Business Mobile Deposit Agreement
BUSINESS MOBILE DEPOSIT SERVICES AGREEMENT
TERMS AND CONDITIONS
This Remote Deposit Services Agreement (“Agreement”) is made and entered into between you (hereinafter, “Customer”) and LendingClub Bank (“Bank”) with its principal place of business at One Harbor Street, Suite 201, Boston, MA 02210. This agreement governs Customer’s use of the Business Mobile Deposit Service (“Service”). Bank offers the Service under this Agreement only in association with Customer’s deposit accounts with Bank (“Account”), and this Agreement supplements but does not replace any agreement(s) Customer might have executed with respect to services other than the Service.
1. Statement of Service.Subject to the terms and conditions of this Agreement, Bank shall provide the Service to Customer, which allows Customer to make deposits to Customer’s Account(s) by capturing an image of the item on a mobile device. The device will capture an image of the front and back of the check and will read and capture the magnetic ink character recognition (“MICR”) line of the check. After capture of the image and data, Customer will submit the image via the network connection of the device to the Bank or Bank’s designated processor (“Processor”) and Bank will provisionally credit Customer’s account for the amount of the deposit and enter the images of the checks into the collection process in accordance with the provisions of the Terms and Conditions of Your Account (“Deposit Agreement”) and this Agreement. Customer acknowledges and agrees that Bank may discontinue this Service, or any related content, features, products or services, or the terms thereof, at any time.
2. Hardware and Software.This Service requires Customer to use an Apple iPhone, Android device, or BlackBerry smartphone (“mobile device”) in order to make a deposit and transmit the image(s). Customer may incur additional related expenses for additional items, including but not limited to telephone service or Internet service charges related to the use of the Service. Customer is responsible for any costs or expenses associated with meeting and maintaining those technical requirements or additional items necessary to use the Service. Customer agrees that it is solely responsible for the operation and maintenance of all equipment used as part of this Agreement and will ensure that the vendor recommended maintenance is conducted by trained personnel, whether they are employees of the Customer or third-party employees. Bank is not responsible for any computer virus or related problems that may be associated with using the mobile device or the Internet to deliver the Service. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of Customer’s mobile device hardware or software. Bank advises Customer to scan its mobile device and software on a regular basis using a reliable computer virus detection product in order to detect and remove computer viruses.
All right, title and interest in and to any and all computer programs including without limitation, the object and source codes therefore, and any updates, upgrades, fixes, and enhancements thereto, shall be and remain the property of Bank or any third party software provider, as applicable. Customer is granted a limited non-exclusive license to use the Software Program for sole purpose of the Customer’s use of the Service. Unless otherwise expressly authorized, Customer may not copy, reproduce, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit, or create derivative works of the Software Program in any form. Customer further agrees not to reverse engineer or reverse compile any Software Program.
3. Items Deposited.Customer agrees to remotely deposit only items which are acceptable to Bank for deposit into a deposit account as described in the Deposit Agreement, which is incorporated by reference and made a part hereof. Customer agrees to only deposit checks (“Checks” or “Items”), as that term is defined in Federal Reserve Board Regulation CC (“Reg CC”), payable to Customer. Customer understands and agrees that Customer will not deposit Items that are issued by Customer or Customer’s affiliates drawn on Customer’s or affiliates’ accounts, or in violation of any law, or any Item that Customer knows or suspects to be fraudulent or not authorized by the legal owner of the account on which the check is drawn. Customer will not deposit foreign Items drawn on financial institutions that are located outside of the United States or Territories of the United States.
4. Scanning of Items and Transmission of Files.After successful implementation and installation of any software related to the use of this Service, Customer shall endorse each check to be deposited in accordance with the Procedures, capture the image of the front and back of each Item, and transmit the image file(s) to Bank. Bank will also provide Customer with a User ID and/or passwords (collectively, a “Security Code”) to access the service. Customer agrees to take reasonable steps to safeguard the confidentiality and security of the Security Code and any other proprietary property or information Bank provides to Customer in connection the Service and notify Bank immediately if Customer has any reason to believe the security or confidentiality required by this provision has been or may be breached. Bank’s security procedures are not designed for the detection of errors. Bank will not be obligated to detect errors by Customer or others, even if Bank takes certain actions from time to time to do so; provided, however, Bank shall promptly notify Customer if it has reason to believe the security or confidentiality required by this Section has been breached.
Customer may send multiple deposits to Bank or Processor throughout the day. The total dollar value of the items received on any day shall not exceed the dollar amount specified for each account in Remote Capture Location Setup Forms (“Deposit Limit”). Customer agrees not to exceed the Deposit Limit. If the total dollar value of the items exceeds the Deposit Limit, Bank may, at its option, refuse to accept the item that exceeds the Deposit Limit, or the Bank may accept and process the items. The items must be received by Bank no later than the Cut-Off time specified at the time the accounts are setup. Any item received after the Cut-Off Time shall be deemed to have been received on the business day following the business day on which the item is actually received by Bank. Bank reserves the right at any time upon reasonable notice to change the number of items that may be transmitted per day, the Deposit Limit, and the Cut-Off Time. Customer may contact Bank at any time to verify the current Deposit Limit.
5. Maintenance and Destruction of Original Item.Customer shall stamp the original Item “processed” after scanning the Item in accordance with Section 4 of this Agreement. Customer shall securely store the original Item for a period of Forty Five (45) days after Customer has received notice from Bank that the Image has been accepted. During the Forty Five (45) day period, Customer shall take appropriate security measures to ensure that only authorized personnel shall have access to the original Item, that the information contained on the Item shall not be disclosed, and that the original Item will not be duplicated, will not be scanned more than one time, and will not be deposited or negotiated in any form. Customer shall use a commercially reasonable method to destroy the original Item upon the expiration of the Forty Five (45) day period.
6. Image and MICR Quality.The deposit transmitted by Customer to Bank shall contain images of the front and the back of the Items scanned and remotely deposited by Customer (“Images”). The Images shall be of such quality that the following information can clearly be read by sight review of the Images:
(a) The amount of the Item
(b) The Payee
(c) The Drawer’s Signature
(d) The Date of the Item
(e) The Item number
(f) The information identifying the drawer and the paying bank that is preprinted on the check, including the MICR line
(g) Such other information as is placed on the Item prior to the time an image of the Item is captured, such as any required identification written on the front of the Item and any indorsements applied to the back of the Item.
Customer shall also capture and transmit to Bank the full-field MICR encoding on each Check. In accordance with the Procedures, Customer shall ensure that the following information is captured from the MICR line of the check:
(a) Routing Transit Number
(b) Account Number
(c) When encoded, Check Amount
(d) When encoded, the serial number and the process control field
7. Receipt of Image.Customer agrees that Customer shall remain liable for and that Bank shall not be accountable to Customer for an image and/or Item(s) that are not received by Bank and for an Image and or Item(s) that are intercepted or altered by an unauthorized third party. Customer agrees that Bank has no obligation to accept an Image and therefore may reject any Image of Items submitted by Customer. Bank shall promptly notify Customer of the rejection of an Image. Bank shall have no liability to Customer for rejection of an Image. Upon receipt of the Image submitted by Customer, Bank may examine the Image to ensure that Customer has followed the established Procedures. If errors exist in the data or the Images contained in the File, Bank, in its sole discretion, may reject and not accept the entire Image or Bank may elect to correct the error, accept and process the Image (“Corrected Image”). As a form of correction, Bank may credit the Account for the full amount of the deposit and make any necessary adjustments to correct the error. Bank may, at its option, also perform a risk management analysis of the Image submitted by Customer to detect potentially fraudulent Items, and, in its sole discretion, reject the Image. If after examination of the Image, Bank determines that Customer has processed and transmitted the Image appropriately and the Images meet the requirements of Section 6 of this Agreement, then Bank shall accept the Image (“Accepted Image”) for deposit to Customer’s deposit account. Upon acceptance of the Image, Bank shall electronically notify Customer of receipt and acceptance of the Image for deposit. Notwithstanding the fact that Bank has accepted the Image for deposit, any credit made to Customer’s account shall be provisional and Customer shall remain liable to Bank.
8. Provisional Credit and Availability of Funds.Upon acceptance of the Image, Bank shall grant Customer’s Account provisional credit for the total amount of the Corrected Image or the Accepted Image. The provisional credit means that the credit is made to Customer’s account subject to final payment of the Items and subject to the terms of the Deposit Agreement. For the purpose of determining availability of funds and the period of time for which funds may be held by Bank under Federal Reserve Board Regulation CC, the place of deposit shall be 1 Harbor Street, Boston, MA, 02210.
9. Laws, Rules and Regulations.Customer agrees to comply with this agreement. Customer and Bank each agree to comply with and be bound by all applicable state or federal laws, rules and regulations affecting the use of checks and drafts transactions.
10. Collection of Items.Bank, in its sole discretion, shall determine the manner in which Images shall be presented for payment to the drawee bank. Likewise, Bank, in its sole discretion, shall select the clearing agents used to collect and present the Images and Bank’s selection of the clearing agents shall be considered to have been designated by Customer. Collection of Items is also subject to the Rules and the terms of Bank’s Deposit Agreement.
11. Contingency Plan.Customer agrees that upon the request of Bank at any time (including, without limitation, if Customer is not able to capture, balance, process, or otherwise transmit an Image to Bank for any reason, including but not limited to communications, equipment or software outages, interruptions or failures), Customer will transport the physical checks and deposits to any office of Bank and deposit the original checks with Bank until such time as Bank no longer requires physical deposit of original checks at an office of Bank (such as, for example, when an outage or other interruption has been identified and resolved). The deposit of original checks at an office of Bank shall be governed by the terms and conditions contained in the Deposit Agreement and not by the terms of this Agreement.
12. Warranties.Customer represents and warrants the following to Bank:
(a) Items Deposited. Customer shall only deposit Items that are authorized by this Agreement and the Deposit Agreement.
(b) Image Quality. The Images of the Items transmitted by Customer to Bank contain an accurate representation of the front and the back of each Item and the Images comply with the requirements of Section 6 of this Agreement.
(c) Accuracy of Information. All data submitted by Customer to Bank is complete and accurate, including but not limited to data contained in the MICR line of the Check.
(d) Business Purpose Only. Customer is not a consumer and the Service shall be used for business purposes only.
(e) No Duplicates. Customer will not create duplicate Images of the Items, Customer will not transmit a duplicate Image(s) to Bank, Customer will not deposit or otherwise negotiate the original Item(s) from which the Image(s) was created and that no subsequent transferee, including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, will be asked to pay the original Item from which the Image(s) was created or a duplication (whether paper or electronic) of the Item(s).
(f) No Loss. No Subsequent transferees of the Item(s), including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, shall sustain a loss as the result of the fact that the Image was presented for payment or returned instead of the original Item.
(g) Information. All information provided by Customer to Bank is true and complete and properly reflects the business, financial condition, and principal partners, owners, or officers of Customer. Customer is not engaged or affiliated with any businesses, products or methods of selling other than those provided by Customer to Bank, except as to any such change that has been noticed to Bank in compliance with Section 17.
(h) Corporate Power. Customer and the person signing this Agreement have the power to execute and perform Customer’s obligations under this Agreement. This Agreement will not violate any law, or conflict with any other agreement to which Customer is subject.
(i) No Litigation. There is no action, suit or proceeding pending or to Customer’s knowledge threatened which, if decided adversely, would impair Customer’s ability to carry on its business substantially as now conducted or which would adversely affect Customer’s financial condition or operations.
(j) Transactions. All Items and business transactions of Customer covered by this Agreement are bona fide.
(k) Rule Compliance. Customer conducts its business and submits Items and Files in compliance with all laws and Rules.
(l) Computer Virus. Customer has a reasonable belief that the Image and Items(s) do not contain computer viruses or other harmful, intrusive, or invasive codes.
13. Return Items.
(a) Chargeback of Returned Items. If Images of Items previously deposited by Customer are dishonored and returned unpaid by the drawee bank, Customer understands and agrees that, since Customer either maintains the original Item or has destroyed the original Item in accordance with Section 5 of this Agreement, the original Item will not be returned and Bank may charge back an Image of the Item to Customer’s checking account. Bank will promptly notify Customer if Items previously deposited by Customer are dishonored and returned. Customer understands and agrees that the Image may be in the form of an electronic or paper reproduction of the original Item or a substitute check. If an Item is dishonored and returned, Bank shall provide Customer with written advice or copy of same. Customer agrees not to deposit the original Check if an Image or other debit as previously described is charged back to Customer.
(b) Special Instructions. Customer may request that Bank re-present returned Items to the drawee or to process returned Items according to instructions provided by Customer to Bank (“Special Instructions”). These Special Instructions may be given to Bank in a separate document in conjunction with or subsequent to the execution of this Agreement. Bank shall not be bound by such Special Instructions until such time as Bank has agreed in writing to accept the Special Instructions. Notwithstanding the fact that Bank has agreed to accept the Special Instructions, Bank may, in its sole discretion, disregard the Special Instructions and charge the returned Item back to the Customer account to which the Items were deposited. In the event that Customer has requested that returned Items be re-presented, in no event will Bank re-present an Item in excess of the limit established or permitted for the number of times that an Item may be re-presented by law, Rules, regulation, agreement, or the FRB’s Operating Circular. Customer may change or amend the Special Instructions by providing Bank a written request to change or amend the Special Instructions. Changes or amendments to the Special Instructions shall not become effective until acknowledged and accepted in writing by Bank. Customer hereby agrees to pay Bank the fees for processing returned Items and Special Instructions contained in Bank’s Schedule of Fees.
14. Fees and Charges.So long as this Agreement remains in effect, the Customer agrees to pay to the Bank the demand deposit account service charges established from time to time by the Bank and, in addition thereto, the fees and charges set forth on the Fee Schedules delivered from time to time to the Customer, or such other fees and charges as may be agreed upon from time to time in writing by the Customer and the Bank.
The Customer authorizes the Bank to deduct any charges for Services from the Account, even if such deduction causes an overdraft to the Account. Should the Customer fail or refuse to pay any charges under this Agreement, the Customer agrees to pay any collection costs (including reasonable attorney’s fees) which may be incurred by the Bank. The Bank shall have the right to increase or decrease charges imposed for Services rendered hereunder upon thirty (30) days prior written notice.
In addition to the Service fees, Customer agrees to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, this Agreement, and /or the software or equipment made available to Customer (excluding any income tax payable by Bank). Customer is also responsible for the costs of any communication lines and any data processing charges payable to third parties.
15. Amendments.The Bank may amend the terms of this Agreement (including the fees and charges for Services listed) at any time in its sole discretion by giving prior written notice to Customer. If required by this Agreement or by applicable law, notice will be given for the required applicable number of days in advance of any such amendments. Customer’s continued use of the Services shall constitute Customer’s agreement to such amendment. No amendments requested by the Customer shall be effective unless received in writing by Bank and agreed to by the Bank in writing.
16. Confirmation: Account Reconciliation.Bank will provide notice of receipt of deposits to Customer’s Account with Bank on Customer’s periodic Account statement. Customer is responsible for detecting and reporting to Bank any discrepancy between Customer’s records and the records Bank provides to Customer. If Customer does not detect and notify Bank of such a discrepancy within thirty (30) days of Customer’s receipt of any terminal printout, mailed report and periodic statement (“Report”), whichever is received first, then such transactions shall be considered correct and Customer shall be precluded from asserting such error or discrepancy against Bank.
17. Update Notice.Customer shall provide written notice to Bank of any changes to the information provided by Customer to Bank, including but not limited to: additional locations, any change in business, any new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and method of conducting sales. Such notice must be received by Bank within thirty (30) days of the change. Further, upon Bank’s request, Customer shall provide updated information within thirty (30) of such request. Bank retains the right to (i) review Customer’s Item and business activity from time to time to confirm customer is conducting business as stated by Customer at the time of the execution of this Agreement, and (ii) re-price or terminate Bank’s services based on changes to the facts previously stated by Customer.
18. Bank’s Duties.The Bank’s duties and responsibilities are limited to those described in this Agreement, related agreements, and in deposit agreements between the Customer and the Bank. The Bank will use ordinary care in performing its responsibilities under this Agreement.
19. Bank’s Liability.Customer agrees to monitor its account balances and charges, to promptly notify the Bank if any Report it receives is grossly greater or less than Customer’s expectation of the information, and to refrain from acting on information it has reason to believe is erroneous. Consequently, the Bank’s and, if the Services of a third party provider (the third party) are utilized in the provision of any Service, the third party’s sole liability to the Customer shall be limited to the correction of any errors made. Bank shall not be responsible for suspension of performance of all its obligations, responsibilities and covenants hereunder, whether expressed or implied, if at any time, or from time to time, compliance therewith should be prevented or hindered by, or be in conflict with, any federal or state law, regulation or rule, the order of any court of competent jurisdiction, any act of God or of the public enemy, war, epidemic, strike, civil unrest, or work stoppages of the U. S. Postal Service and commercial carrier(s), or electric power disruption or shortage, telecommunications failure or computer failures; acts, omissions or errors of any carrier and/or agent operating between Customer and Bank and Federal Reserve Bank or other agency utilized to exercise transfers, or recipients of transferred funds; any incorrect, unauthorized or fraudulent use or other fraud by any person other than Bank’s employees; or, without limiting the generality of the foregoing, any other cause or circumstance beyond Bank’s control or other conditions or circumstances not wholly controlled by the Bank and which would prohibit substantial performance under this Agreement.
20. Internet Disclaimer.For any services described in the Agreement utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank’s network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, Customer’s ability to connect to the Internet, or Bank’s ability to connect on the Internet on Customer’s behalf.
21. Customer Liability.Except as provided elsewhere in this Agreement, Customer will be liable to Bank, for any loss, damage or claim arising out of Customer’s transmission of incorrect data to Bank or Customer’s failure to perform its obligation under this Agreement for use of the Service.
22. Limit of Liability.
(a) CUSTOMER AGREES THAT IN NO EVENT SHALL BANK OR BANK’S SERVICE PROVIDERS BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, LOSSES OR INJURIES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR COST OF COVER) ARISING OUT OF THE USE BY CUSTOMER OF ANY SERVICE OR THE FAILURE OF BANK OR ITS SERVICE PROVIDERS TO PROPERLY PROCESS AND COMPLETE TRANSACTIONS THEREUNDER, EVEN IF BANK OR BANK’S SERVICE PROVIDERS HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR INJURIES.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE OF THE SERVICES SHALL BE AT CUSTOMER’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY BANK ON AN “AS IS” BASIS.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO CUSTOMER OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. CUSTOMER AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO.
(d) TO THE FULLEST EXTENT ALLOWED BY LAW, AND SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION, BANK’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM BANK’S FAILURE TO EXERCISE ORDINARY CARE OR TO ACT IN GOOD FAITH.
(e) BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO CUSTOMER AS TO ANY COMPUTER HARDWARE, SOFTWARE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, CUSTOMER’S COMPUTER SYSTEMS OR RELATED EQUIPMENT, CUSTOMER’S SOFTWARE, OR CUSTOMER’S INTERNET SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT CUSTOMER USES, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING (BUT NOT LIMITED TO) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(f) BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF CUSTOMER’S COMPUTER HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY COMPUTER SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM CUSTOMER TO BANK OR FROM BANK TO CUSTOMER. BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING CUSTOMER OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF CUSTOMER’S COMPUTER HARDWARE OR SOFTWARE.
23. Third Parties; Maintenance.
(a) Services from Others.Customer may be using special equipment, services or software provided by a third party to assist it in processing Items and Files hereunder (“Third Party”). Customer (i) agrees that any Third Party is acting as Customer’s agent in the delivery of Items and Files to Bank, and (ii) agrees to assume full responsibility and liability for any failure of that Third Party to comply with the laws, Rules or this Agreement. Bank will not be liable for any losses or additional costs incurred by Customer as a result of any error by a Third Party or a malfunction of equipment provided by a Third Party. Customer shall provide at least ten (10) days advance written notice to Bank in the event it uses any such Third Party. Customer is solely responsible for maintaining compliance with the requirements of any Third Party, including obtaining any software updates. Bank shall not have any responsibility for any Item or File handled by a Third Party until that point in time when Bank accepts and approves an Item or File from such Third Party for processing.
(b) Equipment Maintenance. Customer shall be ultimately responsible for obtaining and properly maintaining its equipment and system requirements, including computer equipment, Internet connectivity, mobile devices, scanning terminals (unless contracted with Bank) and any other equipment or items necessary as a prerequisite to receive Services. Bank shall not be liable to Customer, in any manner whatsoever, for any type of errors, losses, damages or other claims related to Customer’s failure to do so.
24. Use of Trademarks. Customer may not use Bank’s name or trademarks without the express written consent of Bank, as the case may be. If Customer is permitted to use any of Bank’s promotional materials, Customer will not indicate, directly or indirectly, that Bank endorses, or is connected in any way with, any of Customer’s goods or services.
25. Financial Information. Bank may from time to time request information from Customer in order to evaluate a continuation of the services to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement. Customer agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank. Without limiting the generality of Bank’s right to terminate the Service as provided elsewhere in this Agreement, if Customer refuses to provide the requested financial information, or if Bank concludes in its sole discretion that the credit risk of Customer is unacceptable, Bank may terminate the Service according to the provisions hereof. Customer authorizes Bank to investigate or reinvestigate at any time any information provided by Customer in connection with this Agreement or any Services and to request reports from credit bureaus and reporting agencies for such purpose.
26. Confidential Information and Proprietary Right In Data. All information of a business nature relating to the assets, liabilities or other business affairs disclosed to the Bank by the Customer and the Customer’s customers in connection with this Agreement is confidential. Bank shall not, without the express written consent of the Customer, disclose or permit access to any such information by any person, firm, corporation or governmental entity and Bank shall cause its officers, employees, and agents to take such action as shall be necessary or advisable, to preserve and protect the confidentiality of disclosing such information to persons required to have access thereto for the performance of this Agreement, or to any other party to which the Bank may be required by law to report such information. Customer agrees to hold confidential and to use only in connection with the Service provided under this Agreement all information furnished to Customer by Bank or by third parties from whom Bank has secured the right to use the Service, including, but not limited to, Bank’s product and service pricing structure, system design, programming techniques or other unique techniques, except to the extent required to enforce its rights under this Agreement. In addition, should Customer at any time receive or acquire any information relating to another Customer of the Bank, Customer shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for its own benefit. Bank and Customer’s obligations and agreements under this paragraph shall not apply to any information supplied that: was known to either party prior to the disclosure by the other, or is or becomes generally available to the public other than by breach of this Agreement, or otherwise becomes lawfully available on a non-confidential basis from a third party who is not under an obligation of confidence to either party. Notwithstanding anything to the contrary contained herein, it is authorized and agreed by the parties hereto that the performance of said Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Board of Directors of the Federal Deposit Insurance Corporation, and/or other Federal or State regulatory agencies and the Customer agrees to the release of the Customer’s reports, information, assurances, or other data as may be required by them under applicable laws and regulations. Customer agrees that any specifications or programs developed by the Bank in connection with this Agreement or supplied or made available to Customer by Bank are the exclusive property of Bank, its agents, suppliers, or contractors, and further agrees that such material shall not be copied or used in any manner or for any purpose without the express written consent of Bank, except as expressly provided elsewhere in this Agreement. This clause shall survive the termination of the Agreement.
27. Arbitration and Waiver of Jury Trial. Customer and Bank agree that the transactions processed under this Agreement involves “commerce” under the Federal Arbitration Act (“FAA”). ANY CONTROVERSY OR CLAIM BETWEEN CUSTOMER, BANK, OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO THE SERVICE PROVIDED UNDER THIS AGREEMENT OR ANY DISPUTE UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY “CLAIM”), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules (“the Arbitration Rules”). IF A CLAIM IS SUBMITTED TO ARBITRATION,(A) THE ARBITRATION WILL BE CONDUCTED IN BOSTON, MASSACHUSETTS; (B) CUSTOMER WILL NOT HAVE THE RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL; (C) CUSTOMER WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE ARBITRATION RULES; (D) CUSTOMER WILL NOT HAVE THE RIGHT TO HAVE ANY CLAIM ARBITRATED AS A CLASS ACTION UNDER THE ARBITRATION RULES OR UNDER ANY OTHER RULES OF CIVIL PROCEDURE; (E) THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING WITH LIMITED RIGHTS TO APPEAL; (F) THIS AGREEMENT SUPERSEDES ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN CUSTOMER AND BANK. This agreement to arbitrate disputes will survive the closing of customer’s account and the termination this Agreement or any Service Agreement.
28. Attorneys’ Fees.In the event of any judicial or other adversarial proceeding between the parties concerning this Agreement, each party shall be responsible for its own attorneys’ fees.
29. Successors. This Agreement and all the terms and provisions herein shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns.
30. Assignment. Customer may not assign this Agreement without the prior written consent of the Bank and any attempted assignment by Customer made without such consent shall be null and void. Bank may assign this Agreement or any part of it at any time without notice to or the consent of Customer.
31. No Third Party Beneficiaries. This Agreement shall not be construed to confer any rights or remedies upon any person not a party to this Agreement, whether as a third party beneficiary or otherwise, against Customer or Bank, their respective successors, assigns, and affiliates.
32. Captions and Headings. The captions and headings contained in this Agreement are for convenience of reference only and shall not be used to limit the applicability or meaning of any provisions of this Agreement.
33. Entire Agreement. The terms of the Customer’s Deposit Agreement(s) with the Bank are incorporated by reference and made a part of this Agreement. In the event of any inconsistency between such agreement(s) and this Agreement, then this Agreement shall control to the extent necessary. The parties agree that this Agreement is the entire statement of the terms and conditions which apply to the subject matter hereof. This Agreement supersedes any prior agreements between the parties relating to the Service.
34. Waiver. No delay or failure on the part of the parties in exercising any of their respective rights under this Agreement shall constitute a waiver of such rights and no exercise of any remedy hereunder by any party shall constitute a waiver of its right to exercise any other remedy hereunder. Except for changes made in accordance with this Agreement, no deviation, whether intentional or unintentional, will constitute an amendment of this Agreement or will constitute a waiver of any right or duty of either party.
35. Severability. In the event any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall be binding and enforceable as if any such invalid, illegal or unenforceable provision had never been contained herein.
36. Construction. This Agreement is an agreement between parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by this Agreement, is entered into by both parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties, or the domicile of any party.
37. Termination. Either party may terminate this Agreement at any time. Such termination shall be effective immediately following receipt of written notice of such termination. The Bank shall be entitled to rely on any written notice believed by it in good faith to be signed by Customer. Bank reserves the right to terminate this Agreement immediately upon providing written notice of such termination to Customer.
Bank’s election to terminate this Agreement is in addition to other remedies that may be available to the Bank, and will not affect any obligations Customer may have to Bank arising prior to such termination. Any reinstatement of Services under this Agreement will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank.
Upon termination, any property or rights of the other party, tangible or intangible, shall be returned to it within thirty (30) days after the later to occur of (i) termination of the Agreement, or (ii) the last date that Bank receives any such property or rights.
Upon termination of this Agreement, (i) Customer will promptly pay to Bank all sums due or to become due under this Agreement, (ii) then and thereafter, Customer shall have no further right to make use of the Service or Software which may have been provided in connection with any Service.
Bank and Customer agree that Sections 12, 13, 21, 22, 24, 26, 27, 28, 30, 31, 34, 36, and 38 shall survive the termination of this Agreement.
38. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts.
39. Notices. Any notice required hereunder shall be given by first class U.S. mail, postage prepaid, by receipted hand delivery, electronically or by any other means agreed upon by both parties to the Bank at the address set forth below and to the Customer (if sent by mail) at the address set forth below. If any notice instructions are given, the provisions of such shall govern the method and location for giving notice.