. Otherwise, we will consider that the deposit was made on the next business day we are open. Please note that all deposits are subject to verification and may not be available for immediate withdrawal. Funds deposited using the Service will generally be made available the next business day after the day of deposit. For the purposes of this agreement, a business day is Monday through Friday, excluding all holidays recognized by the federal government.
10. Deposit Limits:
a. TowneBank may establish deposit limits based on such factors as creditworthiness, the length and extent of your relationship with us, transaction and experience information, and such other factors as TowneBank, in its sole discretion, deems relevant. If you attempt to initiate a deposit in excess of these limits, we may reject your deposit. If we permit you to make a deposit in excess of these limits, such deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a deposit at other times. The Bank may, in its sole discretion, also establish a daily or monthly statement cycle limit on the number of items you may deposit. Daily and monthly deposit limits may vary for users of other services, such as Deposit Wizard.
a. You understand the importance of your role in preventing misuse of your accounts associated with the Service, and you agree to promptly examine your paper or electronic statement for each of your accounts as soon as you receive it and notify us of any errors in accordance with your Account Agreements. You agree to protect the confidentiality of your accounts, account numbers, and passwords. Data transmitted using the Service is encrypted in an effort to provide transmission security. The Service utilizes identification technology to verify that the sender and receiver of transmissions related to the Service can be appropriately identified by each other. Notwithstanding our efforts to ensure that the Service is secure, you acknowledge that the Internet is inherently insecure and that all data transfers occur openly on the Internet and potentially can be intercepted or misdirected by others. We cannot, and do not, warrant that all data transfers to and from us or third parties will not be intercepted or misdirected by others. You agree to notify us immediately if you believe any user IDs, PINs, passwords, or other confidential credentials have been lost, stolen, used without your permission, or otherwise compromised.
b. You agree that we shall not be liable to you for, and you hereby release us from, any and all claims or damages resulting from, or related to, any malicious software or related problems that may be associated with your use of the Service, e-mail or the Internet. You represent and warrant to us that all images and files transmitted to us through the Service will contain no viruses or any other disabling features that may have an adverse impact on our network, data, or related systems.
c. You shall comply with all Security Procedures outlined in this Agreement and the Master Agreement and agree not to bypass, override or disable any security mechanisms in the processing software or processing equipment. You will assist in the installation and implementation of any changes and upgrades to the Service as required by Bank to ensure compliance with regulatory changes and developments, or to protect the integrity and security of such Service.
12. Compliance with Law and Prohibited Activities:
a. You agree to use the Service for lawful purposes and in compliance with all applicable laws, rules, regulations, and ordinances pertaining to your use of the Service, as well as all laws relating to the banking transactions contemplated hereunder. You also agree to be bound by any clearinghouse rules or agreements, operating circulars, image exchange agreements, and other documents to which we are a party that govern the Service we provide. You agree that you will not use the Service in locations that are prohibited under U.S. law and regulations, including laws and regulations issued by the Office of Foreign Assets Control. As more fully set forth in Paragraph 16, you agree to indemnify and hold us harmless from any damages, liabilities, costs, expenses (including attorneys’ fees) or other harm arising out of any violation thereof.
b. You acknowledge that you are prohibited from engaging in, and you represent and warrant to the Bank that you do not and shall not engage in, any business or activity that:
i. would result in your being or becoming a money services business that regularly cashes third party checks, sells money orders, or handles wire transfers or other financial services for third parties;
ii. would result in your accepting restricted transactions in connection with another person in unlawful Internet gambling;
iii. would result in the Bank’s being used as a conduit for money laundering or other illicit purposes; iv. would directly or indirectly result in any activity or use of the Service that may be illegal or fraudulent.
13. Ownership and License:
a. You acknowledge and agree that the Bank and its Service provider(s) retain all ownership and proprietary rights in and to the Service, associated content, technology, Mobile Banking app and website(s). You are permitted to use the Service only as expressly authorized by this Agreement. Your use of the Service is subject to and conditioned upon your complete compliance with this Agreement.
b. In addition, you agree that you 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 the Service.
c. Without limiting the restriction of the foregoing, you may not use the Service
i. in any anti-competitive manner;
ii. for any purpose which would be contrary to TowneBank’s business interest; or
iii. to TowneBank’s actual or potential economic disadvantage in any aspect.
14. Fees and Charges:
a. We reserve the right to impose fees for the Service in the future and we will notify you of any such fees, in the manner and to the extent required by this Agreement, the Master Agreement and by law. Your use of the Service after the effective date of any fee changes shall constitute your agreement to such fee changes. You also understand and agree that you are responsible for any wireless service provider charges and any and all other costs, fees and charges that you may incur by accessing and using the Service.
15. Third Party Disclosures, Assignments and Beneficiaries:
a. You agree that we may from time to time disclose to third parties information about your Accounts or the transactions that you make through the Service in accordance with the following conditions. We will disclose information to third parties about your Accounts or the transactions you make:
i. Where it is necessary for completing transactions or providing any other Service; or
ii. In order to verify the existence and condition of any Account for a third party, such as a credit bureau or merchant; or
iii. In order to comply with government agency or court orders; or
iv. If you give us your written permission.
b. You hereby authorize the transfer of any information relating to you to and between the branches, subsidiaries, affiliates and agents of TowneBank and third parties selected by any of them, wherever situated, for confidential use in connection with the Service and the transactions thereunder. You acknowledge that any such branch, subsidiary, affiliate, agent or third party shall be entitled to transfer any such information as required by any law, court, regulator or legal process. You agree to keep confidential the Security Procedure and other TowneBank information provided to you in connection with this Agreement and the Master Agreement (except TowneBank information in the public domain).
c. You may not assign all or any part of your rights or obligations under this Agreement without our prior express written consent, which may be withheld in our sole discretion. We may assign or delegate all or any part of our rights or obligations under this Agreement, including, without limitation, the performance of our obligations set forth herein. This Agreement will be binding on and inure to the benefit of the successors and permitted assigns of either party.
d. This Agreement is for the benefit of you and TowneBank and is not intended to grant, and shall not be construed as granting, any rights to or otherwise benefiting any other person, except as expressly otherwise provided in this Agreement.
16. Indemnification of TowneBank:
a. You hereby agree to indemnify, defend, and hold harmless TowneBank, its subsidiaries and its affiliates and each of their respective directors, officers, employees, and agents (collectively in this Paragraph 16, “Indemnitees”) from and against all liabilities, damages, claims, obligations, demands, charges, costs, or expenses (including reasonable fees and disbursements of legal counsel and accountants) awarded against or incurred or suffered (collectively, "Losses and Liabilities") by Indemnitees arising directly or indirectly from or related to the following (except for Losses and Liabilities arising directly or indirectly from or related to our own gross negligence or willful misconduct):
i. Any negligent or intentional act or omission by you in the performance of your obligations under this Agreement, including, but not limited to,
1) duplicate scanning of the same original check,
2) transmission of duplicate electronic items,
3) calculation errors of deposit totals,
4) numerical errors on deposit data entry, and
5) fraudulent or unauthorized use of your hardware, software, or credentials.
ii. Any material breach in a representation, warranty, covenant, or obligation of you contained in this Agreement;
iii. The violation of any applicable law, statute, or regulation in the performance of your obligations under this Agreement;
iv. TowneBank acting as a "reconverting bank" under the Check Clearing for the 21st Century Act through the creation of “substitute checks” or purported substitute checks using an electronic item or an illegible electronic item;
v. Our presenting to a payor bank an electronic item for payment; and
vi. Your failure to:
1) securely maintain your hardware or the original paper checks, or
2) properly and timely dispose of original paper checks in accordance with Paragraph 8, in which event such Losses and Liabilities shall include, without limitation, consequential damages.
vii. If the applicable hardware or software, or the Service, or any part of the TowneBank online banking system or other operating system, was not working properly and you knew about the breakdown when you started your transaction.
viii. If circumstances beyond our control, such as an act of God, failure, delay, or error on the part of any third-party service provider, power outage, difficulty with telephone or cable lines, the Internet or satellite communications, difficulty with any hardware, software, or the Service, computer virus or related problem, or cessation of the operation of the Service or the arrangement between TowneBank and the Service, prevent or delay the transaction, despite reasonable precautions that we have taken.
ix. If your funds are being held or frozen or are subject to legal proceedings.
x. If the Deposit Account in connection with the Service has been closed.
xi. If we do not receive the necessary deposit information from you, or if such information is incomplete or erroneous when received by us.
b. This Paragraph 16, together with any additional indemnities and hold harmless agreement set forth elsewhere in this agreement, shall survive the termination of the Service.
17. Limits on TowneBank's Liability:
a. Our liability for deposits made to Deposit Accounts using the Service may also be governed by other Paragraphs of this Agreement. If any provision herein is inconsistent with any provision of applicable law that cannot be varied or waived by agreement, the provisions of applicable law shall control. To the fullest extent permitted by applicable law, you agree that we will have no liability whatsoever to you for any loss, damage, or claim arising out of any delay or failure in the performance of the Service in accordance with the terms of this Agreement. Our duties and responsibilities to you are strictly limited to those described in this Agreement, except with respect to any such provisions of the law that cannot be varied or waived by agreement. In no event will TowneBank be liable for any consequential, special, or punitive damages or for any indirect loss that you may incur or suffer in connection with the Service (even if TowneBank has been informed of the possibility of such damages), including, without limitation, attorneys' fees. The Service is provided by an independent contractor and not TowneBank's agent. TowneBank's sole duty shall be to exercise reasonable care in the initial selection of the Service Provider. YOU ACKNOWLEDGE THAT NO EXPRESS OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS OR A PARTICULAR PURPOSE, IS MADE BY TOWNEBANK WITH RESPECT TO ANY OPERATING SYSTEM, INCLUDING WITHOUT LIMITATION THE TOWNEBANK ONLINE BANKING SERVICE OR MOBILE CHECK DEPOSIT SERVICE OR ANY SOFTWARE, AND TOWNEBANK HEREBY DISCLAIMS ALL SUCH WARRANTIES. The only warranties are those provided by the licensor of any related software and set forth on the related software package. You agree that TowneBank shall not be liable to you for any failure or delay in processing a deposit, if such deposit would result in the violation of any applicable state or federal law, rule, regulation or guideline. To the fullest extent permitted by applicable law, you agree that TowneBank shall not have any liability whatsoever to you for any loss caused by any act, error, or omission of you or any other person, including, without limitation, the Service Provider, any Internet access service provider, any federal reserve bank or transmission or communications facility or any intermediary or receiving financial institution, and no such person shall be deemed TowneBank's agent.
a. We may waive enforcement of any provision of this Agreement. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of the Agreement. Any such waiver shall not affect our rights with respect to any other transaction or to modify the terms of this Agreement. In the event that any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable to any extent, the remainder of the Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
a. We may terminate this Agreement at any time and for any reason. This Agreement shall remain in full force and effect unless and until it is terminated by us. Without limiting the foregoing, this Agreement may be terminated if you breach any term of this Agreement, if you use the Service for any unauthorized or illegal purpose or you use the Services in a manner inconsistent with the terms of your Bank Services Agreement, Commercial Bank Services Agreement or any other agreement with us.