This Mobile Deposit Service Agreement ("Agreement") is entered into by and between The Bank of Southside Virginia, herein referred to as “Bank”, and the Merchant named above, herein referred to as “Merchant”, subject to the terms and conditions as follows:
1. DEFINITIONS: The following terms used in this Agreement shall have the meaning specified below:
- “Check 21”: The Check Clearing for the 21st Century Act and all regulations pertaining to said Act.
- “Check 21 Transaction”: An electronic payment transaction utilizing an Image Replacement Document (“IRD”) permitted by Check 21.
- “Entry”: A transaction submitted by Merchant to Processor or Bank for processing.“Equipment”: The mobile device and related application.
- “Image”: The image that results from a picture taken by mobile device of a paper check by Merchant.
- “Merchant Account”: A non-interest bearing commercial demand deposit bank account which Merchant has set up at Bank to settle financial payment transactions under this Agreement.
- “Processor”: a Third-party service provider which has a contractual relationship with Bank to provide Services to Merchant.
- “Reseller”: A party authorized by Processor to sell and deliver the Services to Merchant; for purposes of this Agreement Reseller refers to Bank.
- “Services”: The Check 21 processing services provided by Bank as Reseller for Processor to Merchant under this Agreement.
2. SERVICE: Bank agrees to provide the Services to Merchant through its role as Reseller of Processor’s Services, and both parties agree to abide by the provisions as set forth in this Agreement.
3. ACCESS FEES: A monthly access fee will be assessed to the Merchant, pursuant to Schedule A attached hereto, as compensation to Bank for access to the Service through Bank’s remote deposit service vendor, and Bank’s merchant support.
4. OTHER COSTS: Other Fees may be assessed pursuant to Schedule A. Merchant will be responsible for all telecommunications-related costs as well as the costs of any equipment or supplies necessary to access the Services. Bank will not be obligated to supply any special equipment. Merchant is responsible for supplying access to the Internet and assumes all costs associated with Internet services.
5. PRICING: The Fee Schedule is set forth on Schedule A hereto and made a part hereof. Bank agrees to notify Merchant at least (30) days in advance of any increase in fees, barring any increases in governmental or access fees charged to Bank which may immediately be passed onto Merchant at cost without notice.
6. PAYMENT: Charges applicable to the Services will be assessed in the form of charges posted to Merchant’s Account or through account analysis fees along with Bank’s current commercial service charge schedule currently in effect.
7. PROCESSING DEADLINE: Bank, as “Originating Depository Financial Institution,” has a deadline of 3:00 p.m. for receipt of images from Merchant for same-day deposit credit, subject to Section 10. Processing takes place on banking business days only and will not take place on weekends or on banking holidays as determined by the Federal Reserve.
On any day on which Bank is scheduled to close early (such as the day before a Bank holiday) or closes early due to circumstances beyond Bank’s control, files will be transmitted and processed the next business day. In the event Bank does not open for business on a normal business day due to circumstances beyond Bank’s control, files will be transmitted and processed the next business day.
8. LIMITS: Bank reserves the right to set limits on number of items per batch, maximum dollar amount per batch; number of items per transmission; maximum dollar amount per transmission; number of batches or items transmitted per day; maximum dollar amount of batches or transmissions per day; number of batches or items transmitted in a one or two week period; and maximum dollar amount of batches or transmissions in a one or two week period.
9. HARDWARE AND SOFTWARE REQUIREMENTS: In order to use the Service, you must have a Mobile Device that is acceptable to us and a wireless plan from a compatible mobile wireless provider. You must also use the operating system(s) and software that satisfies all technical specification and other requirements that we and/or our service provider(s) establish and specify. We and/or our service provider(s) may change these specifications and/or requirements from time to time.
We are not responsible for providing, maintaining or servicing your Mobile Device or any other equipment for you. You agree that you will perform, or cause to be performed by properly trained personnel, all vendor recommended maintenance, repairs, upgrades and replacements.
Unless otherwise provided in the Agreement, you are solely responsible, at your own expense, for purchasing, installing, operating, testing and maintaining all hardware and software necessary to use the Service. You must install and test your Mobile Device, your system, and any other required hardware and software before you make your first deposit through the Service. We are not responsible for any third party software that you may need to use the Service. You accept any such software “as is” and subject to the terms and conditions of the software agreement that you enter into directly with the third party software provider at the time of download and installation.
We are not responsible for, and you release us from, any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using the Service, email or the Internet. You agree 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.
10. DEPOSITED ITEMS: All checks deposited through the Service will be deposited under the provisions of the current Merchant deposit agreement with Bank. Funds deposited through the Service are available in compliance with Bank’s then current funds availability policy as would be applicable to the related paper check.
Merchant agrees to examine periodic statements and report any errors or problems regarding the Services in accordance with rules set forth under Merchant’s deposit agreement with Bank. In addition, Merchant agrees to comply with the provisions of Check 21 for all checks deposited where applicable. Merchant agrees that original checks will not be deposited through the Services more than once and the original checks will be securely stored then destroyed after 45 business days and within 90 business days from the date of deposit unless otherwise agreed to in writing. Merchant also agrees to obtain all required approvals for the processing of deposited items.
Deposit of an item shall be considered made at such time as the Bank is in actual receipt of an image of said item that complies with the image legibility requirements set forth in Subpart D to the Federal Reserve Board’s Regulation CC, as amended, as well as the applicable image quality requirements of such other regulations and clearing house association rules to which the Bank is subject.
Merchant agrees to review and validate the accuracy of the check data captured including the amount of the check and the legibility of the Image through the Services. Merchant agrees to deposit only checks drawn on United States financial institutions through the Services. Merchant agrees to indemnify and hold harmless Bank for any losses suffered by Bank as a result of any checks deposited through the Services where the original paper checks are also processed either through an error by the Merchant or through the illegal actions of the Merchant or its employees. Bank will not be liable for any failures or alterations in transmission. Bank reserves the right to reject remote deposits for any reason.
Merchant agrees to handle Customers’ returned items or complaints in a timely manner and agrees that the Bank will not be liable for any loss incurred as a result of a returned item or Customer complaint.
Credit to Merchant Account for mobile deposits is provisional only until collection of items is final. Merchant shall be solely liable and responsible for all damages, losses, expenses and claims arising from any of the following:
- Duplication of Images transmitted by Merchant to Processor through the Services;
- Alteration of scanned Images not caused by Processor Services or Software
- Deposit of checks on account with insufficient funds, counterfeit checks, fraudulent checks, or checks bearing unauthorized or forged signatures or endorsements;
- Acts of fraud, negligence or willful misconduct committed by employees of Merchant in depositing checks using the Services;
- Hardware failure not caused by Processor Services or Software; or
- Merchant’s failure to properly store or dispose of original checks once the scanned Image has been captured.
11. MOBILE DEPOSIT SECURITY; DATA SECURITY: You understand that Check images captured using your Mobile Device are stored on the Mobile Device only until the associated deposit has been successfully submitted. You agree to promptly complete each deposit. In the event that you are unable to promptly complete your deposit, you agree to ensure that your Mobile Device remains securely in your possession until the deposit has been completed or to delete the associated images from the application.
It is your responsibility to notify us immediately by telephone at 800-619-5211 with written confirmation if you learn of any loss or theft of original Checks. You will ensure the safety and integrity of original Checks from the time of receipt until the time of destruction.
You agree to protect the confidentiality of your account and account number, your data, and your personal identification number. Notwithstanding our efforts to ensure that the Service is secure, you acknowledge that the Internet is inherently insecure and that all data transfers, including email, occur openly on the Internet and potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the Service or email transmitted to and from us, will not be monitored or read by others.
12. CONFIDENTIALITY: Merchant, its employees, vendors and clients each recognize, acknowledge, and hereby agree that all information or data provided through the Services will be treated as confidential and proprietary and shall not be used or disclosed, in whole or part, to any person, firm, corporation, association, or other entity, except as provided for in this Agreement or as required by law. Merchant understands that the use of Passwords and the Services instructions is confidential and agrees to assume all risks of accidental disclosure or inadvertent use by any party whatsoever, whether such disclosure or use are on account of Merchant’s negligence or are deliberate acts. Merchant shall change its Passwords periodically and whenever anyone who has had access to a Password is no longer employed or authorized by it to use the Services. Bank may require Merchant to change its Passwords at any time. Bank may deny access to the Services without prior notice if it is unable to confirm (to its satisfaction) any person’s authority to access the service or if Bank believes such action is necessary for security reasons.
13. RIGHT OF SETOFF: Merchant hereby acknowledges and agrees that Bank shall have a right of setoff against any and all accounts, credits, money, securities, or other property now or hereafter on deposit with, held by, or in the possession of the Bank to the credit or for the account of the Merchant, without notice to or consent by the Merchant, for any and all fees owed Bank by Merchant under this Agreement.
14. FINANCIAL INFORMATION: Merchant agrees to provide Bank with information, including financial information, pertinent to, and access to its records regarding Services upon request. Merchant agrees that the Bank may investigate the character and creditworthiness of Merchant, including Merchant’s officers, directors and, where deemed necessary, its employees. Bank may investigate the nature and operation of Merchant’s business.
15. THIRD PARTY SERVICES: Merchant acknowledges that, in providing the Services hereunder, Bank may utilize and rely upon certain Processors to provide database storage, database access, switching and other data communications services to Bank. The Merchant further acknowledges and agrees that the Merchant’s rights under this Agreement shall be solely and exclusively against Bank, and the Merchant shall have no right or recourse against any Processor hereunder whatsoever, and hereby waives any and all such rights or recourse, directly or indirectly, against any Processor.
16. REMEDIES: The remedies set forth in this Agreement constitute the sole and exclusive remedies for the Merchant at law and in equity. Bank’s maximum liability for damages to Merchant, from any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, will be limited to the lesser of (1) the total amount payable for the Services during the 12 months before the cause of action arose, or (2) the damages incurred. In no event will Bank be liable for any damages caused by Merchant’s failure to perform Merchant’s responsibilities, or for any indirect or consequential damages, including, but limited to, loss of profits or anticipated savings, or for any claim made against Merchant by an employer, employee, agent, or any other party.
17. ASSIGNMENT: This Agreement shall not be assigned or delegated by Merchant to any other party without the prior written consent of Bank, which shall not be unreasonably withheld.
18. INDEMNIFICATION: Each party shall (1) indemnify the other party and all its Processors for any damage or claim, including, but not limited to, reasonable attorneys’ fees and court costs, arising out of a cause of action whereby a party, its agents, employees, or subcontractors, are either directly or indirectly responsible for such action, be it error or omission, under this Agreement, and (2) notify anyone asserting such claims in writing that such other party, and all its Processors, have no liability for such actions.
This indemnification provision shall survive the termination of this Agreement.
19. FORCE MAJEURE: Bank shall not be liable for delays in performance under this Agreement or for failure to perform hereunder by reason of any third party’s failure to provide Bank with the data necessary for complete and proper transmission of the Service. In the event that Bank shall be delayed, hindered in or prevented from the performance of any work, service of other acts required of Bank under this Agreement due to strikes, walk-outs, telecommunications equipment and power failures, government restrictions, civil commotion, riots, acts of terrorism, acts of war, fire, or acts of God, all of such activities being beyond the control of Bank, then performances of such work, service, or other acts shall be excused for a period of such delay and the period for the performance of such work, services, or other acts shall be extended for a period equivalent to the period of such delay.
20. YOUR DUTY TO REPORT ERRORS: Bank will provide you with periodic statements that will identify the deposits that you make through the Service. In addition, you may access the Bank’s NetTeller service for information about your deposits, return items, deposit adjustments, Checks and other transactions on your accounts. You agree that it is your responsibility to review all such information that the Bank makes available to you in a timely manner to verify that deposits made through the Service have been received and accepted by the Bank and are accurate. Receipt of a Check by the Bank through the Service does not constitute an acknowledgement by the Bank that the Check is error-free or that we will be liable for the Check.
You agree to notify us promptly of any errors, omissions, or discrepancies in a deposit within the time periods established in your Bank Account Agreement. You may notify us by emailing us at firstname.lastname@example.org or by telephoning us at 800-619-5211. You agree to cooperate in any investigation by the Bank of any unsuccessful or lost transmission.
21. COMPLIANCE WITH LAW; PROHIBITED ACTIVITIES: You agree to use the Service for lawful purposes and in compliance with all applicable laws, rules and regulations.
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: (1) would result in your being or becoming a money service business that regularly cashes third party checks, sells money orders, or handles wire transfers or other financial services for third parties; (2) would result in your accepting restricted transactions in connection with another person in unlawful Internet gambling; (3) would result in the Bank being used as a conduit for money laundering or other illicit purposes; or (4) would directly or indirectly result in any activity or use of the Service that may be illegal or fraudulent.
22. GENERAL: Bank reserves the right, with the appropriate governmental approval, if applicable, to change the Services as it may deem necessary or desirable. Bank reserves the right, without penalty or liability, to withdraw or discontinue any Services from a Merchant who causes a system to malfunction or from a Merchant who fails to make changes which Bank determines, in its sole discretion, would prevent future malfunctions. Bank reserves the right to service, repair, exchange, test, and perform reasonable and occasional quality assurance exams on all Equipment, if deemed necessary by Bank, both on and off the Merchant’s premise(s) throughout the duration of the Agreement. Such exams shall not exceed a frequency of one (1) per month unless mutually agreed upon by both parties. Bank reserves the right to process test system inquiries on Merchant’s behalf and at Merchant’s expense in order to monitor network performance and quality assurance. After the initial installation of the Equipment, any relocation thereafter must be approved and/or performed be an authorized Bank representative. Failure to comply will constitute grounds for termination of this Agreement and immediate repossession of all Equipment owned by Bank and provided to Merchant.
Merchant agrees to notify the Bank immediately when there is a change in ownership of the Merchant’s business or when there is a change in management or a significant change in staffing.
No action, regardless of form, arising out of this Agreement may be brought by either party hereto more than one year after the event giving rise to the cause of action except in the case of nonpayment, in which the applicable statute of limitation for collection actions will be applicable.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
a. How to Cancel the Service – If you wish to cancel the Service, you must notify the Bank, and you must also discontinue using the Service
at that time. You may notify us by emailing us at email@example.com or by telephoning us at 800-619-5211.
b. Closing your Bank Accounts – If you close all of your Bank accounts, you must notify the Bank’s Electronic Banking Department to cancel the Service and you must terminate your use of the Service at that time.
c. Bank Termination of Use or Access – We will not, in any way, be obligated to grant you use of or access to the Service if: (1) such use or access is not in accordance with any term or condition applicable to the Service; (2) such use or access is not permitted by any state or federal law or regulation; (3) the Bank has reasonable cause to believe that such use or access may not be authorized by you or any third party whose authorization the Bank believes is necessary for such us or access; or (4) the Bank has reasonable cause to deny such use or access for your or our protection.
d. Bank Termination of the Agreement – The Bank reserves the right in its sole discretion at any time to terminate this Agreement and therefore to limit or terminate your use of or access to the Service at any time, with or without cause and without prior notice. The Bank will not have liability to you for any losses or damages you may suffer or incur as a result of any such limitation or termination.
Any termination will not affect our obligations arising prior to termination, such as the obligation to process any Checks (including returned Checks) that were in the process of being transmitted or collected prior to the termination date. Termination will not affect your liability or obligations under this Agreement for transactions that have been processed through the Service for you. You will remain responsible for all outstanding fees and charges incurred prior to the date of termination.
In addition, you will keep your account(s) at the Bank open, and you will maintain funds in such account(s) in amounts and for a period of time as we determine in our sole discretion to cover any outstanding Checks and your obligations for returns of Checks, warranty claims, fees and other obligations. If any such liabilities exceed the amount in the applicable account, we may charge such excess against any of your other accounts at the Bank and you will pay us any amount remaining unpaid immediately upon our demand. You will also continue to retain original Checks and forward Checks to the Bank on our request in accordance with the provisions of this Agreement.
24. ENTIRE AGREEMENT: This Agreement represents the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes all prior oral and written communications between the parties. No provision of this Agreement shall be modified unless in writing and signed by an authorized representative of Bank and Merchant.
If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remaining provisions shall continue to be of full force and effect.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia. WITNESS the following signatures and seals
Mobile Deposit Service – Bank agrees to process those items appropriately captured and transmitted by Merchant to Bank for the purpose of clearing the items for credit to the Merchant’s Account at Bank. The items will be transmitted by Bank through the Federal Reserve System via the Check 21 method.
Monthly Access Fee – $10/month for the first business account; $5/month for each additional business account
The terms, conditions, and fees in this Agreement are in addition to any deposit account agreements you have with BSV, including, but not limited to, your signature card, BSV Schedule of Fees, BSV’s Electronic Fund Transfer Disclosure, and any change of terms and notices.