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1. Service and Service Terms.
The following terms and conditions (the “Agreement”) apply to the Consumer Electronic Banking / Mobile Remote Deposit Capture Service (the “ .communityCapture Service”) that Wintrust Bank, N.A. (the “Bank”) may provide to its Deposit Customers. Deposit Customer acknowledges and agrees that the .communityCapture Service or any portion of the .communityCapture Service may be provided by one or more subcontractors. The provisions and applicable service terms of the Bank’s Account Agreement and Disclosure (“AAD”) that the Deposit Customer received at account opening are incorporated into this Agreement by this reference. In the event of conflict among this Agreement and any other agreements between the Bank and its Deposit Customer, including the AAD, the provisions of this Agreement shall control.
2. Overview and definitions.
2.1 "Authorized User" means the Deposit Customer or agent of the Deposit Customer.
2.2 "Business Day" means any day which the Bank is open to conduct substantially all of its services, but shall not include Saturday, Sunday or federal holidays.
2.3 "Capture Device" means any device acceptable to the Bank that provides for the capture of images from original Items and for transmission through a clearing process.
2.4 "Check" shall have the same definition as set forth in Check 21.
2.5 "Check 21" means the Check Clearing for the 21st Century Act, as well as Subparts C and D of Federal Reserve Board Regulation CC, and to the extent applicable, Subpart A of Regulation J of the Board of Governors of the Federal Reserve System.
2.6 "Deposit Customer" means any person(s) that: has an established Checking, Savings or Money Market deposit account for personal, family or household purposes with the Bank and has had no more than six overdraft occurrences within the past or current calendar year.
2.7 "Image Replacement Document" or “IRD” means (a) a Substitute Check as defined in Check 21; or (b) the paper reproduction that will be created when an Item cannot be converted to an ACH Transaction.
2.8 "Item" means a Check, money order, cashier's check, official check, U.S Treasury check, or any other payment instrument drawn on a financial institution within the United States from a Payor to Deposit Customer that may be transmitted as either data or image, and where applicable in the context, includes the electronic image of the front and back of an Item, in addition to other required information as specified by the Bank from time to time, in the format specified by the Bank from time to time. Notwithstanding the foregoing, it is understood that the Deposit Customer will only be transmitting electronic images of the front and back of Items and not any paper Items. In order for an Item to be processed for deposit, it must be properly endorsed.
2.9 "Payor" means consumers or businesses that make payments to Deposit Customer by means of Items, but Deposit Customer shall not be a Payor.
2.10 "Service(s)" means the .communityCapture Service provided by the Bank including electronic check conversion and image archive systems that allow the use of a Capture Device to obtain and transmit the front and back images of Items and accompanying transaction data for the purpose of delivery to the Bank for clearing as an IRD. Service also includes any applicable support services. The Service shall only be provided for Items received by an individual Deposit Customer for personal, family or household purposes that are being deposited into a Deposit Customer’s account at the Bank.
2.11 "Service Start Date" means the date that the Services are first utilized by the Deposit Customer.
2.12 "Technology" means the Bank’s or its subcontractor's deposit capture applications and processes designed to facilitate the electronic clearing of Items. Said applications are accessed through Capture Devices, utilizing software and hardware provided by or acceptable to the Bank and are proprietary access points to payment processing networks and systems used to complete the clearing of Items. Technology may include but is not limited to Deposit Customer service support, reports, software, software tools, user interface designs, and documentation, and any derivatives, improvements, enhancements or extensions thereof developed or provided by the Bank or its subcontractors and used in the provision of the Services hereunder. Any software provided by the Bank or its subcontractors pursuant to the Service shall be considered Software as defined in the End User License Agreement Terms for the Downloadable App of the Mobile Banking - Terms and Conditions.
2.13 "Term" shall mean the term of this Agreement beginning as of the Service Start Date until terminated as provided herein.
3. Deposit Customer Obligations, Suspension and Cancellation of Service.
3.1 Online Banking Requirements: Use of Online Banking is required for access to the Service. This Agreement supplements the Online Banking and Bill Payment Agreement and Disclosure.
3.2 Mobile Banking Requirements: Use of Mobile Banking is required to use a Mobile Device as a Capture Device. This Agreement Supplements the Mobile Banking – Terms and Conditions.
3.3 Hardware and Software Requirements: In order to utilize the Services, Deposit Customer must have the following hardware and software with the indicated specifications:
|Operating System||Apple Safari®||Microsoft Internet Explorer®||Edge||Mozilla Firefox®||Google Chrome™|
|Mac OS X 10.14 (Mojave™)||13.0.1||N/A||N/A||80.0||85.0|
|Mac OS X 10.15.5 (Catalina™)||13.1.1||N/A||N/A||80.0||85.0|
|Operating System||Apple Safari®||Microsoft Internet Explorer®||Google Chrome™|
Effective October 2020
Software installed to PC/MAC (Required): Java Runtime Environment (JRE) 1.4.2 or higher.
Internet Connectivity (Required): For PC or MAC: any broadband or DSL type Internet access, with a minimum of 128Kbps download speed.
For Mobile Device: Data Plan
Mobile Devices (Optional if using a TWAIN compatible scanner):
iPhone with IOS 12.0 or above
Android OS 8.0 - Oreo or above; device must have an auto-focus camera.
ATTN: Important Note for Mobile Browser and Blackberry users:
The Service is not available with a Mobile Browser or Blackberry device at this time.
Deposit Customer may access the Service via Online Banking using a Twain compatible scanner.
Certified Scanners attached to the PC/MAC (Optional if using an iPhone or Android Mobile Device):
For PC: TWAIN compliant scanner or ‘All-in-One’ copier scanner with TWAIN drivers installed.
For Mac: ONLY Twain-compliant scanners or an Ethernet-attached Magtek scanner is approved for use.
Please refer to the scanner User Manual to determine if it is TWAIN compatible.
3.4 Deposit Customer Responsibilities: Deposit Customer authorizes the Bank to convert Items to IRDs or transmit Items as images and further authorizes the Bank or any other financial institution to which an Item is sent to handle the Item. Deposit Customer agrees to, at its sole expense, a) provide connectivity between the Capture Device and the Technology; b) maintain the Capture Device in accordance with the instructions provided by the Bank, its subcontractors and/or any other Capture Device provider; c) as applicable, utilize Deposit Customer’s software, or the Bank’s software to scan, load, and format Items as needed for transmission to the Bank; d) process return data and any remittance data delivered by the Bank for the purpose of updating Deposit Customer’s internal systems (which may include electronic and paper return Items); and, e) implement and maintain security measures, including firewall protection, in compliance with its obligations under this Agreement. Deposit Customer further agrees that it will comply with any instructions and/or procedures regarding the Service and submission of Items that may be issued by the Bank from time to time.
3.5 Withdrawal of Access/Suspension of Service: The Bank reserves the right to deny, suspend or revoke access to the Service immediately, in whole or in part, in its sole discretion, without notice, if the Bank believes Deposit Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Service inconsistent with this Agreement. Further, the Bank or its subcontractor shall have the right to suspend the Service immediately (a) in the event of an emergency or in the event of force majeure, (b) if the Bank is uncertain as to the accuracy of any Item, or (c) if the Bank determines in its sole discretion that the financial condition of Deposit Customer renders Deposit Customer’s use of the Service no longer advisable.
3.6 Handling of Transmitted Items: Deposit Customer shall be responsible for the proper disposal of all Items following their transmittal to the Bank. Deposit Customer agrees to retain and safeguard the original Item for at least 14 days after transmittal of the Item. After 14 days and subject to Deposit Customer’s verification that the funds associated with the Item have been added to Deposit Customer’s account balance, Deposit Customer agrees to mark the Item “VOID” and properly dispose of the Item by shredding or another commercially acceptable means of data destruction. All Items deposited using the Service are subject to final confirmation that an acceptable IRD has been created for further collection.
3.7 Prohibition on Duplication of Deposits. Unless the Bank has notified Deposit Customer that an Item has been rejected or returned unprocessed, Deposit Customer is prohibited from subsequently presenting for deposit any Item included in an IRD either in its paper based form or in digital form within another deposit. Deposit Customer agrees that the posting of a deposit by the Bank into Deposit Customer’s account, such that it appears in the transaction history of the account as presented through the Bank’s Online Banking system, shall constitute confirmation that an IRD has been credited to Deposit Customer's account and Deposit Customer shall properly dispose of the item as described in Section 3.6. Deposit Customer shall indemnify the Bank for any and all losses or other damages the Bank may suffer as a result of any deposit of a Deposit Customer’s Item more than once. Deposit Customer expressly authorizes and instructs the Bank to debit Deposit Customer’s account(s) in the amount of any Item which is deposited more than once.
3.8 Account Statement Examination: Unless Deposit Customer notifies the Bank of any errors to deposits made through the Service within 60 days after the applicable account statement is mailed or otherwise provided to Deposit Customer, such statement regarding all deposits made through the Service shall be deemed to be correct.
4. Payment Processing.
4.1 Deposit Limits: There are limits to the number and dollar amount of deposits that may be made using the Service. The following limits will apply:
Deposited Item Limit: $5,000.00 (no single item may be greater than $5,000.00)
Daily Limit: $5,000.00 (no total deposit for the day may exceed $5,000.00)
Daily Item count limit: 5 (total items in a day’s deposit may not exceed 5)
Multi-day Limit: $10,000.00 (total deposits made within 10 days may not exceed $10,000.00)
Multi-day Limit period: 10 business days (total # of days in multi-day period)
Multi-day Item count: 15 (total items deposited in a multi-day period may not exceed 15)
4.2 IRD Processing: Items may be transmitted for electronic processing by other financial institutions or converted to IRDs and transmitted to a printing facility for printing and clearing through traditional paper processing channels, at the Bank’s sole discretion. The IRDs will be created in accordance with Check 21; alternatively, the Bank may process Items as photocopies in lieu of originals, under guidelines established between the Bank and Deposit Customer and applicable industry standards. Items that fail to satisfy the warranties made to the Bank by Deposit Customer, that fail to meet the requirements of the Bank or Check 21, or that are otherwise not able to be processed, may be charged back to Deposit Customer 's account(s) or returned to Deposit Customer . Deposit Customer agrees to be bound by any clearinghouse agreements and operating circular and image exchange agreements to which the Bank is a party. In no event shall the Bank be liable for any interest on an Item that is rejected.
4.3 Processing of Items: Images of Items transmitted by Deposit Customer are not considered received by the Bank until Deposit Customer has received an electronic confirmation of the receipt of the deposit from the Bank. However, receipt of the confirmation from the Bank does not mean that the transmission was error free or complete. Items transmitted by the Deposit Customer and received by the Bank or its subcontractors by 6:00p.m. CST Monday through Friday shall be credited to the Deposit Customer’s applicable account on the same Business Day. Items received by the Bank after 6:00 p.m. CST on any Business Day or on a Saturday, Sunday or federal holiday shall be credited to the Deposit Customer’s applicable account on the next successive Business Day. Funds from Items deposited under the terms of this Agreement will generally be available to the Deposit Customer pursuant to the Banks Funds Availability Policy, except that funds from the following checks: U.S. Treasury checks, State and Local Government checks, Cashier’s, Certified, Teller checks, Federal Reserve Bank, Federal Home Loan Bank checks and postal money orders, may be made available up to 2 business days after the day of your deposit.
4.4 Items not permitted for processing: Deposit Customer may only use the service to deposit Items the Bank considers acceptable. The following types of items will not be permitted for processing and Deposit Customer agrees not to submit them:
4.5 Deposit Customer Liability: Deposit Customer shall be solely responsible if any IRD for which Deposit Customer has been given provisional credit is subject to return or reversal, and neither the Bank nor its subcontractors shall be liable or responsible for same. Deposit Customer acknowledges that all credits received for deposit are provisional, subject to verification and final settlement.
Any dishonored Items will be returned as an image of the original or a substitute check as the charged-back Item. Information and data reported hereunder: (a) may be received prior to final posting and confirmation and is subject to correction and (b) is for informational purposes only and may not be relied upon. Deposit Customer agrees that the Bank shall have no liability for the content of payment-related information.
5. Intellectual Property Ownership.
This Agreement does not transfer to Deposit Customer any ownership or proprietary rights in the Technology or any work or any part thereof, and all right, title and interest in and to the Technology will remain solely with the Bank and/or its subcontractors.
6. WARRANTIES AND DISCLAIMERS.
6.1(A) DEPOSIT CUSTOMER WARRANTY: DEPOSIT CUSTOMER REPRESENTS AND WARRANTS TO THE BANK THAT: (1) DEPOSIT CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER AND ALL INFORMATION SUPPLIED BY DEPOSIT CUSTOMER TO THE BANK IS ACCURATE AND TRUE; (2) DEPOSIT CUSTOMER WILL PROVIDE ALL REASONABLE ASSISTANCE TO THE BANK AND ITS SUBCONTRACTORS IN PROVIDING THE SERVICE SET FORTH HEREIN; (3) DEPOSIT CUSTOMER AND ANY AUTHORIZED USERS WILL ONLY USE THE SERVICE FOR LAWFUL PURPOSES AND IN COMPLIANCE WITH ALL APPLICABLE RULES AND REGULATIONS AND WITH THE BANK'S REASONABLE INSTRUCTIONS, RULES, POLICIES, SPECIFICATIONS, TERMS AND CONDITIONS, AND OPERATING PROCEDURES AND WILL NOT VIOLATE ANY LAW OF ANY COUNTRY OR THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (4) DEPOSIT CUSTOMER HAS ONLY TRANSMITTED ACCEPTABLE ITEMS FOR DEPOSIT AND HAS HANDLED THE ORIGINAL ITEMS FOLLOWING TRANSMISSION TO THE BANK AS AGREED TO OR DIRECTED BY THE BANK AND IN ACCORDANCE WITH APPLICABLE LAW; (5) DEPOSIT CUSTOMER IS A PERSON AUTHORIZED TO ENFORCE EACH ITEM OR IS AUTHORIZED TO OBTAIN PAYMENT OF EACH ITEM ON BEHALF OF A PERSON ENTITLED TO ENFORCE AN ITEM; (6) THE ITEMS HAVE NOT BEEN ALTERED; (7) EACH ITEM BEARS ALL APPLICABLE ENDORSEMENTS IN A RESTRICTED FORMAT AS DIRECTED BY THE BANK ; (8) ALL THE WARRANTIES SET FORTH IN AND SUBJECT TO THE TERMS OF 4-207 OF THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE STATE OF ILLINOIS, AND AS MAY BE MODIFIED FROM TIME TO TIME, AS WELL AS ANY OTHER APPLICABLE SECTION THEREOF; (9) (a) THE ELECTRONIC IMAGE PORTION OF EACH ITEM ACCURATELY AND LEGIBLY REPRESENTS ALL OF THE INFORMATION ON THE FRONT AND BACK OF THE ORIGINAL CHECK AS OF THE TIME THE ORIGINAL CHECK WAS TRUNCATED, (b) THE INFORMATION PORTION OF THE ITEM CONTAINS A RECORD OF ALL APPLICABLE MICR-LINE INFORMATION REQUIRED FOR A SUBSTITUTE CHECK, AND (c) THE ITEM CONFORMS TO THE TECHNICAL STANDARDS FOR AN ELECTRONIC ITEM AS SPECIFIED BY THE BANK FROM TIME TO TIME; (10) DEPOSIT CUSTOMER WILL SUBMIT ONLY ONE ACCURATE AND CLEAR IMAGE OF THE FRONT AND BACK OF EACH ITEM TO THE BANK ONLY ONE TIME; (11) DEPOSIT CUSTOMER WILL NOT DEPOSIT THE ORIGINAL ITEM 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; (12) THE AMOUNT OF AN ITEM, AND SUCH OTHER INFORMATION CONTAINED IN SUCH ITEM WHICH IS ACCURATE AND COMPLETE. DEPOSIT CUSTOMER AGREES THAT THESE REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT AS OF THE DATE OF EACH ITEM AND THAT THE SUBMISSION OF EACH ITEM TO THE BANK FOR PROCESSING SHALL BE AN ACKNOWLEDGMENT OF EACH SUCH REPRESENTATION AND WARRANTY AS OF THAT DATE;
6.1(B) DEPOSIT CUSTOMER AGREEMENT. DEPOSIT CUSTOMER AND ANY AUTHORIZED USERS WILL NOT (1) SELL, LEASE, DISTRIBUTE, LICENSE OR SUBLICENSE THE TECHNOLOGY OR SERVICES; (2) MODIFY, CHANGE, ALTER, TRANSLATE, CREATE DERIVATIVE WORKS FROM, REVERSE ENGINEER, DISASSEMBLE OR DECOMPILE THE TECHNOLOGY OR SERVICES IN ANY WAY FOR ANY REASON; (3) PROVIDE, DISCLOSE, DIVULGE OR MAKE AVAILABLE TO, OR PERMIT USE OF THE TECHNOLOGY OR SERVICES BY, ANY THIRD PARTY; (4) COPY OR REPRODUCE ALL OR ANY PART OF THE TECHNOLOGY OR SERVICES; (5) INTERFERE, OR ATTEMPT TO INTERFERE, WITH THE TECHNOLOGY OR SERVICES IN ANY WAY; (6) ENGAGE IN SPAMMING, MAILBOMBING, SPOOFING, PHARMING, PHISHING, OR ANY OTHER FRAUDULENT, ILLEGAL OR UNAUTHORIZED USE OF THE SERVICES; (7) INTRODUCE OR TRANSMIT THROUGH THE TECHNOLOGY OR SERVICES, WITHOUT LIMITATION, VIA ANY PORTION OF THE DEPOSIT CUSTOMER'S COMPUTER SYSTEM THAT INTERFACES WITH THE TECHNOLOGY OR SERVICES, OR OTHERWISE, ANY VIRUS, WORM, SOFTWARE LOCK, DROP DEAD DEVICE, TROJAN-HORSE ROUTINE, TRAP DOOR, BACK DOOR, TIMER, TIME BOMB, CLOCK, COUNTER OR OTHER LIMITING ROUTINE, INSTRUCTION OR DESIGN OR ANY OTHER CODES OR INSTRUCTIONS THAT MAY BE USED TO ACCESS, MODIFY, DELETE, DAMAGE, DISABLE OR PREVENT THE USE OF THE TECHNOLOGY, SERVICES OR OTHER COMPUTER SYSTEMS OF THE BANK OR ITS SUBCONTRACTORS; (8) REMOVE, OBLITERATE OR ALTER ANY COPYRIGHT NOTICE, TRADEMARKS OR OTHER PROPRIETARY RIGHTS OR NOTICES AFFIXED TO OR CONTAINED WITHIN THE TECHNOLOGY OR SERVICES; OR (9) ENGAGE IN OR ALLOW ANY ACTION INVOLVING THE TECHNOLOGY OR SERVICES THAT IS INCONSISTENT WITH THIS AGREEMENT. SHOULD DEPOSIT CUSTOMER RECEIVE NOTICE OF ANY CLAIM REGARDING THE SERVICES, DEPOSIT CUSTOMER SHALL PROMPTLY PROVIDE THE BANK WITH A WRITTEN NOTICE OF SUCH CLAIM. DEPOSIT CUSTOMER AGREES THAT THE BANK IS LEGALLY ENTITLED TO A VALID AND UNQUALIFIED ENDORSEMENT OF DEPOSIT CUSTOMER AND DEPOSIT CUSTOMER GIVES THE BANK THE IRREVOCABLE RIGHT TO PLACE SUCH AN ENDORSEMENT ON THE ITEM. DEPOSIT CUSTOMER AGREES TO REIMBURSE THE BANK FOR ALL LOSSES RELATED TO DEPOSIT CUSTOMER 'S FAILURE TO PROPERLY ENDORSE A CHECK AS EXACTLY DRAWN OR RELATED TO DEPOSIT CUSTOMER 'S DEPOSIT OF AN ITEM THAT CONTAINS MULTIPLE ENDORSEMENTS OR A MISSING OR IMPROPER ENDORSEMENT.
6.2 DISCLAIMER: THE BANK AND ITS SUBCONTRACTORS MAKE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE TECHNOLOGY OR SERVICES AND/OR ACCESS TO OR USE OF THE SERVICES OR TECHNOLOGY PROVIDED TO DEPOSIT CUSTOMER HEREUNDER. THE BANK AND ITS SUBCONTRACTORS SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE BANK AND ITS SUBCONTRACTORS ALSO DO NOT GUARANTEE THAT DEPOSIT CUSTOMERS' ACCESS TO THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR FREE OR SECURE. THE BANK AND ITS SUBCONTRACTORS DO NOT GUARANTEE THE ACCURACY OF, AND SPECIFICALLY DISCLAIM LIABILITY FOR, INFORMATION OR DATA THAT IS SUPPLIED OR KEY- ENTERED BY DEPOSIT CUSTOMER OR AGENTS. THE BANK AND ITS SUBCONTRACTORS DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT OF INTERNET WEBSITES OR OTHER DATA RECEIVED BY DEPOSIT CUSTOMER OR PAYORS VIA THE INTERNET.
7. LIMITATION OF LIABILITY/INDEMNIFICATION.
7.1 LIMITATION OF LIABILITY: IN NO EVENT SHALL THE BANK BE LIABLE FOR DELAYS WHICH HAPPEN FOR REASONS BEYOND ITS CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF CIVIL, MILITARY, OR BANKING AUTHORITIES, NATIONAL EMERGENCIES, RIOTS, WEATHER, UNAVOIDABLE DIFFICULTIES WITH EQUIPMENT, THE UNAVAILABIILTY OF THE INTERNET, ANY ERRORS IN INFORMATION PROVIDED, ANY DIFFICULTIES CAUSED BY AN INTERNET OR OTHER SERVICE PROVIDER OR ANY HARDWARE OR SOFTWARE FAILURE, WHETHER CAUSED BY A VIRUS OR OTHERWISE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL THE BANK’S LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY KIND EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF ITEMS RECEIVED BY THE BANK FROM DEPOSIT CUSTOMER FOR THE SERVICE DURING THE MONTH PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED. THE BANK SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. DEPOSIT CUSTOMER AGREES THAT THE DOLLAR LIMITATION DESCRIBED IN THIS SECTION IS REASONABLE, EVEN IF ITS ACTUAL DAMAGES EXCEED THIS LIMITATION.
7.2 INDEMNIFICATION: IN ADDITION TO ITS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, AND EXCEPT FOR LOSSES OR EXPENSES ATTRIBUTABLE TO THE BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, DEPOSIT CUSTOMER AGREES TO INDEMNIFY THE BANK FOR ANY LOSS OR EXPENSE SUSTAINED (INCLUDING INTEREST, COSTS, AND ATTORNEY’S FEES AND EXPENSES OF LITIGATION) RESULTING FROM (i) DEPOSIT CUSTOMER 'S LACK OF AUTHORITY TO MAKE THE WARRANTY IN SUBSECTION 6.1(A)(5); (ii) ANY ACTION TAKEN OR NOT TAKEN BY THE BANK WITHIN THE SCOPE OF ITS AUTHORITY IN HANDLING AN ITEM; (iii) ANY WARRANTY REQUIRED TO BE MADE BY THE BANK WITH RESPECT TO AN ITEM UNDER APPLICABLE LAW OR REGULATION; AND (iv) BREACH OF THE REPRESENTATIONS OR WARRANTIES IN SECTION 6.1.
8.1 Termination: In addition to the denial, suspension, revocation and termination provisions in this Agreement, the Bank may immediately terminate the Service or any portion of the Service if the Bank determines that such Service or portion of any Service is in violation of the any other law or regulation, or in its sole discretion and without notice, decides to cease providing this Service. Deposit Customer may terminate the Service with notice to the Bank.
8.2 Obligations upon Termination: Upon the termination of this Agreement for any reason: (a) Deposit Customer 's access to, and use of, the Service will terminate; (b) Deposit Customer will return to the Bank any and all the Bank’s Services, equipment, software, documentation, Technology or other deliverables provided to Deposit Customer by the Bank, including any copies thereof held by Deposit Customer; and (c) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information or destroy same, and, upon request, provide written verification of same. Notwithstanding the foregoing, the Bank’s obligations with respect to subsection (c) shall be subject to the Bank’s record retention policies and applicable laws and regulations. The provisions of sections 6, 7, 8 and 9 shall survive termination of this Agreement.
9.1 The Bank’s Confidential Information: Deposit Customer acknowledges that the Technology and Services contain valuable trade secrets, which are the sole property of the Bank or its subcontractors and Deposit Customer agrees to hold (i) such trade secrets and (ii) any and all other information designated by the Bank as confidential (collectively, with the trade secrets, the "Confidential Information") in strict confidence and disclose only to those agents whose duties reasonably require access to same, provided that all such agents are informed of such use or disclosure restrictions as set forth herein and agree to same. Deposit Customer will take no less than all reasonable steps to prevent the unauthorized use, disclosure, duplication or access to the Confidential Information. Deposit Customer agrees to notify the Bank promptly upon learning of any unauthorized disclosure or use of any Confidential Information.
9.2 Unauthorized Use: Deposit Customer acknowledges that the unauthorized use, disclosure or duplication of any Confidential Information shall constitute a material breach of this Agreement and is likely to cause irreparable injury to the Bank, for which there is no adequate remedy at law. Accordingly, Deposit Customer hereby agrees that the Bank may seek injunctive relief against Deposit Customer to prevent or remedy any breach of Deposit Customer's confidentiality obligations described herein. Deposit Customer agrees to indemnify the Bank and hold it harmless from and against any and all losses, liabilities, claims, damages and expenses (including reasonable legal fees and expenses) arising from or relating to the disclosure of any Confidential Information or the failure to keep the Technology secure. Deposit Customer understands and agrees that the use of the Technology and Services is confidential and agrees to assume all risks of accidental disclosure, inadvertent use or unauthorized use by any party whatsoever, whether or not such disclosure or use is on account of Deposit Customer’s negligence.
10. Miscellaneous Provisions.
10.1 Relationship of Parties: The Bank and the Deposit Customer are independent parties and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Bank and the Deposit Customer . Neither the Bank nor the Deposit Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
10.2 Notices: Deposit Customer agrees that any notices required or permitted under this Agreement may be given electronically, by certified mail, return receipt requested, or by overnight mail delivered by a nationally recognized carrier. Notice shall be deemed delivered within one business day, if delivered electronically or by overnight carrier, and three business days if delivered by certified mail.
10.3 No Waiver: The failure of either party to enforce at any time any provision of this Agreement or to exercise any right herein provided shall not in any way be construed to be a waiver of such provision or right, and shall not in any way affect the validity of this Agreement or any part hereof, or limit, prevent or impair the right of either party to subsequently enforce any provision or exercise any right hereunder.
10.4 Governing Law and Severability: This Agreement shall be governed by the laws of the State of Illinois and of the United States, and any rule or regulation of the State of Illinois or a federal agency having jurisdiction over the Bank. A determination that any provision of this Agreement is unenforceable or invalid shall not render any other provision of this Agreement unenforceable or invalid. The rights of the Bank under this Agreement are cumulative of all other rights the Bank may have by law or otherwise.
10.5 Amendments; Termination: Unless applicable law provides otherwise, this Agreement may be amended, in the Bank’s sole discretion, by notice sent electronically or by mail to Deposit Customer at Deposit Customer’s last address known to the Bank. Notwithstanding the provisions of Section 10.2 above, notice under this Section 10.5 shall be effective not less than thirty (30) days after the day transmitted or mailed. The Bank shall not be bound by any modification of this Agreement unless the Bank expressly agrees to the modification in writing. Deposit Customer shall have the right to terminate the Agreement prior to the effective date of amendment. From time to time, the Bank may request Deposit Customer to provide additional information concerning Deposit Customer, including without limitation, additional financial information and the Bank may terminate this Agreement if satisfactory information is not received.
10.6 Assignment. The Bank may assign this Agreement or delegate any of its responsibilities to a third party without notice to or consent from Deposit Customer. Deposit Customer may not assign this Agreement or delegate any of its responsibilities to any third party, without the Bank’s prior written consent, which may be withheld for any reason.
10.7 Entire Agreement: This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof and supersedes all existing Agreements and all other related communications, written or oral.