DEPOSIT ACCOUNT AGREEMENT
PLEASE READ THIS DOCUMENT CAREFULLY
1. GENERAL MATTERS: The Deposit Account Agreement governing this Account consists of these terms and all other documents or disclosures issued in connection with opening this Account, including, but not limited to, Texas Multi-party Account Disclosure, Truth in Savings Disclosure and Fee Schedule, Regulation E/Electronic Funds Transfer Disclosure, Funds Availability Policy, Online Banking Agreement, and Privacy Policy (collectively the “Agreement”).
“Account” means a deposit account or accounts you open with BankMD.
“Account Owner,” “you,” “your,” and “yours,” mean the Account holder and owner or owners of the Account. We may, in our discretion, limit the number of account owners for certain account types.
“Authorized Signer” means an Account Owner, a convenience signer, or any other person authorized to make deposits or withdrawals or execute any other transaction on this account. Authorized Signers may, in our discretion, not be allowed for all account types. “Bank MD”, “the Bank” “we,” “our”, or “us” shall mean the BankMD, a Division of TransPecos Banks, SSB.
“P.I.N.” means Personal Identification Number, or a number or code which may be used to identify an Account Owner for purposes of authorizing the Bank Account Card transactions.
You understand that you should read these terms, together with the other disclosures and documents constituting this Agreement carefully. Please review this Agreement and retain it in a safe place should you need to refer to it in the future.
2. SCOPE OF AGREEMENT AND CONFLICT: This Agreement and Bank’s schedule of fees and service charges as outlined in the Truth in Savings Disclosure and Fee Schedule may be supplemented by additional service agreements that you enter into with the Bank, such as agreements regarding online banking, mobile banking, remote deposits or other services. Wherever possible, both this Agreement and the additional service agreement shall govern. In the event of a conflict between this Agreement and a service agreement, the terms and conditions of the service agreement shall govern with respect to the subject matter of the service agreement, but only to the extent there is a conflict. Account types for which services are only provided electronically do not allow for cashing of checks, cash deposits, or in person visits to branch offices.
3. VERIFICATION OF IDENTITY: IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents.
We may require any person seeking to conduct a banking transaction to present such identifying documentation and information as is acceptable to the Bank in its sole discretion before conducting the transaction. For example, and not by way of limitation, we may require a person to present a driver’s license or passport, provide a username and password, provide a token, provide answers to questions regarding the Customer or his or her accounts, or pass a biometric identification process, such as providing a fingerprint, fingerprint scan, photo for facial recognition, or other biometric test. We can secure further identification by other in accordance with applicable law or technological means. If the person does not provide or permit such identification, we can decline to cash the item and you will not claim that we wrongfully dishonored it.
4. FEES AND SERVICE CHARGES: You agree to pay, and this Account is subject to, various fees and service charges, including without limitation, fees listed on the Bank’s
Truth in Savings Disclosure and Fee Schedule. We may update the Fee Schedule from time to time at our discretion and will provide notice of changes to you. Subject to federal laws regarding overdraft fees, you agree that all ATM, debit card, and other electronic transactions are subject to all published fees, service charges and interest charges including those that result from insufficient funds transactions, overdrafts and advances against uncollected funds.
In the event a garnishment, attachment, levy, administrative order, subpoena, summons, or other legal or administrative process is initiated relating in any way to this Account, the Bank may take any action necessary to review and respond to such legal or administrative process. The Bank may charge reasonable fees for reviewing, investigating, and responding to any such legal or administrative process. Fees may include, but are not limited to, research charges, copying or electronic reproduction charges, attorney’s fees, and other costs which may be allowed by law. Unless prohibited by law, all expenses incurred by the Bank as a result of any legal, regulatory or administrative proceeding in any way affecting this Account, including but not limited to court costs, any arbitration costs and fees, and reasonable attorney’s fees, may be charged to this Account or billed directly to you.
All of the fees and service charges described herein may be deducted from and/or charged to this Account and the Bank shall not be liable for dishonoring checks, drafts, notes, acceptances, withdrawal and/or transfer documents, and/or other instruments or items, or for the failure to make automatic debits to this Account because of insufficient available funds in this Account resulting from (i) the charging of any service charges, fees or interest, (ii) any administrative hold due to a direct debit, withdrawal, or authorization, or (iii) any withdrawal or administrative hold due to any electronic or wire transfer, the receipt of any notice of return, or for any other reasonable cause.
5. MODIFICATION OF TERMS: Subject to state and federal law, the Bank may unilaterally amend this Agreement by sending written notice to you 30 days prior to the effective date of the amendment. The Bank may likewise amend the Truth in Savings Disclosure and Fee Schedule. For purposes of fees applicable to this Account, the effective date of a change to the Fee Schedule will be 30 days after the Bank sends you written notice of the change.
If you or your agent requests that the Bank hold notices or statements that would otherwise be sent to you, you and each Authorized Signer agree that any and all notices of amendment are made available to you and are deemed to have been sent to you as of the date when the notice of amendment would have otherwise been sent to you.
6. CONVERSION OF ACCOUNT: We reserve the right to convert the Account to another type of account offered by the Bank pursuant to the modification of terms provisions above.
7. CLASSIFICATION OF CHECKING ACCOUNTS: For regulatory accounting purposes, the Bank may, in its discretion, classify checking accounts as two sub-accounts: a transaction sub-account and a non-transaction sub-account. This classification will have no effect on the balance, the ability to use such account, the amount and rate of interest you receive, the service charges, or the Account statement. The Bank may transfer funds between these sub-accounts. The Bank will record the sub-accounts and transfer between them on the Bank’s internal accounting records only. All other terms, definitions and rules governing this Account remain in effect.
8. RATE INFORMATION: All interest-bearing accounts at the Bank, other than time deposits, accrue interest at a variable rate of interest. Interest rates are established from time to time by the Bank in its sole and absolute discretion and are subject to change without notice to you.
11. CLOSING THE ACCOUNT: Except as expressly limited in this Agreement, either you or the Bank may close this Account without notice at any time for any reason. For savings or interest-bearing checking accounts, the Bank may, in its discretion, require you to give the Bank seven (7) days advance notice prior to closing your savings or interest-bearing checking account or withdrawing all of your funds.
If the Bank closes this Account, the Bank may notify you of the effective date on which this Account will be, or was, closed. The Bank may remit to you any positive collected balance remaining in this Account within a reasonable time of the effective date of the closing of this Account. Prior to remitting any funds from the Account, the Bank may deduct from the Account any amounts you owe to the Bank, including, but not limited to, fees, service charges, accrued interest due and owed, any amount subject to the Bank’s right to setoff and any amount subject to a security interest belonging to the Bank and any amount due and owed for any of your other accounts or loans held by the Bank. If you or the Bank closes your Account before accrued interest has been credited to your account, you will not receive the accrued interest.
If the Bank closes your Account, the Bank may mail a check to you at the address that the Bank currently has associated with you in its records. The Bank may either return deposits, checks and other items that it has received after your Account is closed or, without being liable to you. This provision will survive the termination of this Agreement.
12. COMMUNICATION BETWEEN DEPOSITOR & BANK; THIRD PARTIES & BANK INFORMATION: You and each Authorized Signer authorize the Bank to obtain references and to verify any information regarding you or any Authorized Signer. You and each Authorized Signer further represent and warrant to the Bank that the information provided herein and all of the documents and information you, Authorized Signers, or your representatives have provided to the Bank are true and correct. The Bank may share information as more particularly described in the Bank’s privacy policy, which has been separately provided to you. The Bank may disclose information about Uniform Transfer to Minors Act Accounts to the minor and the minor’s guardian or representative. The custodian agrees to keep the Bank informed of the location of the minor.
12.1 CREDIT REPORTS: You and each authorized signer authorize the Bank to obtain reports about you periodically from organizations such as credit reporting agencies, check reporting services, and other consumer reporting entities. You and each Authorized Signer also authorize the Bank to provide information to consumer reporting agencies regarding your Account and your relationship with the Bank.
12.2 NOTICE OF NEGATIVE INFORMATION: Federal law requires the Bank to provide the following notice to customers before any “negative information” may be furnished to a nationwide consumer reporting agency: “Negative information” includes information concerning delinquencies, overdrafts, or any form of default.” After providing this notice, additional negative information may be submitted without providing another notice.
The Bank may report information about your Account to credit bureaus. Late payments, missed payments or other defaults on your Account may be reflected in your credit report.
12.3 RECORDING: The Bank may, but is not required to, record your communications with the Bank. You give the Bank permission to record your communications with the Bank. If you authorize someone such as an attorney to do business with the Bank on your behalf, you will be responsible for obtaining their permission to allow the Bank to record their communications with the Bank.
12.4 NOTICES: The Bank may satisfy any obligation to provide notice to you pursuant to this agreement by sending written notice to your last known address or to the last known address or electronic notice to the most recent email address you provided to the Bank through its online banking service (“Online Banking”) or through your communications with customer service. The Bank may also provide you notices and documents by posting a notice to you through Online Banking or by sending a text message or voicemail to your last known phone number. Notice to you is effective the day it is e-mailed to you or otherwise made available to you electronically.
You may provide notice to the Bank by submitting a message to us through the secure message feature of Online Banking, sending an email to support@bankmd.com or mailing written notice to the Bank at:
BankMD, a Division of TransPecos Banks, SSB,
P.O. Box 1437
Westerville, OH 43086
Notice to the Bank is effective when it is received by the Bank. Notice to you is effective when sent as notice to every Account Owner and Authorized Signer. Notice to the Bank using any method other than written notice by mail is effective when the Bank acknowledges such notice in writing.
12.5 CHANGE OF ADDRESS: You agree to notify the Bank promptly of any change in your email or physical address by sending a secure message through Online Banking or by contacting Customer Service at 1-888-534-3509. Any other form or method of notice to the Bank of your change of address is inadequate. BANK IS NOT RESPONSIBLE FOR ANY DAMAGES OR LIABILITY, INCLUDING, BUT NOT LIMITED TO, THEFT, FRAUD, EMBEZZLEMENT, SERVICE CHARGES OR OTHER FEES, ACCOUNT DORMANCY, OR ESCHEAT CAUSED BY OR ARISING OUT OF YOUR FAILURE TO KEEP BANK APPRISED OF YOUR CURRENT EMAIL OR PHYSICAL ADDRESS.
13. ACCOUNTHOLDER RESPONSIBILITIES: You acknowledge that you have a duty to manage your Account in a responsible manner. Good account management means understanding options and making an informed choice about how to conduct transactions. This includes balancing your checkbook by recording all transactions, reviewing your monthly Account statement, and tracking your Account balance. Keeping a balanced checkbook is the best way to avoid unnecessary fees.
14. YOUR DUTY TO REPORT UNAUTHORIZED SIGNATURES, ALTERATIONS AND FORGERIES: You must examine Account statements with “reasonable promptness.” If you discover (or reasonably should have discovered) any unauthorized signatures or alterations, you must promptly notify the Bank of the relevant facts. As between you and the Bank, if you fail to do either of these duties, you will have to either share the loss with the Bank or bear the loss entirely yourself (depending on whether the Bank used ordinary care and, if not, whether the Bank contributed to the loss). The loss could be not only with respect to items on the statement but other items with unauthorized signatures or alterations by the same wrongdoer. You agree that the time you have to examine your statement and report to the Bank will depend on the circumstances, but will not, in any circumstance, exceed a total of 30 days from when the statement is first sent or made available to you, which you agree is reasonable. You further agree that if you fail to report any unauthorized signatures, alterations or forgeries in your account within 60 days of when we first send or make the statement available, you cannot assert a claim against the Bank on any items in that statement, and as between you and the Bank the loss will be entirely yours. This 60-day limitation is without regard to whether we used ordinary care.
15. YOUR DUTY TO REPORT OTHER ERRORS: In addition to your duty to review your statements for unauthorized signatures, alterations, and forgeries, you agree to examine your statement with reasonable promptness for any other errors such as an encoding error. You agree that the time you have to examine your statement and report to the Bank will depend on the circumstances. However, such time period shall not exceed 60 days. Failure to examine your statement and report any such errors to the Bank within 60 days of when we first send or make the statement available precludes you from asserting a claim against the Bank for any such errors on items identified in that statement, and as between you and the Bank the loss will be entirely yours.
16. RIGHT TO SETOFF AND SECURITY INTEREST: You and Authorized Signers, jointly and severally, grant to the Bank a security interest in, and a right to setoff against, any and all monies, securities or other property of yours and each Authorized Signer now, or hereafter, in the possession of, or on deposit with the Bank. To the extent allowed by law, (i) the security interests and right to setoff granted herein shall secure payment of any and all indebtedness to the Bank of yours and each Authorized Signers, incurred individually or jointly with others, now or hereafter owed to the Bank, (ii) any indebtedness now or hereafter owed to the Bank by you and Authorized Signers may be charged to and setoff against any account at the Bank that is owned jointly or solely by you, in your name, or in the name of any Authorized Signer, and (iii) the security interests and right to setoff granted herein may be exercised by the Bank without any prior demand on, or notice to you or any Authorized Signer.
The setoff rights, liens and/or security interests granted herein do not attach to homestead property as defined in the Texas Constitution and Texas Property Code and may not be exercised in contravention of Article 16 Section 50 of the Texas Constitution regarding liens on homestead property and home equity lending. You and each Authorized Signer agree that the Bank’s right to setoff applies to any item cashed or otherwise paid by the Bank. The Bank’s security interest and right to setoff granted herein do not apply if the debt is created under a consumer credit card plan or if the debt is of an Authorized Signer who is not you.
THE BANK’S LIABILITY OR RESPONSIBILITY, IF ANY, FOR EXERCISING ANY RIGHT TO SETOFF OR FOR ANY FORECLOSURE OF ANY SECURITY INTEREST IS EXPRESSLY LIMITED TO REIMBURSEMENT OF THE AMOUNT OF NET FUNDS SETOFF OR ACTUALLY RECEIVED BY THE BANK. THE BANK IS NOT LIABLE FOR DISHONORED ITEMS OR REJECTED TRANSACTIONS, WHERE THE BANK’S EXERCISE OF ITS RIGHT TO SETOFF OR FORECLOSURE OF ITS SECURITY INTEREST CAUSES SUBSEQUENT TRANSACTIONS TO BE DISHONORED OR REJECTED BECAUSE THERE ARE INSUFFICIENT AVAILABLE COLLECTED FUNDS IN THE ACCOUNT.
TRANSACTION PROCESSING
17. TRANSACTION PROCESSING PROCEDURES: The Bank may refuse to perform any requested act, transaction, or process, which it is not expressly obligated to perform under the terms of this Agreement. The Bank has no obligation to accept deposits or to pay or process any checks, drafts, withdrawal or transfer documents, wires, or other items or transfer types. The Bank may provide notice of any such refusal on your Account statement or another method convenient to the Bank. The Bank may modify its internal procedures at any time without notice for any type of transaction that the Bank deems necessary in order to protect the Bank or you. The Bank may process checks or other items drawn on this Account, or any electronic transfers and electronic transactions in any order (largest to smallest, smallest to largest, numerically or otherwise). The Bank’s current method is described in “Order of Payment” in Section 18 of this Agreement. The Bank may change our processing order at any time, even though some processing orders may result in more insufficient funds fees to you than others.
18. ORDER OF PAYMENT: The Bank will generally process transactions in the order in which they are received at the time they are received and processed by the Bank. Debit card transactions are posted in the order in which they are received by the Bank. Wire transactions are posted in the order in which they are received by the Bank. Mobile deposit transactions are accumulated in intervals are and posted in batches at one of four (4) times each Business Day. ACH transactions are processed when they are received. For ACH transactions received simultaneously, credit transactions are processed first, debit transactions are processed second. Debit card merchants, ATM networks, ACH originators and processors, and other persons involved in processing electronic transactions a) may delay processing transactions, b) may be subject to varying processing speeds, and c) may be subject to various payment security controls that the Bank does not control. Processing times may vary from immediate processing to processing over several days or more. We cannot guarantee that your transactions will be processed in the order in which they occur. Before conducting a transaction, you should determine whether your outstanding transactions have been received and processed by the Bank. The order in which transactions are processed can affect the total amount of overdraft or non-sufficient funds fees incurred. The Bank reserves the right to clear and post transactions in any order, to the extent permitted by law.
19. WITHDRAWALS GENERALLY: You, any Authorized Signer, or other person you authorize may withdraw or transfer all or any part of the Account balance at any time. You authorize each other person who signs or has authority to make withdrawals to endorse any item payable to you or your order for deposit to this Account or any other transaction with us. The Bank reserves the right to require not less than 7 days’ notice in writing before each withdrawal from an interest-bearing transaction account or from any other savings account as defined by Regulation D. Withdrawals from a time account prior to maturity or prior to any notice period may be restricted and may be subject to penalty. In the event your Account is a time account, we will provide you with notice of penalty for early withdrawal.
20. TRANSFER LIMITATIONS: For savings and money market accounts you may make up to six transfers or withdrawals during any calendar month or statement cycle of at least four weeks. If you exceed any transfer limits on your account, the Bank may charge your account and may close or transfer your account to another deposit account type selected by us for which you are eligible. The Bank will use the date a transaction is completed by the Bank (as opposed to the day you initiate it) to apply the frequency limitations.
21. HOLDS ON ACCOUNT FUNDS: If the Bank cashes or provides cash equivalents for a check or other item presented by any Authorized Signer or his/her agent or representative drawn on another bank, the Bank is authorized to and may reduce the available funds of this Account by an equal amount. The funds subject to the administrative hold will be available again in this Account after receipt by the Bank of final settlement for such a check or other item.
22. CHECK AND ITEM FORM SPECIFICATIONS: The Bank will not accept cash, checks, or other instruments for deposit in person or by mail. You may deposit checks using the mobile deposit feature of the Bank’s mobile app. You agree that the Bank may refuse to accept for deposit or to process any check, draft, payment order, withdrawal or transfer document, or other item that is presented in a form that the Bank cannot process using equipment that the Bank regularly uses in its normal operations. If the Bank, in its sole and absolute discretion and without any obligation or duty, accepts or pays any item that is not within the Bank’s form specifications, each such transaction is subject to additional fees and service charges as set forth in the BankMD Truth in Savings Disclosure and Fee Schedule. The Bank is expressly authorized to construe as “or” any symbol, mark or word (other than the word “and”) or may imply “or” in the absence of any connective on the payee line of any check or other item containing multiple payees.
23. CHECK STOCK: You agree and stipulate that the check stock offered for purchase from or through the Bank is printed on special paper which contains multiple features and watermarks to prevent and detect check fraud, duplication, and counterfeiting and that the use of non-bank check stock significantly increases the risk of loss that may result from check fraud and duplication. You agree not to use checks or check stock that are not in a format approved by the Bank. You acknowledge that the Bank and other depository banks may not be able to properly take or process checks or check stock that are not approved by the Bank. You further agree that the Bank is not liable for loss resulting from check fraud or duplication on check stock purchased from a source other than the Bank, to the extent such loss is not attributable to the Bank’s failure to exercise ordinary care. Checks are not available for all account types.
24. DUTY TO SAFEGUARD: You and each Authorized Signer have a non-delegable duty to safeguard (i) all checks and other encoded items from being stolen, or otherwise taken, or utilized without authority, (ii) all account numbers, routing number, Personal Identification Numbers and customer authentication information, (iii) all public and private key encryption information, and (iv) all other Account related private information. You agree to protect such items and information with the same care, as you would your most sensitive personal or financial information. In no case will you safeguard such information with less than a reasonable standard of care.
If any checks or other encoded items are stolen, or otherwise taken or utilized without authority, and the Bank has exercised ordinary care, each Authorized Signer agrees that the Bank is relieved of any and all liability for the negotiation, payment, certification or processing of any such checks and/or other encoded items.
If you voluntarily disclose your Account information to another person orally, in writing, electronically, or by some other means, the Bank may treat such disclosure as your authorization to that person to issue items drawn against your Account. Until you notify the Bank that such items are not authorized, the Bank shall not be liable to you for the payment of any such items even though the items are not in accordance with the authorization you may have given to that person.
A withdrawal by a co-owner or other person with an interest in or authority to transact business on your Account is an authorized withdrawal. A withdrawal by a person you have authorized to use your ATM or debit card or the Bank Account Card is not unauthorized even if that person has exceeded the authority you gave.
If you voluntarily give information about your Account (such as our routing number and your Account number) to a party who is seeking to collect a debt or sell you goods or services, and you do not physically deliver a check to the party, any debit to your account initiated by the party to whom you gave the information is deemed authorized by you.
25. BANK’S DUTY OF CARE: Due to the large volume of items the Bank must process and the largely automated nature of such processing, you agree that the Bank will not have failed to exercise ordinary care if the Bank examines only a sampling of items pursuant to a written procedure or that meets certain minimum review and inspection criteria which the Bank may establish from time to time. The Bank may utilize a bulk filing system in the processing of checks and other encoded items, and the use of a bulk filing system in the processing of checks and other encoded items will constitute the exercise of ordinary care by the Bank under this Agreement. You accept this standard of care and acknowledge that the Bank’s use of ordinary care as defined above may not detect some types of counterfeit checks. The Bank’s policies and procedures are solely for its use and do not impose upon the Bank a higher standard of care than is otherwise established by applicable law or regulation.
26. COMPARATIVE NEGLIGENCE: If your failure to exercise ordinary care substantially contributes to the forgery or alteration of an item which is paid against this Account or contributes to a loss due to a mistake in a deposit or charge against the Account, you will be precluded from asserting such forgery or alteration or mistake against the Bank. If the Bank asserts such a preclusion and you establish that the Bank’s failure to exercise ordinary care substantially contributed to the loss resulting from the payment of the forged or altered item(s), or other mistakes, the loss shall be allocated between you and the Bank on a comparative basis. Notwithstanding this comparative negligence standard, the Bank will not be liable if items are forged or altered such that the forgery or alteration could not have been detected by the Bank by exercising ordinary care.
Notwithstanding anything contained herein to the contrary, the Bank will never be liable for, or responsible in any way for, any percentage of any alleged loss or damages purportedly resulting from an alteration, forgery, counterfeit items, unauthorized signature, or endorsement or any other irregularity on any item or in the Account, unauthorized remotely created item, or electronic debit, which is greater than the percentage of any alleged loss or damages proximately caused by the Bank’s failure to exercise ordinary care, if any, regardless of the percentage of proximate causation attributable to you or an Authorized Signer.
27. CREDITS FOR DEPOSITS: With regard to items received for deposit or collection, the Bank acts only as your collecting agent and assumes no responsibility beyond its exercise of ordinary care. The Bank reserves the right to refuse any item for deposit into your Account. All credits to this Account are only provisional and are subject to final payment and receipt by the Bank at its own offices of proceeds of final payment in cash in United States currency, free from any claims, rights to setoff, or other chargeback rights. The Bank may forward items to correspondents for handling and shall not be liable for any default or negligence of any correspondent. Items and their proceeds may be handled by any Federal Reserve Bank in accordance with applicable Federal Reserve Rules, with Regulation CC, and by the Bank or any correspondent in accordance (i) with any general banking usage, (ii) with any accepted industry standard or practice, (iii) with any practice or procedure that a Federal Reserve Bank may use or permit any other bank to use, or (iv) with any other lawful means or practice.
The Bank may charge back against this Account or any other account you hold at the Bank, at any time allowed by law, any item drawn on this the Bank which is returned unpaid or otherwise not good or payable. If a deposited item, check, draft, or automated clearing house entry is returned to the Bank by the bank on which it is drawn, the Bank may accept that return and charge the item back against this Account or any other account you hold at the Bank, without regard to whether the paying bank returned the item before its return deadline. Unless prohibited by applicable law or regulation, the Bank may charge back to this Account, or to any other account belonging to you at the Bank, the amount of any item deposited to this Account or negotiated for cash or cash equivalents, or certified, which item initially was paid by the payor the Bank and which is later returned due to an alleged forgery, unauthorized or missing endorsement, claim of alteration, encoding error or any other alleged problem or irregularity. The Bank may process a copy or other evidence of a returned item in lieu of the original.
An item received after the cut-off time specified in the BankMD Funds Availability Policy shall be deemed received the next business day. The Bank reserves the right to post all deposits not later than midnight of its next business day after their actual receipt of the deposit during regular business hours, or at any later time allowed by law, and the Bank shall not be liable for damages, claims or expenses due to any item presented during any time period allowed herein.
When the Bank accepts deposits and issues receipts, such deposits and receipts are subject to subsequent verification and correction, if necessary. If the Bank discovers or receives satisfactory documentation that an Account entry was made in error or for an erroneous amount or is otherwise incorrect, the Bank may debit this Account for the amount erroneously credited or take such other action as may be required to correct the error, and each Authorized Signer agrees to reimburse the Bank to the extent that the collected available funds in this Account at such time are insufficient to fully correct the error. In the event that any payment does not become final, or is corrected, the originator of the payment will not be deemed to have paid you the amount of the erroneous credit. Each Authorized Signer will be solely responsible for any loss, damage or expense caused by any failure to identify properly the account to which a deposit is made or intended to be made.
We may accept for deposit any item payable to you or your order, even if they are not endorsed by you. We may give cash back to any one of you. We may supply any missing endorsements for any item we accept for deposit or collection, and you warrant that all endorsements are genuine.
28. MULTIPLE SIGNATURES: If this Account purports to require two or more signatures on any item, each Authorized Signer acknowledges that such provision is solely for your personal or internal control purposes and is not binding on the Bank. You acknowledge and agree that the Bank processes checks based on electronic or magnetically coded information on the face of the check or substitute check. the Bank will not be obligated to review signatures prior to processing check transactions or other transactions. The Bank will not be liable for paying any item lacking the required number of signatures if such item bears at least one authorized signature.
29. NON-MANUAL FORM OF SIGNATURE: If any items drawn on this Account are signed, countersigned or endorsed using any facsimile signature, stamp signature, mechanical signature, computer software generated signature or other non-manual form of signature (collectively referred to as “non-manual form of signature”), you acknowledge that the use of such non-manual form of signature is solely for your benefit and convenience. Each Authorized Signer accepts sole responsibility for maintaining security over any device utilized for affixing each authorized signature on this Account.
Any non-manual form of signature reasonably resembling any signature on file with the Bank or affixed to any prior item which was accepted and paid, previously processed without objection, presented for cash or other negotiation, or deposited to this Account will be effective as a genuine authorized signature of an Authorized Signer and the Bank is hereby authorized to debit this Account for payment of any item signed by such non-manual form of signature, regardless of whether the person affixing it was authorized to do so or not, and regardless of when, or by whom or by what means the actual or purported non-manual form of signature may have been made or affixed thereto. The Bank may also conclusively treat as authorized any signature that reasonably resembles the non-manual form of signature you have adopted as your own, whether such non-manual form of signature is affixed by the original or a duplicate of the signature, device, stamp, or program.
30. DEMAND DRAFTS: If you attempt to deposit a demand draft (an unsigned draft or a preauthorized draft) into your account, you warrant and guarantee that the draft is valid as drawn and authorized. We may, in our sole discretion, refuse to accept a demand draft.
31. RETURN OF DEPOSITS: The Bank may, in its sole and absolute discretion and without reason or cause, return or refuse to accept any deposit, transfer or other credit, in whole or in part, to this Account at any time and will not be liable for doing so.
32. INCOMPLETE OR CONDITIONAL ITEMS: If any Authorized Signer issues an item which is incomplete or conditional (such as “Void After 90 Days” or “Not Valid Over $500.00”), each Authorized Signer acknowledges such provision or condition is solely for your convenience or internal control purposes and agrees that the Bank may pay such item, in its sole and absolute discretion, even if it is incomplete or the condition has not been fulfilled.
33. COLLECTION OF FOREIGN ITEMS AND EXCHANGES: The Bank does not accept foreign items or currency for deposit.
34. ENDORSEMENTS: If any endorsement is placed on an item for deposit which is outside of the area extending 1 1/2 inches from the trailing edge of the check, draft or other item, or otherwise causes the endorsement of the first bank of deposit to be obscured in any way, and this causes a delay or error in the collection or return of the item, each Authorized Signer will be responsible, jointly and severally, for any loss or expense the Bank may incur as a result thereof. The trailing edge is defined as the left side of the item as viewed from the front.
Endorsements made on checks which are deposited by mobile application must include the following statement: “for mobile deposit at BankMD only” and your account number.
35. DELAY IN RETURN OF ITEMS: You agree that the Bank will not be liable to you because an item you deposit in this Account is returned after the time set by applicable law if the delay in returning the item is caused by markings on the item in the space reserved for the depository bank’s endorsement that were made by you or a prior endorser. Where the delay in properly returning the item is caused by markings on the item in the space reserved for the depository institution’s endorsement that existed at the time you issued the item, you will also be liable to the Bank for any loss or expense, including without limitation, reasonable attorney fees, the Bank incurs because it is unable to properly return an item drawn on this Account within the time set by applicable law.
37. STOP PAYMENTS: Stop payment requests must be made via Online Banking or by calling Customer Service at 1-888-534-3509. A stop payment request must specify at a minimum, the date of the item, the exact amount of the item, the item number, and the precise account number. The Bank will employ reasonable efforts to comply with a stop payment request within a reasonable time after receipt of the request. A request for stop payment is effective for twelve (12) months. A stop payment request may be renewed by written request to the Bank. The Bank will not be held liable if an item is presented for payment and paid after a stop payment request has expired. The Bank may, but is not required to, honor oral stop payment requests. If you make an oral stop payment request and the Bank accepts such request, you must confirm the stop payment request in writing within a reasonable time, but in no more than 10 days from the oral request. The Bank is not required to honor an unconfirmed oral stop payment request. If your check has been converted to an electronic transaction (ACH), and you wish to stop that transaction, contact a Bank representative promptly. Checks converted to ACH require different stop payment procedures. Stopping the paper check will not stop the electronic transaction.
The deadline for receipt of a stop payment request is one (1) hour after the opening of the next Business day after the Business day on which the Bank received the item. For purposes of this paragraph “Business day” is defined as Monday through Friday, from 8:30 am to 5:00 pm, excluding federal and state holidays or other posted Bank closings. For stop payment orders for recurring electronic transactions, please refer to the Regulation E Disclosure/Electronic Funds Transfer Agreement.
EACH AUTHORIZED SIGNER AGREES TO INDEMNIFY AND HOLD HARMLESS THE BANK FROM ANY AND ALL CLAIMS BY THIRD PARTIES, AND ALL EXPENSES AND COSTS INCURRED BY THE BANK (INCLUDING ITS REASONABLE ATTORNEY’S FEES AND COSTS) AS A RESULT OF REFUSING PAYMENT OF SAID ITEM OR ITEMS. EACH AUTHORIZED SIGNER FURTHER AGREES THAT THE BANK WILL NOT BE LIABLE FOR PAYMENT OF AN ITEM SUBJECT TO A STOP PAYMENT REQUEST IF SUCH PAYMENT OCCURS THROUGH INADVERTENCE, ACCIDENT, OR OVERSIGHT, OR IS CREDITED TO, OR AGAINST, ANY CLAIMED INDEBTEDNESS OF ANY AUTHORIZED SIGNER, OR IF BY REASON OF SUCH PAYMENT OTHER ITEMS DRAWN ON THIS ACCOUNT ARE RETURNED DUE TO INSUFFICIENT OR UNCOLLECTED AVAILABLE FUNDS. THE BANK’S LIABILITY, IF ANY, FOR PAYING AN ITEM SUBJECT TO A PROPER, TIMELY AND EFFECTIVE STOP PAYMENT ORDER IS LIMITED TO YOUR ACTUAL ECONOMIC LOSS SUSTAINED, OR TO THE FACE AMOUNT OF THE ITEM, WHICHEVER IS LESS.
38. WAIVER OF PROTEST, DISHONOR, NONPAYMENT: Each Authorized Signer agrees to waive demand, protest and notice of dishonor or nonpayment regarding any items deposited to this Account or presented for cash or negotiation. Any warranty or other liability of any Authorized Signer as an endorser will not be released by the Bank by obtaining verification regarding any presented or deposited item.
39. DELAY IN AVAILABILITY OF FUNDS: If an item or other right to funds is deposited in or credited to this Account where the availability of such funds may be delayed pursuant to applicable state or federal law, then whether or not the Bank has received final settlement, such funds are deemed unavailable to you for the time period prescribed by law or set forth in a notification delivered to you.
40. DETERMINING YOUR ACCOUNT’S AVAILABLE BALANCE: Your available balance is the most recent record we have of the funds available for withdrawal from your Account. The available balance is your current balance plus any pending deposits minus any holds on deposits you have made and pending transactions (such as pending debit card purchases or ATM withdrawals) that the Bank has authorized but that have not yet posted to your Account. It is possible for you to overdraw your Account even though the available balance appears to show there are sufficient funds to cover a transaction that you want to make. This happens because the available balance may not reflect all of your outstanding checks, recurring ACH or debit card payments, or other transactions. Your available balance may also not reflect the most recent deposits to your Account – see the Section 39 titled “Delay in Availability of Funds” in this document. In some cases, a merchant may not submit a one-time debit card transaction for payment within the time period specified in the payment network rules governing your card. In such a case, the available balance will no longer show an authorization hold and will not reflect the transaction until it has been received by us and paid from your Account. Keep a record all of your transactions in a check register. This will help you keep track of your Account balance.
41. ELECTRONIC PRESENTMENT: This Account may be debited on the day an item or requested authorization is presented by electronic or other means or at an earlier time based on notification received by the Bank that an item drawn on this Account has been deposited for collection in another financial institution, or that an item deposited into this Account is being returned. A determination of the Account balance for purposes of making a decision to dishonor an item for insufficiency of collected available funds may be made at any time between the receipt of such presentment or notice and the time of return of the item, and no more than one such determination need be made.
42. LOST CHECKS: When the Bank cashes a check for you or accepts a check for deposit to your Account, the Bank acts as your agent in collecting the check. The Bank is not responsible for checks that are lost or delayed in the collection process. If a check is lost during the collection process, we may charge your Account for the amount of the check. If the financial institution on which the check is drawn gives us a photocopy or electronic image of the check or debit slip representing the check, we may charge your Account for the amount of the check. You agree to recreate the transaction and provide the Bank all information requested regarding such lost item.
A lost check may not be returned to us for some time. Despite any delay, we may charge your Account when we receive either the returned check, a copy of the check, or a notice of return.
43. STALE-DATED ITEMS: The Bank is not required to pay any item presented more than six months after its date. However, the Bank may in its sole discretion pay such item in good faith. You agree that the Bank is acting in good faith if there is not a stop payment order in effect when it pays the item.
44. POST-DATED ITEMS: Each Authorized Signer agrees not to issue post-dated checks or other items. Unless you notify the Bank in writing of a post-dated check or other item within a reasonable time as will afford the Bank an opportunity to act on such notice, the Bank may, in its sole discretion, return the postdated check or other item unpaid or may pay the check or item prior to the date of the check or item. The notice must describe the item by item number, item amount, item date, and account number. You release and will indemnify and hold harmless the Bank from any and all claims, damages and costs, including, but not limited to the Bank’s reasonable attorney’s fees, related to paying, accepting or certifying a postdated check or other item prior to the date set forth on the check or other item, unless you give prior notice to the Bank in accordance with this provision.
45. OVERDRAFTS AND ADVANCES AGAINST UNCOLLECTED FUNDS: The Bank will not be liable for failure to pay or honor any item or withdrawal request unless it is drawn or requested against available funds credited to this Account at the opening of business of the day the item is presented for payment or the request is received. The decision whether to pay any item which will create an overdraft, or which will be an advance against uncollected funds shall be in the sole and absolute discretion of the Bank and any payment of such item on one or more occasion does not obligate the Bank to allow or pay any additional or future overdraft or advance against uncollected funds. Nothing contained herein shall imply the Bank’s allowance, or payment, of one or more overdraft or advances against uncollected funds, nor will it create a revolving line of credit, a continuing obligation on the part of the Bank to overdraw or advance against uncollected funds or any other financing arrangement between you, any Authorized Signer or the Bank. The processing and handling charge for NSF items or items presented against uncollected funds is not a charge for the use, forbearance, or detention of money. Such charge would be made whether or not the Bank pays the item. These service charges and fees are more fully described herein in the Bank’s Truth in Savings Disclosure and Fee Schedule.
46. TRANSACTION RESTRICTIONS: The Bank may, in its sole and absolute discretion, for security reasons place limitations on the amounts of withdrawals and other transactions you make. Please see the Truth in Savings Disclosure and Fee Schedule for current transaction limitations.
47. DIRECT DEPOSIT OF GOVERNMENTAL ITEMS: If, in connection with a direct deposit plan, the Bank deposits any amount in this Account which should have been returned to the Federal Government for any reason, each Authorized Signer authorizes the Bank to deduct the amount of any liability to the Federal Government from this Account or from any other account at the Bank without prior notice and at any time, except as prohibited by law. The Bank may also use any other remedy to recover the amount of the Bank’s liability. You and each Authorized Signer acknowledge that Social Security Benefits directly deposited into this Account have special protections and exemptions, and knowingly agree that any amount of Social Security Benefits directly deposited into this Account are subject to overdraft charges, fees and interest and may be applied to the payment thereof.
48. CHECK 21 – SUBSTITUTE CHECKS AND YOUR RIGHTS: To make check processing faster, federal law permits the Bank to replace original checks with “substitute checks.” These checks are similar in size to the original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” You may use a substitute check as proof of payment just like the original check.
Some or all of the checks described in your Account statement may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or electronic debits to your Account. However, you have rights under other laws with respect to those transactions. Details on your rights and how to submit a claim are set forth in the Funds Availability Policy provided to you when you opened your account. If you deposit a substitute check into your Account, you give us the same warranties and indemnities that the Bank, as a reconverting bank, would give under Check 21 regulations.
49. SUBSTITUTE CHECKS AND CHECK IMAGES: In lieu of returning each of your paid checks and other items, the Bank may provide the check number, amount and date of payment in your account statement, electronically or otherwise, together with images of the front of all of your canceled checks and other items displayed in check number order via Online Banking or on your statement. As soon as an item is copied it may be destroyed. Within a reasonable time after the Bank received your request, it will furnish a copy of both front and back of such item within the required retention period. You continue to be responsible for notifying the Bank in writing of any unauthorized signature, lack of signature, alteration or other irregularity within the time periods described herein.
TRANSACTION PROCESSING ELECTRONICALLY:
51. CONVERTING CHECKS TO ELECTRONIC DEBITS: Some businesses use a procedure to convert checks that are drawn on your Account with us into electronic debits. To use this procedure, you sign an authorization that permits the business to convert the check to an electronic debit. The business may process your check through a machine that captures the account routing number, check amount, and other relevant information. An electronic debit for the transaction amount is then sent to the Bank. When the Bank receives the electronic debit, it may charge it to your account at any time, regardless of the balance of your Account. The Bank may receive the electronic debit to your Account immediately after the business enters the transaction. To avoid an overdraft, you must have sufficient funds in your Account to cover the amount of the check at the time you authorize the transaction. Since the check is not sent to the Bank for processing, the Bank will not have a copy of your check. You should retain a copy of the check for your records. Electronic debits are listed on your Account statement.
52. NOTICE OF RECEIPT OF AUTOMATED CLEARING HOUSE (“ACH”) ITEMS: Under the operating rules of the National Automated Clearing House Association which are applicable to ACH transactions involving this Account, the Bank is not required to give you next day notice of the receipt of an ACH item, and the Bank will not do so. However, the Bank will continue to notify you of the receipt of payments in the Account statements the Bank provides to you.
53. PROVISIONAL PAYMENT: Credit given by the Bank to you with respect to an automated clearing house credit entry is provisional until the Bank receives final settlement. If the Bank does not receive final settlement, you are hereby notified and agree that the Bank is entitled to a refund of any or all of the amount credited to you in connection with such entry, and the party making payment to you via such entry (i.e., the originator of the entry) shall not have been deemed to have paid you the amount of such entry.
54. CHOICE OF LAW FOR ACH TRANSACTIONS: The Bank may accept, on your behalf, payments in your account which have been transmitted through one or more Automated Clearing Houses and which are not subject to the Electronic Fund Transfer Act. Your rights and obligations with respect to such payment shall be construed in accordance with and governed by the operating rules of the National Automated Clearing House Association.
55. AUTOMATED CLEARING HOUSE FUNDS TRANSFER AUTHORIZATION AND AGREEMENT: To the extent you or an Authorized Signer utilizes the Bank’s funds transfer services, you direct and authorize the Bank to transfer funds from this Account to specifically designated accounts, whether such accounts are with the Bank or with another financial institution and to further execute funds transfer instructions or payment orders and to receive funds to be deposited in this Account, pursuant to the following terms and conditions:
55.1 PAYMENTS ORDERS AND FUNDS TRANSFERS:
(i) The Bank is authorized to act on any oral or written directions whether delivered or communicated to the Bank in person, by messenger, by telephone, telegraph, facsimile transmission, telex, U.S. mail, approved automated or electronic transmission or in other manner mutually agreed upon in writing by you and the Bank, and the Bank shall be entitled to rely on any writing, letter, telex, teletype message, cablegram, statement, order, instruction, or other written communication, or any telephone or personal conversation believed by the Bank in good faith to have been signed, forwarded, delivered, or communicated by any Authorized Signer or your agent representative.
(ii) The Bank shall be under no obligation to comply with any payment order or to make any funds transfer which would exceed the available collected balance of funds in this Account. The Bank may refuse to accept or give effect to any payment order for any reason.
(iii) You shall have no right to cancel or amend any payment order after it is accepted by the Bank, unless the Bank otherwise agrees in writing.
(iv) In the event of an erroneous or otherwise irregular funds transfer, the Bank may, but shall not be obligated to, on its own initiative or pursuant to your request, ask the receiving bank, the beneficiary’s bank or the beneficiary of the funds transfer, to return the funds previously transferred in error on your behalf.
(v) A payment order is paid at the time the payment order is executed, at the time the transfer is credited to the beneficiary’s account on the books of the Bank, or at the time the advice of credit of such funds transfer is forwarded or otherwise communicated to the beneficiary by the Bank, whichever occurs first.
(vi) The Bank is authorized to record any telephonic or other oral instructions received from you by the Bank regarding funds transfers or receipts, however, the Bank has no duty to record or maintain any record of your oral instructions by audio tape or handwritten notes.
(vii) The Bank may handle or execute payment orders received from you or from other Bank customers in any order selected by the Bank, in its sole and absolute discretion, regardless of time or order of sequence of receipt by the Bank, and the Bank may use any means, methods, or routes which it, in its sole and absolute discretion, may consider suitable for executing each separate payment order.
(viii) The Bank may establish, designate and provide a notice of a cutoff time or opening and closing times for each the Bank or branch location as a “funds transfer business day” for the receipt and processing of payment orders and communications canceling or amending payment orders. Any payment order or communication received after the designated and noticed closing times or on a Saturday, Sunday, or any bank holiday observed by the Bank where the payment order or other communication is delivered, shall be deemed received by the Bank on the next “funds transfer business day”.
(ix) The Bank and any subsequent receiving bank may execute payment orders for the transfer of funds to a beneficiary in the name of the beneficiary or solely by an account number of the beneficiary furnished to the Bank by you or another sender. In the event there is any discrepancy between the name of the designated beneficiary and account number, the payment order may be executed by reference to the account number only.
55.2 SECURITY PROCEDURES: You will be subject to the following security procedures:
(i) The Bank, at its option, may verify that a payment order or communication amending or canceling a payment order is yours by calling you at a telephone number you specify. This telephone number may be changed by your written notice.
(ii) The Bank may require that you identify yourself in connection with each payment order by a method specified by the Bank. The Bank shall not be obligated to execute any transfer unless the authorized representative who places the payment order is able to complete the procedure specified by the Bank. The Bank may change such procedures at any time upon notice to you or any authorized representative. You agree to keep each such security procedures confidential and the Bank shall have no liability for losses occasioned by unauthorized access to or use of security procedures.
(iii) The Bank may, in its sole discretion, elect not to act upon a payment order if the payment order is not initiated in accordance with agreed security procedures. If the Bank is unable to obtain proper verification of such payment order, or is otherwise suspicious regarding payment order, if there is any inconsistency between a payment order and information previously supplied to the Bank. If the Bank acts on a payment order it believes in good faith is authorized by you, it will have no liability for executing a payment order.
(iv) You agree to these security procedures and agree that they are reasonable in light of your Account use and the amount, frequency, and nature of your funds transfer activity.
55.3 REVIEW OF STATEMENTS AND ADVICES: In addition to your other obligations set forth herein, under applicable clearing house association rules, and under applicable law, you agree to promptly review and reconcile your Account statements with the Bank and shall report to Customer Service any discrepancies, errors, inaccuracies, unauthorized requests, or objections of any other type or nature between the Bank’s records and your records within a reasonable time, not to exceed fourteen (14) calendar days from the earlier of the date of the statement or the date the Bank otherwise advises you of the funds transfer. Your failure to notify the Bank of within such specified time period will relieve the Bank of any liability to you for any such discrepancies, errors, or other objections.
55.4 COMPENSATION: Subject to the “Review of Statements And Advices” provision above, compensation, if any, for the loss of interest or use of funds due to you caused solely by the Bank’s error or the Bank’s failure to execute a transfer request no later than one Business day after the date received (if such request was received prior to the Bank’s funds transfer deadline) and when such execution or error was within the Bank’s sole control, will be for a period not exceeding the lesser of sixty (60) days or the period between the date of the request and the date of actual transfer or error correction, and will be in either of the following forms at the option of the Bank: (i) adjusting your Account balance at the Bank to reflect the average balances that would have resulted had no error occurred; or (ii) reimbursing you an amount equal to accrued interest at the average Federal Funds rate of the Dallas Federal Reserve Bank computed on a daily basis for the period and on the amount in question. In any event, the Bank shall not be liable for any claimed damages arising out of or in connection with a payment order or funds transfer after one year from the date of such payment order or funds transfer.
55.5 RESPONSIBILITY OF BANK:
(i) The Bank shall have no responsibility or liability for any inaccuracy, interruption or delay in transmission or for claims occasioned by any circumstances, unless caused by the Bank’s gross negligence or willful misconduct. The Bank shall have no responsibility or liability for any claims, damages, interruptions, delays or any other circumstances arising out of an act or failure to act by a third person or entity, beyond the Bank’s reasonable control.
(ii) YOU WILL HOLD THE BANK HARMLESS AND INDEMNIFY THE BANK FOR ANY CLAIMS, DEMANDS, EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES AND COSTS), LOSS OR DAMAGE OF ANY NATURE WHATSOEVER ARISING DIRECTLY OR INDIRECTLY FROM ANY PAYMENT ORDER ISSUED BY YOU PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, EXCEPT FOR LIABILITY TO YOU CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BANK. IN NO EVENT, SHALL THE BANK BE LIABLE FOR, AND YOU HEREBY RELEASE THE BANK AND ITS CORRESPONDENTS AND AGENTS FROM LIABILITY FOR, ANY PUNITIVE, MULTIPLE, STATUTORY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF THE BANK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
(iii) You will assume full responsibility for all transfers executed by the Bank in good faith, and in accordance with these procedures, you agree that the Bank shall conclusively be deemed to have acted in good faith if it has followed the transfer procedures set forth in this Agreement, and agrees that the Bank assumes no responsibility beyond its duty to exercise ordinary care.
(iv) The Bank’s liability, if any exists, is discharged to the extent of any payment remitted to beneficiary from any source, including you.
56. BANK ACCOUNT CARD: The Bank Account Card includes the Mastercard Debit Card issued to you in connection with your Account. Subject to the Order of Payment provision above, you and each Authorized Signer agree and acknowledge that any use of a Bank Account Card will immediately reduce the available funds in this Account by at least the amount communicated, electronically or otherwise, to the Bank, whether communicated as a withdrawal, transfer to another account, authorized administrative hold, or as any other transaction. The Bank has an absolute right to rely on the information electronically or otherwise communicated to the Bank regarding any use or attempted use of a Bank Account Card. The Bank has no duty or obligation to make any inquiry regarding the authority of the user or the accuracy of any information communicated to the Bank regarding any the Bank Account Card transaction.
When using your Bank Account Card at some merchants, the merchant may place a hold on the account for a predetermined amount unrelated to the transaction. The hold may immediately reduce the available funds balance in your account. The Bank is not responsible for such holds.
When you use your Bank Account Card at a merchant that settles in currency other than U.S. Dollars, the charge will be converted into the U.S. Dollar amount. The currency conversion rate used to determine the transaction amount in U.S. Dollars is either a foreign government mandated rate or the wholesale market rate in effect the day before the processing date, increased by the margin set forth in the Truth In Savings Disclosure and Fee Schedule.
57. INFORMAL RESOLUTION OF CUSTOMER CONCERNS: Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting Customer Service at:
1-888-534-3509
You and the Bank agree to submit to the dispute resolution and arbitration provisions below in the event you and the Bank are not able to reach an informal resolution through customer service. For consumer disputes regarding Electronic Funds Transfers, please refer to the Regulation E/Electronic Funds Transfers Disclosure for other error resolution procedures that may be available to you.
58. VENUE: You agree that the venue for any judicial action or proceeding arising out of or relating to the Agreement or the transactions or services provided pursuant to the Agreement shall be in Bexar County in the State of Texas. Only for consumer accounts belonging to persons who reside in the State of Texas at the time this Agreement is executed, venue for any judicial action or proceeding shall be in the county of the consumer’s residence or the county where the Agreement was signed or accepted. Agreements signed or accepted electronically by residents of states other than Texas and transmitted via the internet are deemed to be signed in the State of Texas in Bexar County.
58. BINDING ARBITRATION AGREEMENT. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
58.1 SENDING NOTICE OF DISPUTE: If either you or the Bank intend to seek judicial action, such party must first send to the other by certified mail, return receipt requested, a written Notice of Dispute. The Notice of Dispute to the Bank should be addressed to:
P.O. Box 1437
Westerville, OH 43086
The Notice of Dispute must (a) describe the nature and basis of the claim or dispute; and (b) explain specifically what relief is sought.
58.2 IF THE DISPUTE IS NOT RESOLVED: Upon receipt of a written Notice of Dispute by you or the Bank, you and the Bank agree to negotiate in good faith to resolve your dispute in accordance with this Agreement and applicable by law. You agree to make yourself reasonably available by phone or in person in order to provide information related to the dispute. You agree to provide to us and to law enforcement or other governmental authorities with additional information as may be needed from time to time in order to complete any investigation requested by you, the Bank, or governmental authorities. If you and the Bank do not reach an Agreement to resolve the claim or dispute within ninety (90) days after the Notice of Dispute is received, you or the Bank may commence a judicial proceeding.
59. MISCELLANEOUS
59.1 OTHER CLAIMS AND DISPUTES CONCERNING THE ACCOUNT: If any person or entity makes a claim against any funds in this Account, or if the Bank has reason to believe that there is or may be a dispute over matters such as the ownership of this Account or any or all funds on deposit therein, or regarding the authority to transact any banking business regarding this Account, the Bank may, in its sole and absolute discretion, take one or more of the following actions: (i) continue to rely on and recognize any authority provided in any of the Deposit Account Agreements, entity or corporate resolutions provided by you, or other Account documents; (ii) freeze all or part of the funds in this Account until the dispute is resolved to the Bank’s satisfaction and any and all documents deemed necessary by the Bank to resolve the dispute or protect the Bank are executed and delivered to the Bank, or (iii) interplead the Account funds or any portion thereof into an appropriate court of law or arbitration proceeding for resolution of such claims and distribution of the funds, after deduction of the Bank’s reasonable attorney’s fees and costs, and the exercise of its right to setoff and foreclosure of its security interest.
59.2 TAXES CHARGED: You agree to pay, and this Account is subject to, any tax charged by any governmental entity on any services rendered by the Bank.
59.3 SUCCESSORS AND ASSIGNMENTS: This Agreement is binding on each of the Authorized Signers and each of their personal representatives, executors, administrators, and heirs, and on each’s successors and assigns, if any. The benefits and responsibilities of the Bank under this Agreement shall also transfer to and shall be binding upon the Bank’s successors and assigns. You may not transfer or assign this Account or any of the rights and obligations of this Agreement without the prior written consent of the Bank.
59.4 POWER OF ATTORNEY: If you wish to designate an attorney in fact, the Bank may request a certification from the attorney in fact to assure its validity. If the Bank recognizes a power of attorney, the Bank may continue to recognize such authority until the Bank receives written notice of revocation, signed by you, whether or not such power of attorney provides other methods of revocation. Notice will be effective after a reasonable time after the Bank has received and acknowledged such notice and has had the opportunity to act upon it.
59.5 DEATH OR INCAPACITY: You agree to notify the Bank promptly if any person with a right to withdraw funds from your Account dies or becomes legally incapacitated. The Bank may continue to honor your checks, items, and instructions until: (1) the Bank knows of your death or incapacity, and (2) the Bank has had a reasonable opportunity to act on that knowledge. Unless ordered to stop payment by someone claiming an interest in the account, the Bank may pay or certify checks drawn on or before the date of death or legal incapacity for up to ten (10) days after it knows of such death or legal incapacity.
59.6 NO ILLEGAL TRANSACTIONS: This Account and any ATM, debit card and/or the Bank Account Card issued by the Bank may be used for legal transactions only.
59.7 CASH TRANSACTION REPORTING: To help law enforcement agencies detect illegal activities, the law requires all financial institutions to gather and report information on some types of cash transactions. If the information we need to complete the report is not provided, we are required to refuse to handle the transaction. If you have any questions regarding these rules, please contact your local Internal Revenue Service office.
59.8 UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT (UIGEA) OF 2006: The UIGEA, signed into law in 2006, prohibits any person engaged in the business of betting or wagering (as defined in the UIGEA) from knowingly accepting payments in connection with the participation of another person in unlawful internet gambling. You represent and agree that you will comply with the UIGEA and relevant regulations. You are prohibited from processing illegal gambling transactions through your Account or your relationship with the Bank will be terminated.
59.9 IMPRACTICABILITY OF PERFORMANCE: The Bank shall be excused from failing to act or any delay in acting caused by interruption of transmission or communication facilities, act of God, fire, terrorism, flood, equipment failure, war, emergency conditions, any act or failure to act by a third party or entity, or any other circumstances beyond the Bank’s reasonable control.
59.10 GENERAL PROVISIONS: If any section, provision, term or condition of this Agreement is deemed invalid or unenforceable, the enforceability of all remaining provisions shall not be affected.
English is the controlling language of the relationship between you and the Bank. The Bank may translate its forms, disclosures, and advertisements into another language for your convenience. However, if there is a discrepancy between the Bank’s English language materials and the materials provided in another language, the English language version is conclusively deemed to be controlling, unless there is a governing Texas or federal law, rule or regulation that specifically provides for a different result.
59.11 GOVERNING LAW: This Agreement shall be governed and interpreted in accordance with all applicable federal laws and the laws of the State of Texas. In addition, it is subject to applicable clearinghouse rules and regulations. If, any document related to any transaction between the Bank, you or any Authorized Signer, including this Agreement, or any terms or provisions of such document are in conflict with applicable laws, then such document shall be automatically reformed and modified as to comply with applicable law, without the necessity of execution of any amendment or new document. The Bank is under no duty to act on instructions or requests, which the Bank reasonably believes may cause the Bank to be exposed to any civil or criminal liability.
59.12 SUPPORTING DOCUMENTATION: The Bank is authorized to accept as valid and correct and to rely on any and all documents and records presented in connection with the opening and closing of or conducting any transaction(s) on this Account and is not obligated to determine if actual authority exists for any person to act on behalf of you.
59.13 RULES OF CONSTRUCTION: Section titles are for convenience only and are not to be construed as part of this Agreement or as a limitation on a particular section to which they refer.
Unless it would be inconsistent to do so, words and phrases used in this Agreement should be construed so that the singular includes the plural and the plural includes the singular. Unless otherwise expressly agreed in writing, the Bank’s relationship with you will be that of debtor and creditor. No fiduciary, quasi-fiduciary or other special relationship exists between you and the Bank.
59.14 NO ORAL REPRESENTATIONS/ENTIRE AGREEMENT:
(a) You expressly represent and warrant that you did not rely on any representation, promise or other statement of the Bank or its agents and employees relating to this Agreement or the subject matter thereof, except as expressly set forth herein, and it is your express intent to fully disclaim and disavow reliance on any such representation, promise or other statement.
(b) This Agreement contains the entire, complete and final agreement between the parties with respect to the subject matter hereof and supersedes all prior written or oral discussions, negotiations, representations, warranties and agreements, if any, between them with respect to the subject matter hereof, except as may be expressly stated herein.
59.15 LIMITATIONS OF LIABILITY:
(a) THE BANK SHALL NOT BE RESPONSIBLE FOR YOUR OR ANY OTHER PERSON’S ACTS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO THE ACTS OR OMISSIONS OF ANY AUTHORIZED SIGNER, CLEARING HOUSE, FINANCIAL INSTITUTION, CORRESPONDENT, OR THIRD-PARTY VENDOR OR SUPPLIER.
(b) THE BANK SHALL NOT BE LIABLE FOR THE BANK’S ACTS OR OMISSIONS IN ACCORDANCE WITH THIS AGREEMENT OR YOUR INSTRUCTIONS, THE INSTRUCTIONS OF AN AUTHORIZED SIGNER’S, OR THE INSTRUCTIONS OF AN AGENT OF YOU OR OF AN AUTHORIZED SIGNER.
(c) THE BANK SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, STATUTORY MULTIPLE, INCIDENTAL, NONECONOMIC, OR INDIRECT LOSS OF DAMAGE THAT YOU MAY SUFFER OR SUSTAIN IN CONNECTION WITH THE ACCOUNT GOVERNED BY THIS AGREEMENT.
59.16 GUARANTY AGREEMENT: Each Authorized Signer agrees to be jointly and severally liable for any and all obligations or liabilities arising out of or relating to this Deposit Account Agreement, including, but not limited to, fees, service charges overdrafts, legal process, and setoff, whether incurred personally by the Authorized Signer, incurred by another Authorized Signer, incurred by operation of this agreement, or incurred otherwise.
59.17 INDEMNITY: YOU AND EACH AUTHORIZED SIGNER AGREE TO INDEMNIFY THE BANK AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES (AND THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES) (TOGETHER THE “INDEMNIFIED PARTIES”) AGAINST ANY LOSS, LIABILITY, OR EXPENSE, INCLUDING ITS ATTORNEY’S FEES, COSTS AND EXPENSES, RESULTING FROM OR ARISING OUT OF ANY ACTS OR OMISSIONS OF THE BANK AUTHORIZED BY THIS AGREEMENT, ANY BREACH OF ANY OF YOUR OR AUTHORIZED SIGNER’S REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, OR ANY BREACH OF ANY OTHER OBLIGATION OF ANY OF YOURS OR OF AN AUTHORIZED SIGNER. YOU AND EACH AUTHORIZED SIGNER FURTHER AGREE TO INDEMNIFY THE INDEMNIFIED PARTIES AGAINST ANY LOSS, LIABILITY, AND EXPENSE, INCLUDING ATTORNEY’S FEES, COSTS, AND EXPENSES, RESULTING FROM OR ARISING OUT OF ANY CLAIM OF ANY PERSON THAT BANK IS RESPONSIBLE TO, OR FOR ANY ACT OR OMISSION MADE BY YOU OR AN AUTHORIZED SIGNER.
59.18 NO WAIVER: If the Bank fails to exercise any right of the Bank under this Agreement or has failed to require strict compliance with this Agreement or any part thereof, or has failed to declare to breach of this Agreement, the Bank’s prior failures to act are not a waiver of the Bank’s rights or privileges under this Agreement, and the Bank may exercise such right and may insist on strict compliance and full enforcement in the future.
59.19 JURY TRIAL WAIVER: THE ACCOUNT OWNER AND THE BANK, FOR THEMSELVES AND EACH OF THEIR RELATED ENTITIES, SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY OF ALL DISPUTES, CONTROVERSIES AND CLAIMS BY, BETWEEN OR AGAINST EITHER THE ACCOUNT OWNER OR THE BANK THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT.
60. BUSINESS AND OTHER NON-PERSONAL ACCOUNTS: If you are an entity, including a corporation, professional corporation, limited liability company, partnership, unincorporated association, trust, partnership, limited partnership, sole proprietorship, or other legal entity, however organized, you, each Authorized Signer, and each person signing this Agreement or any other account document, represent and warrant that (i) such person(s) is fully authorized to execute all documents executed, including the Deposit Account Agreement, and addendums, thereto, and any and all checks, drafts, withdrawal or transfer documents, payment orders or amendments or cancellations thereof, or any other items presented, in the capacity stated therein; (ii) you have delivered to the Bank all documents necessary to evidence such authority, and (iii) you will furnish any additional documents which may be requested by the Bank in such form as the Bank may request. The Bank is not required to recognize any resolution of any entity affecting this Account that is not in a form approved by the Bank and its legal counsel. Endorsements of an entity for deposit may be written, stamped or affixed by non-manual means without designation of the person making the endorsement. You guarantee and warrant all prior endorsements on all checks, drafts, other items, or withdrawal or transfer documents, or other instruments that previously have been delivered to the Bank. the Bank is authorized to honor any and all checks, drafts, other items, withdrawal or transfer documents payable to any officers, employees, directors, principals or agents of you whether the presenter is signing or countersigning same, whether presented for cash or for credit to any other account, including the personal account of such officer, employee, director, principal or agent, and the Bank is not required to make any inquiry concerning such items or the person’s actual authority to act on behalf of you.
The authority herein conferred upon each Authorized Signer shall not be revoked, altered or changed in so far as the Bank is concerned and the Bank shall not be affected or bound by any revocation, alteration or change of any authority until written notice of such revocation, signed by the your President, Managing Partner, Trustee(s), Managing Member or chief principal, shall have been delivered to your Account Officer at his/her the Banking offices and the Bank has sufficient time to act upon such revocation. You agree that you have the sole responsibility to provide a current and proper Corporate/Entity Resolution on the Bank’s approved form regarding authority of its agents, representatives, officers, members, or employees to conduct your Banking business. You acknowledge and agree that the Bank may rely on the terms and conditions of this Deposit Account Agreement (and any and all amendments and addendums hereto) to determine who is properly authorized by you to conduct your Banking business regarding this Account, and further agrees that you are estopped from asserting any claim against the Bank which may accrue or arise due to any conflict, if any, which may exist now or at any time in the future, between any Corporate/Entity Resolution delivered to the Bank and this Deposit Account Agreement if the Bank acts in compliance with any of the then current Corporation/Entity Resolutions or this Deposit Account Agreement.
You represent and warrant that any account opened for or in the name of a business organization (including but not limited to a corporation, limited liability company, or partnership), proprietorship, or association is not established, maintained or used for personal, family or household purposes, and shall not otherwise be characterized for any reason as a “consumer” account.
Your account fees and terms may differ from those of other customers with the same type of account, based on our assessment of your overall relationship with us.
60.1 SPECIAL REPORTING OBLIGATION FOR TEXAS BUSINESS DEPOSIT CUSTOMERS:
(i) Background: Texas Finance Code Chapter 277 provides that Texas business deposit customers must provide certain information to the Bank when opening their account. For purposes of this Agreement, you are a “Texas business deposit customer” if you maintain a business deposit account with the Bank and you are a “business” as defined in Texas Finance Code Chapter 277.001(1), which includes a sole proprietorship, partnership, corporation, or any other legal entity formed for the purpose of making a profit. This law also provides that the Bank must request that the Texas business deposit customers provide the Bank with updated information at least annually.
(ii) Agreement of all Texas Business Deposit Customers: By opening and maintaining a business account with the Bank, you agree to provide any updated information as required by the Texas Finance Code Chapter 277 (described below) no later than December 31st of each year during which you maintain your account at the Bank. You do not need to make any annual report if the information you previously provided has not changed during the preceding year. You only need to make any changes in the information described below during the preceding year.
(iii) Required Information: If your business is a sole proprietorship, the Bank is required by Chapter 277 to request that you provide updated information for the following:
• Business owner’s name
• Physical address of the business
• Business owner’s home address
• Business owner’s Texas driver’s license number or Texas DPS ID card number
If your business is a corporation, partnership, limited partnership or limited liability company, the Bank is required by Chapter 277 to request that you provide updated copies of the business’s certificate of incorporation, partnership agreement, and certificate of limited partnership or articles of organization, as appropriate. If such business has adopted an assumed name, the Bank is required by Chapter 277 to request that you provide a copy of the assumed name certificate.
Please include the title of the account and the account number with any information updates.
Please send information updates to:
BankMD, a Division of TransPecos Banks, SSB,
P.O. Box 1437
Westerville, OH 43086
60.2 LEGAL ACTION RELATING TO BUSINESS/COMMERCIAL ACCOUNTS: In the event any legal action in a court of competent jurisdiction or an arbitration proceeding is commenced in connection with the enforcement of, or any declaration of, a right, duty or obligation under this Agreement, or the assertion of any controversy or claim involving in any way, relating to, or arising out of a business or commercial account, whether sounding in contract, tort, or statute, at law or in equity, the Bank is entitled to recover all reasonable and necessary attorney’s fees, paralegal costs (including allocated costs for in-house services), arbitration costs, fees or expenses, costs of court, expert witness fees and costs, discovery costs, travel expenses, and any and all other necessary costs or expenses incurred in connection with any such action or proceeding, in an amount determined by the trier of fact.
For commercial Bank Account Cards, to the extent allowed by law, any transaction, including without limitation, transfers or withdrawals of cash from, direct debits to or from, or administrative holds on, this Account, or any other use of any Bank Account Card, together with its designated P.I.N., is hereby agreed to be, and is deemed to be, an authorized transaction benefiting you, and the Bank is relieved of any liability for processing such transactions, regardless of whether it was properly payable from or debited to this Account and whether you received any benefit. It is agreed and stipulated that the Bank, by the use of ordinary care at all times in the Bank Account Card transactions cannot protect or maintain security of the Bank Account Cards or their designated P.I.N.s, or immediately detect the loss of possession of or control over, or any misuse or unauthorized use of, the Bank Account Cards and their designated P.I.N.s. The Unauthorized Transfers provisions and Error Resolution Notice provisions of the Electronic Funds Transfer Agreement do not apply to Business Accounts or commercial Bank Account Cards.
For business or commercial accounts, Mastercard operating regulations may reduce your liability for unauthorized transactions to zero if you exercised reasonable care in safeguarding the Card from risk of loss or theft. This liability limitation only applies to certain Mastercard Bank Account Cards issued for use by a small business. This limitation may not you were negligent or grossly negligent in handling the account or card or if there is substantial evidence that you engaged in fraud. This limitation may not apply to unauthorized transactions if you fail to notify the Bank within 60 days of receiving the first statement that shows the unauthorized transactions. The following transactions are not unauthorized transactions:
● transactions allegedly conducted by a business co-owner
● transactions allegedly conducted by the cardholder or a person authorized by the cardholder
● transactions allegedly conducted by any other person with an interest in or authority to transact business on the account.
60.3 DEPOSITOR ENCODED ITEMS: Items not encoded by the Bank are nonconforming items and are your sole responsibility. Any item presented for payment, whether check, draft, withdrawal or transfer document, or other item or instrument of payment, must conform in all respects, including its encoded message, to the Bank’s automated bulk filing processing system. Failure of any item to conform to the Bank’s automated bulk filing processing system is agreed to be the sole cause of the Bank’s payment of, or failure to pay, each nonconforming item.
If the Bank’s equipment is unable to read what it considers to be a significant number of your items and they are rejected, the Bank may charge you additional fees. If the Bank charges you more, it may send you a notice. If there is an encoding error that results in costs or losses to the Bank, you agree to reimburse the Bank (and we may charge your Account) for our claims, costs, losses and damages, including attorney’s fees.
60.4 CASHING OR PURCHASING OF CHECKS OR OTHER NEGOTIABLE INSTRUMENTS: If you are in the business of cashing or purchasing checks or other negotiable instruments then, in addition to your statutory and other contractual warranties, you also hereby warrant to the Bank that each such cashed or purchased item you deposit with us contains the genuine and authorized signature of its purported drawer or maker and the appropriate endorsement of all payees and prior endorsees. That warranty survives any provision or final payment you may receive on the item, and the Bank may debit your account for the amount of any settlement we may make with the drawee the Bank or other party (up to the amount of the applicable item) with respect to any item you deposit in breach of that warranty.
BankMD Mobile Terms of Use Effective Date: March 25, 2018
BankMD Online & Mobile Application Terms and Conditions.
Please read the following terms and conditions very carefully. If you do not agree with the following terms and conditions, do not download or install this software. By downloading, installing or using this software or any portion thereof, you agree to the following terms and conditions.
Use of the BankMD Application
This agreement (“Terms”) is entered into between you and NYMBUS, Inc. (“NYMBUS”), the program partner responsible for managing the BankMD Accounts (“BankMD”). Subject to the provisions of these Terms, you are hereby granted the non-transferable right to use this software (“BankMD Application”) solely for personal, non-commercial purposes. You may not use the BankMD Application in any manner that may impair, overburden, damage, disable or otherwise compromise (i) NYMBUS’ services; (ii) any other party’s use and enjoyment of NYMBUS’ services; or (iii) the services and products of any third parties including, without limitation, any device through which you access the BankMD Application (the “Authorized Device”). You agree to comply with all local laws and regulations governing the downloading, installation and/or use of the BankMD Application, including, without limitation, any usage rules set forth in the online application store terms of service. From time to time, NYMBUS may automatically check the version of BankMD Application installed on the Authorized Device and, if applicable, provide updates for the BankMD Application (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the BankMD Application. By installing the BankMD Application, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the BankMD Application and Updates will be governed by these Terms (as amended by any terms and conditions that may be provided with Updates). NYMBUS reserves the right to temporarily disable or permanently discontinue any and all functionality of the BankMD Application at any time without notice and with no liability to you. For the avoidance of doubt, agreement to these Terms is solely between NYMBUS and you. If you need to contact NYMBUS about the BankMD Application, you may do so by calling 1-888-534-3509 or by emailing support@bankmd.com.
Privacy Policy
As a condition of using the BankMD Application, you acknowledge that additional agreements may be in place that govern your relationship with NYMBUS, including but not limited to the BankMD Account Agreement, Privacy Policy, and Online Privacy, Security & Information Gathering Policy, each of which is hereby incorporated by reference. You acknowledge and agree that these agreements may be updated from time to time, without prior notice. Any such change(s) will be effective as soon as NYMBUS posts a revised version of the applicable agreement. In the event of an otherwise irreconcilable conflict between these Terms and other agreements, these Terms will govern, solely with regard to the conflicting provisions and solely to the extent of such conflict. NYMBUS may track and archive certain information regarding your use of the BankMD Application (“Use Information”). Use Information does not reveal your personal identity. Use Information may be stored and processed in the United States or any other country in which NYMBUS or its agents maintain facilities. By using the BankMD Application, you consent to the collection of your Use Information and to any transfer of your Use Information outside of your country.
Proprietary Rights
You hereby acknowledge that NYMBUS owns all rights, titles and interest in and to the BankMD Application and to any and all proprietary and confidential information contained therein (“BankMD Information”). The BankMD Application and BankMD Information are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree that you will not (and will not allow any third party to) (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer or disassemble the BankMD Application or otherwise attempt to derive source code from the BankMD Application; (ii) copy, distribute, transfer, sell or license the BankMD Application; (iii) transfer the BankMD Application to, or use the BankMD Application on, a device other than the Authorized Device; (iv) take any action to circumvent, compromise or defeat any security measures implemented in the BankMD Application; (v) use the BankMD Application to access, copy, transfer, retransmit or transcode Content (as defined below) or any other content in violation of any law or third party rights; (vi) remove, obscure, or alter NYMBUS’ (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through the BankMD Application. Content made available through the BankMD Application (“Content”) is protected by applicable intellectual property rights and is the property of NYMBUS, its third party licensors and partners (as applicable), and other entities that provide such content to NYMBUS. You may not (or enable others to) copy, distribute, display, modify, or otherwise use the Content except as it is provided to you through the BankMD Application hereunder. NYMBUS and its licensors make no representations or warranties regarding the accuracy or completeness of the Content.
Export Restrictions
NYMBUS does not represent that the BankMD Application is appropriate or available for use in any geographical location. Any entity choosing to use the BankMD Application is solely responsible for compliance with all applicable laws. The BankMD Application is subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Burma, Cuba, Iran, North Korea, Sudan, Syria, Libya, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons, and specified persons involved in the manufacture or sale of Improvised Explosive Devices (together referred to as “U.S. Prohibited Party Lists”). By downloading and/or using the BankMD Application, you represent and warrant that you are not (a) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or (b) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.
Termination
You may terminate acceptance of these Terms at any time by permanently deleting the BankMD Application in its entirety from the Authorized Device, whereupon (and without notice from NYMBUS) any rights granted to you herein will automatically terminate. If you fail to comply with any provision of these Terms, any rights granted to you herein will automatically terminate. In the event of such termination, you must immediately delete the BankMD Application from the Authorized Device.
Indemnity
You agree to hold harmless and indemnify NYMBUS and its subsidiaries, affiliates, officers, agents, and employees (and their subsidiaries, affiliates, officers, agents, and employees) from and against any claim, suit or action arising from or in any way related to your use of the BankMD Application or your violation of these Terms, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, NYMBUS will provide you with written notice of such claim, suit or action.
Entire Agreement; Revisions to Terms.
NYMBUS may, from time to time, modify these Terms. Such modifications shall be effective as soon as the modified version of the “BankMD Mobile Terms of Use” is posted in the online application store or any other authorized BankMD Application distribution location. You can determine when these Terms were last revised by referring to the “LAST UPDATED” legend at the top of the then-current version of the “BankMD Mobile Terms of Use” in the online application store or any other authorized BankMD Application distribution location. Your use of the BankMD Application following such changes constitutes your acceptance of the revised version of the “BankMD Mobile Terms of Use” in the online application store or any other authorized BankMD Application distribution location.
This Agreement is effective as of 3/25/2019
ONLINE BANKING AGREEMENT
1. Introduction and Definitions.
In this Agreement, the words “Bank”, “we”, “us” or “our” mean BankMD, a division of TransPecos Banks, SSB. “You” or “your” or “Customer” means the customer executing or accepting this agreement, and each owner or joint owner of your account, and any person you have authorized to access your account. “Account” and “Accounts”, including loan accounts, mean the accounts tied to the User ID and Password you use to access to your accounts through Online Banking. “Online Banking” means Online Banking Services accessed through the Internet on a computer and modem or other access device with internet browser software. Your Online Banking Profile will mean the list of the accounts which you may access through the Internet. Not all services are available for all account types.
This Agreement is incorporated with and made a part of your Deposit Account Agreement with us. If the terms and conditions of this Agreement, including any subsequent agreement, conflict with the terms and conditions contained in any other agreement between the Bank and you, the terms and conditions of this Agreement shall be controlling with respect to Online Banking matters to the extent of the conflict.
2. Computer Equipment and Software.
You understand that to use Online Banking you need a computer with access to the Internet. You must first obtain access to the Internet with compatible hardware, software and web browser. You must use a web browser that supports adequate security measures including SSL encryption technology or additional security measures as the Bank may require. Sample suitable browsers are the most current versions of Chrome, Firefox or Safari. The Bank also requires that you have Adobe Acrobat Reader version 8.0 or newer to access pdf documents. Obtaining and maintaining adequate Internet access is your responsibility, and you are solely responsible for all Internet Service Provider (“ISP”) fees and costs. You understand that the Bank is not responsible for any computer virus or related problems that may be associated with your use of the Internet in general or your use of Online Banking services via the Internet.
3. E-Sign Disclosures; Online Banking E-Statements.
To view account statements and other electronic notices online, you need the same hardware and software that are required to use for Online Banking as stated in Section 2. Your statements and other electronic disclosures will be provided as an Adobe Portable Document Format (PDF) file. To access and retain a PDF file, you need the free Adobe Acrobat Reader (version 8 or higher) or comparable software.
You previously consented and continue to consent to the electronic delivery of any and all documents we send in connection with your relationship with us, including, but not limited to, your periodic account statements, disclosures, transaction notices and receipts, notices, contract amendments, and any other documents. You consent to using electronic signatures to sign any such documents.
You may request a paper copy of any electronically provided document by contacting 1-888-534-3509. Charges may apply for paper copies. Upon our request, you agree to sign a non-electronic version of this Agreement or to provide written signature samples.
Electronic communications received from you after having accessed Online Banking using your User ID and Password will be deemed to be valid and authentic and you will be deemed to intend and agree that these electronic communications will be given the same legal effect as your written and signed paper communications. You agree that electronic copies of communications are valid.
4. Online Banking Access and Authorization.
To access Online Banking, you will need to login with your unique username and password (“User ID and Password”) login credentials. You must keep your User ID and Password confidential. We will verify your identity and the authenticity of any order request or instruction initiated through Online Banking by the user’s presentation of valid login credentials, which include your User ID and Password. DO NOT GIVE YOUR USER ID OR PASSWORD TO ANOTHER PERSON. You acknowledge and understand that any person presenting valid login credentials as described in this section will be deemed to be you. You acknowledge and understand that any person presenting your valid login credentials will be deemed to be authorized by you to access your account to initiate or approve internal and external funds transfers, view your account information, a wire transfer request, change your address, or to complete any other action available through Online Banking, whether or not that person is actually authorized to do so. All electronic communications received from a person that has provided your valid login credentials will be deemed to be valid and authentic. We may in our discretion, but are not obligated to, require presentation of additional authentication credentials before allowing access to your account on a case by case basis.
If you give your login credentials to another person, you authorize that person to access your account and take any action you are authorized to take regarding your account. To withdraw such authorization from another person, you must notify us in writing, and you must change your User ID and Password.
5. Use of Email Address.
We may send messages relating to Online Banking to the most recent email address we have on file for you and notify you that responses to your payment inquiries or customer service inquiries are available, or as otherwise described in any applicable agreements governing Online Banking. The Bank will not, however, include any account numbers, User ID and Password, or other non-public personal information in any email response to you. If, for any reason your email address changes or becomes disabled, it is your responsibility to contact the Bank immediately so that we can continue to provide you with automated messages.
6. Confidentiality and Security.
We require the use of browsers that provide encryption using 128-bit key. The higher the level of encryption, the harder it is for unauthorized persons to read information. Major browsers (Chrome, Safari, etc.) support 128-bit encryption versions that are available for download from their respective Websites without charge. The encryption level may be called cipher strength or refer to cryptography.
You understand that security procedures implemented by the Bank are for the purpose of verifying the authenticity of the instructions transmitted to the Bank by you (“Instructions”), and not for the purpose of detecting errors in such Instructions and the Bank shall not be liable for any failure to detect errors in any Instruction. Such security procedures include (i) unique login credentials, and (ii) encryption. You agree that this procedure constitutes a commercially reasonable method of providing security against unauthorized Instructions. You agree to be bound by any Instruction issued by you and received and verified by the Bank in accordance with such security procedures, and you shall indemnify and hold the Bank harmless against any loss suffered or liability incurred by, or arising from, the execution of Instructions in good faith and in compliance with security procedures.
7. Account Ownership/Accurate Information.
You represent that you are the legal owner of the accounts linked to Online Banking, and that all the information you provide to us in connection with Online Banking, including your email and contact information, is accurate, current and complete, and that you have the right to provide such information to us for using Online Banking. You agree not to misrepresent your identity or your account information. You will keep your account information up to date and accurate. When using a mobile device to access Online Banking, you represent that you are an authorized user of such mobile device.
8. Account Access.
None of our employees will contact you via phone or email requesting your account number, User ID, or Password. If you are contacted by anyone requesting this information, do not release your information and contact the Bank immediately in person or by telephone.
Use of your User ID and Password will indicate to the Bank your acceptance of this Agreement. You agree to protect your User ID and Password from unauthorized use by not divulging the User ID or Password to anyone or in any way allowing the User ID or Password to be obtained by someone. Based upon certain activity, you may not be able to retrieve your Password. If you are unable to retrieve your Password and you have recurring bill payments set up, you must contact 1-888-534-3509.
We reserve the right, under certain circumstances, to deny access to any one or more deposit and/or loan accounts or to Online Banking, or to deny the processing of transactions, in order to maintain or restore security to our Website and systems. We may also restrict or limit access to Online Banking services if we reasonably believe your login credentials have been or may be obtained or are being used or may be used by an unauthorized person(s). You should not use email as a means of communication to ask questions about your account(s) or maintenance and/or problem resolution issues, or to give comments regarding your satisfaction with Online Banking. Email is not a secure method of communicating over the Internet and we recommend you do not send confidential information by email. We recommend all such communication be sent via the secure “Messages” feature available within Online Banking. We also do not recommend using email to communicate matters requiring immediate attention as delivery of such correspondence may be lost or delayed. You should communicate matters requiring the Bank’s immediate attention by telephone.
You cannot use email to initiate transactions on your account(s). For banking transactions, you must use the appropriate Online Banking service or by calling Customer Service at 1-888-534-3509. If you discover any discrepancies, you must notify the Bank immediately.
9. Services Available Through Online Banking.
Online Banking allows you to conduct the following activities online through our Online Banking website:
● View account balances and transaction history
● View images of checks and deposits
● Internal funds transfers between your accounts at BankMD, a division of TransPecos Banks, SSB
● External transfers to and from accounts you own at other institutions
● Person to Person transfers
● Stop payment orders
● Bill Pay
Services are limited to the extent and subject to the terms as noted below. Services are also subject to service agreements, as applicable.
Commercial account holders must contact us for our written authorization prior to accessing mobile banking or mobile deposits. Commercial account holders must process commercial transactions using commercial purpose accounts. You agree that you will only use consumer purpose accounts for consumer purposes.
Federal law limits your ability to transfer funds from certain accounts as well as the number of times you may debit certain types of accounts. The number of withdrawals you may make from a savings or money market account is six per statement cycle. You should refer to the Deposit Account Agreement for more details regarding these legal limits and the service charges and penalties related to overstepping these restrictions and limitations. Transfers made using Online Banking services are included in calculating the number of transfers from affected accounts. There is a maximum dollar limit on any transfer, which is the available balance, and/or credit line or overdraft courtesy availability, if applicable to your account type.
With regard to transfers between your Bank accounts, all internal funds transfer instructions received before 5:00 p.m. Central Time on a business day will be posted to your account the same day. For funds transfer instructions received after 5:00 p.m. Central Time, the Bank will, in its sole discretion, attempt give effect to the transfer immediately or on the same business day. However, the Bank cannot guarantee that a funds transfer instruction received after 5:00 p.m. will be transferred on the same business day. Funds transfer instructions received after 5:00 p.m. Central Time on a business day or at any time on a Saturday, Sunday or banking holiday may, in the sole discretion of the Bank, be considered as having been received the next business day. The Bank’s business days are Monday through Friday, excluding federal holidays (“Business Days”).
You understand that you cannot cancel an immediate internal funds transfer or external funds transfer from your Bank account after it has been requested and the transfer information has been transmitted to the Bank. In order to cancel future-dated payments, you must log into Online Banking and follow the directions provided for canceling transfers. You may also request to cancel a future-dated transfer by calling the Bank at 1-888-534-3509 or writing us at P.O. Box 1437 Westerville, OH 43086. The Bank must actually receive a cancellation request via telephone or in writing at least three (3) Business Days before the transfer is scheduled. If you call, we may ask you to put your request in writing and get it to us within fourteen (14) days after you call. If you do not provide the required notice of cancellation, the Bank will not be liable for any losses or damages incurred by you if the transfer is not cancelled. The Bank is not responsible for any transfers made before it has a reasonable opportunity to act on your cancellation notice.
10. Account Access Services.
Account information provided to you as part of the BankMD Online Banking Services, may be deemed reliable but is not guaranteed and is not an official record of your Account or its activity. Your Account statement(s) furnished to you in electronic format will remain the official record of your Account(s). Unless otherwise indicated, the balance information displayed through BankMD Online Banking Services is the current available funds balance for your Account. Transaction history that you obtain through the BankMD Online Banking Services is current as of the close of business on the preceding Business Day.
11. BankMD Online.
Without limiting any other provisions herein, you agree that if you use personal financial management software (“PFMS”), such as Microsoft® Money, Quicken®, Quickbooks®, or similar software, your use of any PFMS is solely at your own risk. You assume any and all risk of liability, fraud, damages, claims, privacy violations, or any other harm that arises in connection with your use of any PFMS. We make no representations whatsoever regarding any PFMS. We do not grant any rights, licenses or permissions to use any PFMS, and any such rights, licenses or permissions must be obtained by the respective third party.
12. Transaction Limits.
The Bank may establish transaction and item limits with regard to any service described in this Online Banking Agreement. The Bank will establish the amounts and nature of transactions or item limits and may revise the limits periodically or from time to time. The Bank may also establish other limits and restrictions on the services described in this Agreement. Transaction limits may vary for each service. The Bank may establish and revise these limits in its sole discretion with or without notice to you. You agree that any transaction you make under this Agreement will be subject to such limits.
13. Text and Mobile Banking.
By entering into this Agreement, or by using the Online Banking Services, you provide your express consent to allow us to contact you to provide Online Banking Services, including sending messages and notifications to any mobile device number that we have on file for you. Such activities may include, but are not limited to, providing account alerts, confirming account activity, confirming mobile remote capture deposits, undertaking fraud prevention you requested, servicing, or for any other purpose as provided in this Agreement. You may receive information and alerts regarding your bank account balances through text messages to your mobile phone. You are responsible for designating the phone number to which you wish your banking information to be sent. Any messages or instructions received by the Bank from your mobile phone whether by voice or text will be deemed to be from you. The Bank may, in its sole discretion, act on such instructions or messages whether or not actually authorized by you.
You may contact the Bank to decline (i.e. “opt out”) receiving Bank messages sent to your mobile phone or other mobile device by: (i) texting STOP as a reply to any message we send to your mobile phone or other mobile device; (ii) sending your request via secured message through Online Banking; or (iii) sending your request in writing to [Online Banking address]. All requests to opt out of this service must include the name on the account(s), account number(s) and your mobile phone number. Include no other correspondence with this request.
14. Our Responsibility.
The Bank, or any third party acting as the Bank’s agent, is responsible only for performing services expressly provided for in this Agreement. If the Bank does not properly complete a transfer to or from your account on time or in the correct amount according to your proper and timely Instructions, we will be liable for the amount of any actual losses or damages incurred by you resulting directly from such failure. However, neither the applicable third-party service provider nor the Bank will be liable:
● If, through no fault of the Bank, you do not have adequate money in the account to complete the transaction as instructed, or if account has been closed or has become dormant,
● If you close a payment account and do not identify a new payment account,
● If you have not properly followed software or procedural instructions on how to make a transfer,
● If you have not given complete, correct and current instructions so that a transfer can be made,
● If you do not authorize a bill payment soon enough for your payment to be made and properly credited by the payee by the time it is due,
● If the transfer or payment would go over the credit limit on your credit line and/or exceed any availability of your overdraft courtesy,
● If a timely bill payment is made but the payee nevertheless does not receive the payment or does not credit your payment promptly after receipt,
● If there is a hold on your account, or if access to your account is blocked, in accordance with banking policy,
● If withdrawals from your account have been prohibited by a court order, such as a garnishment, levy or other legal process which prevents the Bank from making a transfer,
● If the Bank or our agent reasonably believe that a transaction may be unauthorized and based thereon the transaction is not completed,
● If the Bank’s or the Bank’s agents’ equipment and/or software were not working properly or were temporarily unavailable when you attempted to authorize a transfer or bill payment and this situation should have been apparent to you when you attempted the payment or transfer, or
● If circumstances beyond the Bank or the Bank’s agent’s control prevent making a transfer or payment, despite reasonable precautions that have been taken. Such circumstances include but are not limited to computer failure, telecommunication outages, delays caused by payees, strikes or delays and other labor or civil unrest, fires, floods, and other natural or man – made disasters.
There may be other exceptions to our liability as provided in this Agreement, your Deposit Account Agreement, loan agreement, or service agreement.
In no event will the Bank be liable for damages in excess of your actual loss due to our failure to complete a transfer.
15. Reporting Unauthorized Transactions, Loss of Password.
You may access your periodic statements for your accounts online. You agree to review your statements upon receipt for accuracy. Tell us AT ONCE if you believe an unauthorized transaction may have been conducted from your account(s), if you believe another person has improperly obtained your User ID and Password, if you believe someone has transferred or may transfer money from your account without authorization, or you suspect fraudulent activity on your account. If you have any such activity to report, you should contact the Bank by telephone.
If your User ID and Password have been lost or stolen, someone has attempted to use your Online Banking information without your consent, your accounts have been accessed, you have reason to believe someone has your User ID and Password information or someone has transferred money without your permission, you must notify us immediately. Advising us right away may help you reduce possible losses. You could lose all the money in your designated deposit accounts.
16. Service Termination, Cancellation, or Suspension.
You may terminate this Agreement by giving 10 days’ written notice to us. However, you acknowledge that, by terminating this Agreement, you will lose access to your primary means for accessing your account funds and documentation. You acknowledge that if you terminate this Agreement, we may, in our sole discretion, close any savings or checking account you have with us and may mail any remaining funds due to you to the last address you provided to us. You are responsible for assuring that outstanding payment requests are cancelled before terminating this Agreement. Any payment that has begun processing a) before you cancelled the payment request or b) before we have had a reasonable opportunity to give effect to the termination of this Agreement will be processed by us. You agree that we may suspend your use of any one or more of the Online Banking services and any or all payment or transfer requests at any time and for any reason or no reason. Neither termination, cancellation nor suspension shall affect your liability or obligations under this Agreement. We, in our sole discretion, reserve the right to terminate this Agreement or access to Online Banking for any reason or no reason upon giving notice to you.
17. Payment for Services.
The Customer shall pay the Bank charges for the services provided in connection with this Online Banking Agreement, as set forth in the Bank’s Truth in Savings Disclosure and Fee Schedule. All fees and services are subject to change upon thirty calendar days prior written notice from the Bank to the Customer. Such charges do not include, and the Customer shall be responsible for payment of, any sales, use, excise, value added, utility, or other similar taxes relating to such services, and any fees or charges provided for in the agreement between the Bank and the Customer with respect to the account.
18. Cooperation in Loss Recovery Efforts.
In the event of any damages for which the Bank or the Customer may be liable to each other or to a third party pursuant to the services provided under this Online Banking Agreement, the Bank and the Customer will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.
19. Waiver.
The Bank may waive enforcement of any provision of this Online Banking Agreement only in writing. Any such waiver shall not affect Bank’s rights with respect to any other transaction or modify the terms of this Online Banking Agreement.
20. Use of Third Parties.
The Bank’s ability to provide Online Banking Services herein depends on its ability to provide access to third-party networks and other third-party services. In the event the Bank determines, in its sole discretion, that it is unable to provide third-party network or services access, the Bank may discontinue Online Banking services or may provide the service through an alternate third-party network or service and shall have no liability for the unavailability of the service. Any third-party service provider used by the Bank is an independent contractor and not the Bank’s agent. No clearing house, financial institution, or other instrumentality used in connection with the Online Banking services or used to effectuate the Customer’s requests or orders shall be deemed Bank’s agent.
21. Bank Responsibilities; Liability; Limitations on Liability; Indemnity.
In the performance of the services required by this Online Banking Agreement, the Bank shall be entitled to rely solely on the information, representations, and warranties provided by the Customer pursuant to this Online Banking Agreement and shall not be responsible for the accuracy or completeness thereof. The Bank shall be responsible only for performing the services expressly provided for in this Online Banking Agreement and shall be liable only for its negligence or willful misconduct in performing those services. Except for the remedies provided expressly herein for breach of this Online Banking Agreement, the Customer agrees that the Bank will have no liability whatsoever for any loss, damage, or claim (collectively, a “Claim”) arising out of this Agreement in accordance with the terms of this Online Banking Agreement, EVEN IF SUCH CLAIM ARISES, IN WHOLE OR IN PART, FROM THE BANK’S NEGLIGENCE.
The Bank shall not be responsible for the Customer’s acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or authorization of any deposit received from the Customer) or those of any other person, and no such person shall be deemed the Bank’s agent.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE BANK AND ITS AFFILIATES AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, ABOUT ANY OF THE SERVICES, ANY PROCESSING EQUIPMENT, OR ANY PROCESSING SOFTWARE DESCRIBED IN THIS AGREEMENT, AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
The Bank shall be liable only for the Customer’s actual damage; in no event shall the Bank be liable for any consequential, special, incidental, punitive, or indirect loss or damage which the Customer may incur or suffer in connection with this agreement, whether or not the likelihood of such damages was known or contemplated by the Bank and regardless of the legal or equitable theory of liability which the Customer may assert, including, without limitation, loss or damage from subsequent wrongful dishonor resulting from the Bank’s acts or omissions pursuant to this Online Banking Agreement.
Without limiting the generality of the foregoing provisions, the Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraints, interruption of transmission of communication facilities, equipment failure, war, emergency conditions, or other circumstances beyond the Bank’s control.
22. Governing Law; Dispute Resolution; Jury Trial Waiver.
The Customer and the Bank agree that any controversy or Claim between the Customer and the Bank, or between the Customer and any of the officers, employees, agents, or affiliated companies of the Bank, arising in connection with this Online Banking Agreement or any services provided pursuant to this Online Banking Agreement, whether based in contract, in tort, or on any other legal theory, shall be governed by federal law and all applicable substantive laws of the State of Texas without regard to its conflict of laws principles. The Bank is located in Texas and that is where the Customer opens the Customer account(s). Venue for any legal action or proceeding regarding this agreement shall be in the state or federal court located in Bexar County, Texas having jurisdiction over the matter. In addition, the Bank is subject to certain federal and state regulations, and the Bank must comply with these laws, regulations and rules. The Customer agrees that if there is any inconsistency between the terms of this Agreement and any applicable law, regulation or rule, the terms of this Agreement will prevail to the extent any such law, regulation or rule may be modified by agreement.
THE CUSTOMER AND THE BANK, FOR THEMSELVES AND EACH OF THEIR RELATED ENTITIES, SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY OF ALL DISPUTES, CONTROVERSIES AND CLAIMS BY, BETWEEN OR AGAINST EITHER THE CUSTOMER OR THE BANK WHEN THE DISPUTE, CONTROVERSY OR CLAIM IS TO BE DECIDED BY A COURT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, no action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the claiming party knew or should have known of the cause of action.
23. No Third-Party Beneficiaries.
This Online Banking Agreement is for the benefit of the Customer and the Bank and is not intended to grant, and shall not be construed as granting, any rights to or otherwise benefiting any other person, except as expressly otherwise provided for in this Online Banking Agreement.
24. Other Agreements; Severability; Construction.
If any provision of this Online Banking Agreement or of any writing used in connection with this Online Banking Agreement is unlawful or unenforceable, each such provision or writing will be without force and effect without thereby affecting any other provision hereof. The headings in this Online Banking Agreement are for convenience or reference only and will not govern the interpretation of the provisions. Unless it would be inconsistent to do so, words and phrases used in this Online Banking Agreement should be construed so the singular includes the plural and the plural includes the singular. Any provision that by its terms or operation is designed to survive termination, expiration or cancellation of this Agreement shall so survive. This Online Banking Agreement (including any schedules or addenda attached hereto), together with the Bank’s Deposit Account Agreement is the complete and exclusive statement of this Online Banking Agreement between the Bank and the Customer with respect to the subject matter hereof and supersedes any prior agreement(s) between the Bank and the Customer with respect to such subject matter.
25. External Transfers
Sections 25-33 apply only to External Transfers.
You may use our External Transfer service to electronically transfer funds from an eligible checking or savings account at the Bank (an “Eligible Account”) to a checking or savings account that is owned by you at another financial institution (an “External Account”). An “External Financial Institution” is a financial institution other than TransPecos Banks, SSB. Each transfer that the Customer makes to an External Account at another institution is called an “External Transfer.” The services described herein are called the “Service.”
We may change the types of accounts that may be used to make an External Transfer or the types of transfers that can be made using the Service at any time without notice.
26. Authorization and Warranties.
External Transfers may only be made to or from an External Account of which the Customer is an owner and for which Customer has the authority and rights to authorize such transfers. The Customer (a) represents and warrants that the Customer is an owner of any External Account that the Customer enrolls; (b) that the Customer has the authority to make External Transfers to and from the External Account without the joinder of any other party to that account; and (c) the Customer authorizes the Bank to initiate debit and credit transactions on the External Account and on the Customer’s accounts with the Bank based on instructions given to the Bank, including, but not limited to, instructions entered through the Bank’s online banking system. The Customer additionally authorizes the Bank to take any action necessary to correct any External Transfer errors identified by the Bank.
Customer’s authorizations to the Bank regarding any External Account will remain in full force until this Agreement is terminated.
27. Enrollment of an External Account.
The Customer will need to enroll an External Account before the Customer can transfer funds to or from that External Account. To “enroll” an External Account, the Customer must provide the following information regarding that External Account: account number, ABA Routing and Transit number for the external financial institution, the name of the external financial institution, and whether the External Account is a checking or savings account. By enrolling an External Account, the Customer Authorizes the Bank to make a series of small transactions (“Micro-Deposits”) that a user of that External Account must verify. The owner of the External Account must verify the amounts of the Micro-Deposits before the Bank will approve External Transfers activity to or from the External Account. The Bank reserves the right to reject an enrollment request for any reason, including, without limitation, potential fraud or misuse, based on limitations as outlined by the United States Department of the Treasury’s Office of Foreign Assets Control, or an incomplete enrollment.
Not all types of accounts are eligible for ACH transfers. The Customer may be subject to penalties by the External Financial Institution, or may suffer negative tax consequences, for certain transactions involving retirement (401k, IRA, etc.), savings, money market accounts, certificates of deposit, trusts, loans, custodial, business, corporate and other types of accounts. It is the Customer’s responsibility to verify with the External Account owner and the External Financial Institution any restrictions regarding transfers to any External Account that the Customer enrolls. THE BANK IS NOT RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, PENALTIES, FEES OR OTHER LIABILITY RESULTING FROM EXTERNAL TRANSFERS THAT ARE NOT PERMITTED BY EXTERNAL FINANCIAL INSTITUTIONS OR APPLICABLE LAWS AND REGULATIONS.
All External Transfers are subject to the rules and regulations of the External Financial Institution. The Customer agrees not to transfer any funds to or from an External Account where that transaction would not be allowed under the External Financial Institution’s restrictions, the Customer’s agreements with External Financial Institution, or under any applicable laws or regulations. The Customer agrees to obtain any and all permissions required by the External Financial Institution or External Account owner prior to transferring funds to an External Account.
28. External Account Number Policy.
The Bank may, but has no obligation to, validate any External Account number or routing number that the Customer provides in the enrollment process. It is the Customer’s responsibility to ensure that the Customer enters a valid and correct External Account number and routing number. The Bank may rely entirely on the account numbers the Customer provides for purposes of making External Transfers, even if the name of the owner or name of the financial institution associated with the External Account number does not match the name provided by the Customer. External Transfers sent to invalid or incorrect account numbers may not be recoverable. IF THE CUSTOMER PROVIDES AN INVALID OR INCORRECT EXTERNAL ACCOUNT NUMBER OR ROUTING NUMBER, THE BANK WILL NOT BE RESPONSIBLE FOR RETURNING FUNDS DUE TO AN UNRECOVERABLE EXTERNAL TRANSFER.
29. Transferring to an External Account.
When the Customer places an order for an External Transfer, the Bank will place a hold on funds in the Customer’s account. The hold will be effective on the scheduled date of the transaction and will be for an amount sufficient to honor the requested transaction. The hold will remain in effect until the funds are sent and the transaction is posted.
The Bank may, but is not required to, honor External Transfer orders in excess of the collected funds in the Customer’s Eligible Account. If the Customer’s Eligible Account has insufficient funds to cover an External Transfer order, the Bank may, at its sole discretion take one or more of the following actions:
● Honor the funds transfer under the terms of any Bank overdraft protection plan the Customer has established with the Bank, if applicable;
● Honor the funds transfer and create an overdraft in the Customer’s Eligible Account;
● Hold balances in the Customer’s other Bank accounts until the overdraft is paid; or
● Refuse to honor the funds transfer.
Fees may apply to any of the above remedies. Please refer to the Customer’s Deposit Account Agreement and Truth in Savings Disclosure and Fee Schedule for additional details. If any External Transfers are returned to the Bank for any reason, the Bank will return the funds, within a reasonable time, to the Customer’s Eligible Account.
30. Transferring from an External Account.
An External Transfer from an External Account is subject to the rules and regulations of the External Financial Institution holding the account. If any External Transfer from an External Account is rejected or returned, the Customer authorizes the Bank to collect from any of the Customer’s accounts with the Bank or from any overdraft protection line of credit sufficient funds to cover the transaction. Overdraft, non-sufficient fund, or other transaction fees will apply as with other return transactions. If funds are not available from any of the Customer’s accounts, the Customer agrees to promptly reimburse the Bank for the amount of the return along with applicable service fees, accrued interest, collection fees, and/or legal fees.
31. Transfer Timing and Settlement.
External Transfers generally take between one and three Business Days to settle. External Transfers requests not submitted prior to 5:00 p.m., CST, on a business day will be deemed to have been received on the following business day.
32. Canceling External Transfers.
The Bank may, but is not obligated to, honor the Customer’s request to cancel an External Transfer. Additionally, the Bank is unable to honor a request to cancel submitted less than one business day prior to the scheduled transaction processing date. Cancellation requests may be submitted through the Bank’s Online Banking system, by calling 1-888-534-3509, emailing support@bankmd.com, or writing to the Bank at the address below.
BankMD
P.O. BOX 1437
Westerville, OH 43086
33. Transfer Limits.
The Bank may refuse to honor any External Transfer, at any time for any or no reason, including but not limited to: written or verbal notice from other apparent owners of the External Account; overdrafts, unrecoverable rejects, or returns from the External Financial Institution; or possible fraud or illegal use. THE BANK IS NOT RESPONSIBLE FOR DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, PENALTIES, FEES OR OTHER LIABILITY RESULTING FROM THE BANK’S REFUSAL TO HONOR AN EXTERNAL TRANSFER FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO THE CUSTOMER’S EXCEEDING THE BANK’S EXTERNAL TRANSFER LIMITS.
34. BILL PAY
The “Bill Pay Service” allows you to request single time and recurring bill payment processing services from us. Sections 34-45 apply only to the Bill Pay Service.
35. Definitions for Bill Pay.
The following definitions apply only to the Bill Pay Service.
● “ACH Network” means the funds transfer system, governed by the NACHA Rules, that provides funds transfer services to participating financial institutions.
● “Affiliates” are companies related by common ownership or control.
● “Biller” is the person or entity to which you wish a bill payment to be directed or is the person or entity from which you receive electronic bills, as the case may be.
● “Billing Account” is the checking account from which all Bill Pay Service fees will be automatically debited.
● “Business Day” is every Monday through Friday, excluding Federal Reserve holidays or other days that banks are legally closed.
● “Due Date” is the date reflected on your Biller statement for which the payment is due, not the late payment date or the date beginning or a date during any grace period.
● “Eligible Transaction Account” is a transaction account from which your payments will be debited, your Bill Pay Service fees, if any, will be automatically debited, or to which payments and credits to you will be credited, that is eligible for the Bill Pay Service. Depending on the Bill Pay Service, an Eligible Transaction Account may include a checking, money market or other direct deposit account, credit card account, or debit card account, including any required routing information. You may designate which account is an Eligible Transaction Account.
● “Exception Payments” means payments to deposit accounts or brokerage accounts, and payments to settle securities transactions, including, without limitation, stocks, bonds, securities, futures, forex transactions, options, or an investment interest in any entity or property.
● “Payment Instruction” is defined as the information provided by you to the Bill Pay Service for a bill payment to be made to the Biller, including, by way of example and not by way of limitation, Biller name, Biller account number, and Scheduled Payment Date).
● “Payment Network” means a debit or credit network (such as the ACH Network or ACCEL/ Exchange payment network) through which funds may be transferred. “Scheduled Payment” is a payment that has been scheduled through the Bill Pay Service but has not begun processing.
● “Scheduled Payment Date” is the day you want your Biller to receive your bill payment, unless the Scheduled Payment Date falls on a non-Business Day in which case it will be considered to be the previous Business Day.
● “Service Provider” means companies that we have engaged (and their Affiliates) to render some or all of the Service to you on our behalf.
36. Payment Methods.
We reserve the right to select the method in which to remit funds on your behalf though the Bill Pay Service, and in the event that your Eligible Transaction Account is closed or otherwise unavailable to us, the method to return funds to you. These payment methods may include, but may not be limited to, an electronic or paper check or draft payment.
37. Payment Scheduling.
You must select a Scheduled Payment Date and/or transmit your Payment Instructions to us at least five (5) Business Days in advance of your Payment due date to help ensure Payment is received by the Biller in a timely manner. While it is anticipated that most transactions will be processed and completed on the next Business Day after the Payment is scheduled to be made, you understand that, due to circumstances beyond our control, including but not limited to delays in handling and posting payments by slow responding Billers or financial institutions, some transactions may take a day or even a few days longer to be credited to you by your Biller. We are not liable for any late payments except as expressly provided in this Agreement.
38. Payment Authorization and Payment Remittance.
By providing the Bill Pay Service with names and account information of Billers to whom you wish to direct payments, you authorize the Bill Pay Service to follow the Payment Instructions that it receives through Online Banking. In order to process payments more efficiently and effectively, the Bill Pay Service may edit or alter payment data or data formats in accordance with Biller directives.
When the Bill Pay Service receives a Payment Instruction, you authorize the Bill Pay Service to debit your Eligible Transaction Account and remit funds on your behalf. You also authorize the Bill Pay Service to credit your Eligible Transaction Account for payments returned to the Bill Pay Service by the United States Postal Service or Biller, payments remitted to you on behalf of another authorized user of the Bill Pay Service.
Except as otherwise provided herein, if the Bill Pay Service causes an incorrect amount of funds to be removed from your Eligible Transaction Account or causes funds from your Eligible Transaction Account to be directed to a Biller which does not comply with your Payment Instructions, the Bill Pay Service shall be responsible solely for returning the improperly transferred funds to your Eligible Transaction Account, and for directing to the proper Biller any previously misdirected transactions. We will not be responsible for incidental or consequential costs or damages caused by such errors.
39. Payment Cancellation Requests.
You may cancel or edit any Scheduled Payment (including recurring payments) by following the directions within the portion of Online Banking through which the Bill Pay Service is offered. There is no charge for canceling or editing a Scheduled Payment. You must cancel a payment online before 3:00 p.m. CST on the day before the Scheduled Payment Date. Once a Payment has been debited from your account, you cannot cancel or stop the Payment.
40. Stop Payment Requests.
It may not be possible to stop a bill payment request. If you desire to stop any payment that has already been processed, you must contact 1-888-534-3509. We may in our discretion attempt to accommodate stop payment requests for bill payments. However, we will have no liability for failing to do so. We may require you to confirm your request in writing. The charge for each stop payment request will be the current stop payment charge set out in our Truth in Savings Disclosure and Fee Schedule.
41. Exception Payments Requests.
Exception Payments are scheduled at your own risk. In no event shall the Bill Pay Service be liable for any claims or damages resulting from your scheduling of Exception Payments. We have no obligation to research or resolve any claim resulting from an Exception Payment; all research and resolution for any misapplied, mis-posted or misdirected payments will be your sole responsibility.
42. Prohibited Payments.
The following types of payments are prohibited through the Bill Pay Service, and we have the right but not the obligation to monitor for, block, cancel and/or reverse such payments:
● Payments to or from persons or entities located in prohibited territories (including any territory outside of the United States); and
● Payments that violate any law, statute, ordinance or regulation; and
● Tax payments and court ordered payments.
43. Failed or Returned Payment Instructions.
In using the Bill Pay Service, you are requesting us to attempt to make payments for you from your Eligible Transaction Account. If there are insufficient funds in your account to process a Payment Instruction, we may refuse to process the Payment Instruction or may complete the Payment instruction and consider the transaction an overdraft of your account. In addition, you may be assessed a fee by our Service Provider if the Payment Instruction cannot be debited because you have insufficient funds in your Eligible Transaction Account.
44. Biller Limitation.
The Bill Pay Service reserves the right to refuse to pay any Biller to whom you may direct a payment. The Bill Pay Service will notify you promptly if it decides to refuse to pay a Biller designated by you. This notification is not required if you attempt to make a prohibited payment or an Exception Payment under this Bill Pay Agreement.
45. Returned Payments.
You understand that Billers and/or the United States Postal Service may return payments to the Bill Pay Service for various reasons such as, but not limited to, Biller’s forwarding address expired; Biller account number is not valid; Biller is unable to locate account; or Biller account is paid in full. We will attempt to research and correct the returned payment and return it to your Biller, or we may void the payment and credit your Eligible Transaction Account. You may receive notification of this circumstance from us.
46. MOBILE BANKING
BankMD, a division of TransPecos Banks, SSB’s Mobile Banking Services permit you as a Bank Customer to perform Online Banking functions from your mobile device via the BankMD App (the “Mobile Banking App”). Sections 46 – 59 apply only to Mobile Banking Services. Mobile Banking Services include the following Online Banking Services provided through the Mobile Banking App:
● View account balances and transaction history
● View e-Statements
● Internal funds transfers between your accounts at BankMD, a division of TransPecos Banks, SSB
● External transfers to and from accounts you own at other institutions
● Stop payment orders
● Bill Pay
● Mobile banking
The Bank reserves the right to add withdraw or make unavailable any Mobile Banking Services with or without notice to you. The Bank retains the ability to either approve or deny your use of Mobile Banking Services, including the Mobile Remote Deposit Capture Service, in the Bank’s sole and absolute discretion. By using Mobile Banking Services, you agree to the applicable provisions set forth in this Online Banking Agreement. You agree to pay applicable fees that the Bank may charge in conjunction with using Mobile Banking Services or in conjunction with your use of ancillary services accessed through Mobile Banking Services.
47. System Requirements.
In order to access Mobile Banking Services, you must have a mobile device with the Mobile Banking App as well as any other compatible wireless hardware and software necessary to operate the service. You understand that you also must have a mobile device wireless service plan with a suitable mobile device service provider of your choice. You are responsible for acquiring, maintaining and operating your mobile device and its related hardware and software and for all associated costs and expenses, including, without limitation, all fees you incur for data transfers or sending or receiving messages of any kind through your service plan. The Bank is not responsible for errors or failures of your mobile device or its software or your service plan and is not responsible for any viruses or related problems that may be associated with your use of Mobile Banking Services or Online Banking Services.
48. Fees.
Please refer to the Truth in Savings Disclosure and Fee Schedule in the disclosures you received at the opening of your account or the most recent relevant Fee Schedule that may have been provided to you. The Bank may change the fees for use of the Mobile Banking Services at any time and may collect such fees by deducting them from your checking account or by any other method permitted in the Agreement or the Deposit Account Agreement. Bank may charge an overdraft fee if you do not have enough money in your account to cover the fee.
49. Mobile Banking Security.
You understand that you must maintain the security and confidentiality of your login credentials for the Mobile Banking App and login credentials for your phone or mobile device. Do not share your login credentials with others. A person with access to your login credentials may use them to gain unauthorized access to your account information or to make unauthorized transfers.
50. Mobile Remote Deposit Capture.
The Mobile Remote Deposit Capture (“MRDC”) Service enables you to create and submit electronic check images, also known as Image Replacement Documents (“IRD”), to the Bank, for deposit to your personal or business deposit account(s), as applicable, in lieu of the Original Checks from which such MRDC check images were obtained.
51. Information Regarding MRDC Transactions.
For the purposes of this section and other provisions relating to the MRDC Service, any capitalized term not otherwise defined herein has the definition ascribed to it under the Check 21 Act. If you have met, in our sole discretion, the conditions we have established for use of MRDC to make deposits via electronic images, we will provide for acceptance for deposit to your account(s) the electronic images of Original Checks for collection as allowed under this Online Banking Agreement and the Deposit Account Agreement.
52. Representations and Warranties.
By depositing electronic images with the Bank via the MRDC Services, you give us the same warranties and indemnities that we, as a reconverting bank, would give under applicable law or regulation. You understand and acknowledge that all of the warranties deemed given by a depositor of a check to a bank under the Uniform Commercial Code, as adopted by the State of Texas (“Texas UCC”), shall also apply to any electronic image of an Original Check the same as if such electronic image or Substitute Check were a paper check within the meaning of the Texas UCC. Accordingly, except to the extent that any warranties deemed given under the Texas UCC are expressly superseded by the Check 21 Act or the Check 21 regulations, you understand that you are deemed to give us all the same warranties you would have given under the Texas UCC for the deposit of an Original Check by transferring to us: (a) any Substitute Check; (b) an IRD or other item purporting to be a Substitute Check; or (c) any electronic image that purports to contain a Sufficient Copy of an Original Check or a Substitute Check.
Such warranties also include the following two (2) specific warranties regarding transfer and presentment:
● You warrant that the electronic image we convert to a Substitute Check meets the requirements described in Check 21 Regulation (found at 12 CFR §229.51(a)(1) – (2) and as amended from time to time) for legal equivalence
● And your warranty given above is deemed given to us and any other person, company or bank to which we transfer, present or return any of the Images included in such electronic file as a Sufficient Image Copy or that purports to be a Sufficient Image Copy created by bank or any subsequent bank receiving a copy of such image.
The Customer represents that it shall permit no third parties to use the MRDC Service to deposit Original Checks to the Customer’s account.
With respect to each and every Personal MRDC deposit initiated by you, you represent and warrant to the Bank and agree that you shall perform your obligations under this Online Banking Agreement in accordance with all applicable laws and regulations, including the sanctions laws administered by the Office of Foreign Assets Control (“OFAC”) and the Bank Secrecy Act.
53. Prohibited Transactions.
The Customer agrees not to use the MRDC Service to deposit or otherwise process: (i) non-cash items; (ii) items drawn on foreign banks or payable in other than U.S. money; (iii) items without pre-printed magnetic ink routing numbers; (iv) items for which Customer is not a holder in due course; (v) Substitute Checks, except those which have been returned to Customer for any reason; (vi) items payable to any person or entity other than Customer (i.e. no third-party deposits); (vii) items containing apparent alterations to any of the information on the front of the check or item, or which you know or suspect (or should know or suspect) are fraudulent or otherwise not authorized by the owner of the account on which the check or item is drawn; (viii) items dated more than six months prior to the date of deposit; (ix) items prohibited by Bank’s current procedures relating to the Mobile Banking Services or which are not acceptable under this Agreement; (x) Original Checks or other items previously converted to a Substitute Check; (xi) checks or items that are Remotely Created Checks (as defined in the Federal Reserve Board’s Regulation CC).
54. Processing of MRDC Deposits.
The Customer shall submit check images to the Bank in such format, and with such associated check information, as the Bank may require periodically, utilizing Accredited Standards Committee X9’s Specifications for Electronic Exchange of Check and Image Data (DSTU X9.37-2003) and in conformance with the requirements of the Bank’s Mobile Banking Services. The Bank reserves the right to reject any single check image or group of check images for any reason, before or after it/they appear on the Bank’s system. All checks submitted through the MRDC Service must be properly endorsed by the Customer prior to transmittal. Items transmitted without being properly endorsed are subject to rejection by the Bank. The Customer warrants the following: (i) the check image is an accurate representation of the information contained in the Original Check, and the check image includes all endorsements from the Original Check; (ii) each check image contains a record of all MICR line information required for a Substitute Check, and the check image satisfies all of the requirements of the Check 21 Act and Regulation CC; (iii) the Original Check, a duplicate check image, or any copy of the Original Check or check image will not be deposited by the Customer with the Bank; and (iv) the Original Check, a duplicate check image, or any copy of the Original Check or check image will not be presented, transferred or returned such that the Bank or any other person will be asked to make a payment based on a check or check image that has already been paid. The Bank has no responsibility or liability for any fees incurred due to the rejection of transmitted items for missing/incomplete endorsements. Unless the Bank notifies Customer otherwise, the Bank provides same day credit to the applicable account for all items transmitted by the Customer and received by the Bank within the timelines established by the Bank.
Should a Drawee Financial Institution return an item to us unpaid, we will charge your respective account for such returned item and may either (i) return the item to you, or (ii) re-present it to the Drawee Financial Institution before returning it to you. Items may be returned as Image Exchange Items, rather than Substitute Checks. Should a Drawee Financial Institution or other third party makes a claim against us or seek re-credit with respect to any electronic image, we may provisionally freeze or hold aside a like amount in your account pending investigation and resolution of the claim.
The Customer shall have no right to cancel or amend any deposit after its receipt by the Bank. However, if such request complies with the security procedures, the Bank may use reasonable efforts to act on a request by the Customer for cancellation of a deposit prior to transmitting it to the Federal Reserve but shall have no liability if such cancellation is not implemented. The Customer shall reimburse the Bank for any expenses, losses, or damages the Bank may incur in implementing or attempting to implement the Customer’s request for the reversal of a deposit.
55. Retention and Security of Original Checks.
The Customer shall retain physical checks that represent the deposit for no longer than (30) days following the date of their transmittal to the Bank and agrees to make the originals available to the Bank within seventy-two (72) hours of the Bank’s request for fraud control purposes. Such checks must be securely stored, to prevent unauthorized access to the items until they are destroyed (locked cabinet, etc.). You understand that in all cases you are solely responsible for safeguarding all items you retain, during the reasonable period of time described above from destruction, alteration or theft. Items are to be securely destroyed in a commercially reasonable manner that renders the items unusable or otherwise unreadable (shredding) on the thirty-first (31st) day following the date of the deposit. Prior to deposit, the Customer shall endorse all MRDC deposit items “for deposit only” in the endorsement area on the reverse side of the item. After depositing an item via MRDC, Customer agrees to write or mark “Mobile Deposit on [Deposit Date]” on the face of the item using the date of the deposit. The Customer understands that in all cases it is solely responsible for safeguarding all such images from destruction, alteration or theft in accordance with the provisions of this Online Banking Agreement. The Customer will use commercially reasonable methods to destroy the Original Checks after the required retention time has expired to render them unusable or otherwise unreadable. The Customer will cooperate with the Bank in providing information and access to Customer records in the event of lost, mistaken, incomplete, or unusable electronic images, or in the event of claims of fraud, alteration, counterfeit or otherwise. The Customer may not perform the MRDC Service for any third party, and any attempt to do so shall automatically terminate the Customer’s right to use MRDC.
56. Your Ability to Withdraw Funds.
These provisions apply only to demand deposit checking accounts where deposits are made via the Bank’s MRDC Services. You agree that electronic images submitted via the Bank’s MRDC Services from your mobile device are not subject to the funds availability requirements of the Federal Reserve Board’s Regulation CC. Our policy is to generally make funds from your personal MRDC Services available to you on the first Business Day after the day we receive your deposit. Funds that are deposited using the Bank’s MRDC Services will not be deemed “received” by us until we have received an electronic image that meets all of the requirements for deposits (including all requirements to create a Substitute Check) stated in this Online Banking Agreement and in any related documentation. Once the funds are available, you can withdraw the funds in cash and we will use the funds to pay items and transactions drawn on your account. For determining the availability of your deposits, every day is a business day, except Saturdays, Sundays, and federal holidays.
57. Longer Delays May Apply.
In some cases, we will not make all of the funds that you deposit via the MRDC Service available to you on the first Business Day after the day of your deposit. Depending on the type of check you deposit, funds may not be available until the second business day after the day of your deposit. The first $200 of your MRDC Service deposits, however, will be available on the first business day. If we are not going to make all of the funds from your deposit available on the first business day, we will generally notify you at the time you make your deposit. The Bank will also attempt to tell you when the funds will be available. If you will need the funds from a deposit via the MRDC Services, you should contact us to inquire when the funds will be available.
In addition, funds you deposit via the MRDC Service may be delayed for a longer period for a variety of additional reasons as determined in the Bank’s sole discretion, including, but not limited to:
● We believe a check you deposit will not be paid
● We believe a check you deposit is a duplicate image
● You deposit checks totaling more than any applicable transaction limit or other limitations that the Bank may impose
● You redeposit a check that has been returned unpaid
● You have overdrawn your account repeatedly in the last six months
● There is an emergency, such as failure of computer or communications equipment
● We exercise our rights to investigate any unusual or suspicious MRDC items as determined in Bank’s sole discretion
58. Customer Representation and Agreements; Indemnity.
With respect to each and every deposit initiated by the Customer, the Customer represents and warrants to Bank and agrees that to the best of the Customer’s knowledge: (a) each deposit is made payable to the Customer (b) any necessary authorization is operative at the time of transmittal or crediting/debiting by the Bank as provided herein, and (c) the Customer shall perform its obligations under this Online Banking Agreement in accordance with all applicable laws and regulations, including the sanctions laws administered by OFAC. In addition to other indemnification under this Online Banking Agreement, Customer also shall indemnify the Bank against any loss, liability, or expense (including attorney’s fees and expenses) resulting from or arising out of any breach of any of the foregoing representations or agreements.
59. Limitation on Liability.
In addition to the provisions contained in the Agreement, liability shall not exceed the sum of the amount of any actual loss suffered by the Customer as a result of a breach of warranties under Regulation CC (12 CFR Part 229) up to the amount of any substitute check, interest and expenses (including costs and reasonable attorney fees and other expenses of presentation) related to the substitute check reduced by any amount the Customer receives and retains as a re-credit. Furthermore, such liability shall be further reduced by the amount of any damages incurred as a result of the negligence or bad faith of the Customer. Without limiting the generality of the foregoing provisions, the Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraints, interruption of transmission of communication facilities, equipment failure, war, emergency conditions, or other circumstances beyond the Bank’s control.
Online Privacy, Security & Information Gathering Policy
Effective March 25, 2019
Customer Service: 1-888-534-3509
This document outlines the policies relating to privacy, security and information gathering put in place by BankMD. In this agreement, the “Bank”, “we,” “our”, “us”, or “Issuer” refer to BankMD, “You”, “your”, and yours refer to the user of the services provided by Bank. By using our websites, you agree to the information collection practices described herein. BankMD is a division of TransPecos Banks, SSB.
Privacy
Financial companies choose how they share your personal information. Federal law gives consumers the right to limit some but not all sharing. Federal law also requires us to tell you how we collect, share, and protect your personal information. Please read this notice carefully to understand what we do.
Children’s Online Privacy
We do not knowingly collect, use, or maintain any information through our websites from or about children who are under the age of 13 years. If we determine that a child under the age of 13 has provided us with information through one of our websites, we will use this information only to notify his or her parents that the information was received.
Security
Do not submit confidential or sensitive information unless you know the information will be transmitted in a secure manner. No confidential or personal information should be sent through regular email since email transmissions may not be secure.
We continually review our security safeguards in order to protect customer information that we gather, transmit and store in connection with our online products and services.
Passwords and Mobile Security
We recommend you safeguard your identity and personal information by using effective password protection and access our services using only secure devices and secure networks. Without limiting any other provisions herein, you agree that we have no liability or obligation related to (i) your creation of any user ids or passwords used to access our services; or (ii) your use of any mobile or other devices to access our services. Use of third-party devices and software is solely at your own risk.
Information Gathering
We obtain information about our clients and website users online when you provide your information to us directly to complete online forms or obtain online services or indirectly as part of the information we collect on our websites. One example of information we collect indirectly is information collected through our internet access logs. When you access our website, your internet address is automatically collected and is placed in our internet access logs. We may also record the URLs of the websites and pages you visit before, during and after your visit to our website, the times and dates of these visits, information about the computer hardware and software you use, and other information that may be available.
We may collect information directly from you in a number of ways, including through the use of cookies. Cookies are small files of information which save and retrieve information about your visit to the website, such as how you entered our website, how you navigated through the website, and what information you viewed. We use cookies to record information on customers’ visits and use of our websites in order to administer and improve our websites. We do not use cookies to store or transmit any personally identifiable information.
Temporary “session” cookies are also used to facilitate customer navigation within our website. Session cookies are deleted once you close your internet browser. We may also use “persistent” cookies that are retained on your computer after your visit ends so we can identity your preferences and enhance your next visit to our website.
In addition, cookies help us manage and monitor internet traffic from third-party websites to ours and identify which areas of our website are used most often and for how long. We may provide this type of aggregate information to non-affiliated application service providers that compile statistical or other information for us. This feedback and analysis allows us to continually update our website.
We also collect information directly when you voluntarily submit it to us. In addition to our cookies, we may use cookies from advertising partners, transparent GIFs or web beacons to help us gather information about the effectiveness of our advertising. We do not gather personally identifiable information in this way.
You can block cookies by changing the settings on your internet browser or through the use of software programs specifically designed to block cookies. You should be aware that blocking cookies or using certain security software settings may prevent you from logging onto your accounts or limit your online activities. If you employ “do not track” signals while visiting our website, we will not collect information about your visit, nor will any third-party included on our site.
Changes to this Policy
This Online Privacy, Security & Information Gathering Policy is subject to change. Please review it periodically. If changes are made, the effective date at the top of this Policy will be revised. Any changes to this policy will become effective when posted unless indicated otherwise.
WHAT DOES BANKMD DO WITH YOUR PERSONAL INFORMATION?
Why Financial companies choose how they share your personal information. Federal law gives consumers the right to limit some but not all sharing. Federal law also requires us to tell you how we collect, share, and protect your personal information. Please read this notice carefully to understand what we do.
What The types of personal information we collect and share depend on the product or service you have with us. This information can include:
● Social Security Number and account balances
● Account transactions and checking account information
● Transaction history and credit history
When you are no longer our customer, we continue to share your information as described in this notice.
How All financial companies need to share customers’ personal information to run their everyday business. In the section below, we list the reasons financial companies can share their customers’ personal information; the reasons BankMD chooses to share; and whether you can limit this sharing.
Reasons we can share your personal information Does BankMD Share? Can you limit this sharing?
For our everyday business purposes
such as to process your transactions, maintain your account(s), respond to court orders and legal investigations, or report to credit bureaus Yes No
For our marketing purposes
to offer our products and services to you Yes No
For joint marketing with other financial companies Yes No
For our affiliates’ everyday business purposes
information about your transactions and experiences Yes No
For our affiliates’ everyday business purposes
information about your creditworthiness No We don’t share
For nonaffiliates to market to you No We don’t share
Questions? Call 1-888-534-3509 or visit www.bankMD.com
Who we are
Who is providing this notice? BankMD, a division of TransPecos Banks, SSB
What we do
How does BankMD protect my personal information? To protect your personal information from unauthorized access and use, we use security measures that comply with federal law. These measures include computer safeguards and secured files and buildings.
How does BankMD collect my personal information? We collect your personal information, for example, when you open an account or use your debit card We also collect your personal information from others, such as credit bureaus and other companies.
Why can’t I limit all sharing? Federal law gives you the right to limit only:
● sharing for affiliates’ everyday business purposes
● information about your creditworthiness
● affiliates from using your information to market to you
● sharing for nonaffiliates to market to you
State laws and individual companies may give you additional rights to limit sharing.
Definitions
Affiliates Companies related by common ownership or control. They can be financial and nonfinancial companies.
Non-Affiliates Companies not related by common ownership or control. They can be financial and nonfinancial companies. We do not share with non-affiliates so they can market to you.
Joint Marketing A formal agreement between nonaffiliated financial companies that work together to market financial products or services to you.
Other Important Information
For Texas Customers. TransPecos Banks, SSB is chartered under the laws of the State of Texas and by state law is subject to regulatory oversight by the Texas Department of Savings and Mortgage Lending. Any consumer wishing to file a complaint against TransPecos Banks, SSB should contact the Texas Department of Savings and Mortgage Lending through one of the means indicated below: In person, or by U.S. Mail: 2601 North Lamar Boulevard, Suite 201, Austin, Texas 78705-4294; Telephone No. (877) 276-5550; Fax No. (512) 936.2003; Email: smlinfo@sml.texas.gov; Website: https://sml.texas.gov
FUNDS AVAILABILITY POLICY
For purposes of this policy, the following terms shall be defined as follows:
● “account” means a deposit account or accounts you open with BankMD.
● “you,” “your,” and “yours,” mean the owner or owners of the account.
● “BankMD”, “the Bank” “we,” “our”, or “us” shall mean BankMD, a Division of TransPecos Banks, SSB.
The terms of this policy are incorporated with and made a part of your Deposit Account Agreement with us. If the terms and conditions of this policy, including any subsequent policies, conflict with the terms and conditions contained in any other agreement between the Bank and you, the terms and conditions of this policy shall be controlling with respect to funds availability matters to the extent of the conflict.
Your Ability to Withdraw Funds
We will generally make funds from your mobile check deposits available to you on the business day after we receive your deposit. Electronic ACH direct deposits will be available on the day we receive deposit instructions. Once the funds are available, you may withdraw the funds in cash, and we may use the funds to pay checks that you have written. We will not accept cash, check, or other deposits by mail. Deposits must be made by mobile deposit capture, direct deposit, ACH transfer, wire transfer, external transfer, peer to peer payment, or other acceptable electronic means. If you attempt to make a deposit by mail, we will return the deposit to you at the address we have on file for you.
Longer Delays May Apply
In some cases, we may not make all of the funds that you deposited available on the first business day after your deposit. Funds may not be available until the second business day after the day of your deposit. The first $200 of your deposits, however, will be available on the first business day after the date of deposit.
If we are not going to make all of the funds from your deposit available on the first business day, we will notify you at the time you make your deposit. We will also tell you when the funds will be available. If your deposit is not made directly to one of our employees, or if we decide to take this action after you have left the premises, we will send you an electronic notice the day after we receive your deposit.
If you will need the funds from a deposit right away, you should ask us when the funds will be available.
Exception Holds: Funds you deposit by check may be delayed for up to the 7th business day after the day of your deposit under the following circumstances:
• We believe a check you deposit will not be paid.
• You deposit checks totaling more than $5,000 on any one day.
• You redeposit a check that has been returned unpaid.
• You have overdrawn your account repeatedly in the last six months.
• There is an emergency, such as failure of computer or communications equipment.
We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available.
Holds on Other Funds
If we cash a check for you that is drawn on another financial institution, we may withhold the availability of a corresponding amount of funds that are already in your account. Those funds will be available at the time funds from the check we cashed would have been available if you had deposited it.
If we accept for deposit a check that is drawn on another financial institution, we may make funds from the deposit available for withdrawal immediately but delay your availability to withdraw a corresponding amount of funds that you have on deposit in another account with us. The funds in the other account would then not be available for withdrawal until the time periods that are described elsewhere in this disclosure for the type of check that you deposited.
Deposits at Automated Teller Machines
BankMD does not operate ATMs that accept deposits by cash, check, or other physical instrument. BankMD may accept deposits through the MoneyPass ATM network. Not all MoneyPass ATMs support deposit functions. Deposits at MoneyPass ATMs will generally be made available on the day of deposit or on the first business day after the date of deposit. If you make a deposit on a day that we are not open, we may deem the deposit as received on the next business day we are open. ATM deposits are subject to holds as described above.
Cash Withdrawal Limitation
We place certain limitations on withdrawals in cash. In general, $200 of a deposit is available for withdrawal in cash on the first business day after the day of deposit. Thereafter, any amount of the deposit over $200, up to $400, is available for cash withdrawal on the second business day after the day of the deposit. Any amount of the deposit over $400 will be available for withdrawal in cash on the following business day. In addition, the following daily limitations apply to Point of Sale withdrawals and ATM withdrawals:
For your checking account, point of sale “POS” withdrawals are limited to $1,000.00 per day and ATM withdrawals are limited to 5 per day.
Business Days and Cut-off Times
For determining the availability of your deposits, business days are Monday through Friday, excluding federal holidays. If you make a deposit after 3:00 p.m. CST on a business day, your deposit will be deemed to be received on the following business day.
International Transactions
Checks drawn on financial institutions located outside the U.S. (foreign checks) cannot be processed the same as checks drawn on U.S. financial institutions. Foreign checks are exempt from the policies outlined in this disclosure. Generally, the availability of funds for deposits of foreign checks will be delayed for the time it takes us to collect the funds from the financial institutions upon which it is drawn.
International ACH transactions, international wire transactions, or other international electronic transactions may be identified and designated for review and examination under the Office of Foreign Assets Control Rules (OFAC Rules). You acknowledge that settlement of an international transaction may be indefinitely delayed, suspended, or terminated under applicable OFAC Rules.
We may, in our sole discretion, refuse to receive, issue, or otherwise process foreign checks, international ACH transactions, and international wire transactions.
Substitute Checks and Your Rights-Important Information About Your Checking Account
What Is a Substitute Check?
To make check processing faster, federal law permits financial institutions to replace original checks with “substitute checks.” These checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” You may use a substitute check as proof of payment just like the original check.
Some or all of the checks that you receive back from us may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or to electronic debits to your account. However, you have rights under other law with respect to those transactions.
What Are My Rights Regarding Substitute Checks?
In certain cases, federal law provides a special procedure that allows you to request a refund for losses you suffer if a substitute check is posted to your account (for example, if you think that we withdrew the wrong amount from your account or that we withdrew money from your account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your account and fees that were charged as a result of the withdrawal (for example, bounced check fees).
The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You also are entitled to interest on the amount of your refund if your account is an interest-bearing account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law.
If you use this procedure, you may receive up to $2,500 of your refund (plus interest if your account earns interest) within 10 business days after we received your claim and the remainder of your refund (plus interest if your account earns interest) not later than 45 calendar days after we received your claim.
We may reverse the refund (including any interest on the refund) if we later are able to demonstrate that the substitute check was correctly posted to your account.
How Do I Make a Claim for a Refund?
If you believe that you have suffered a loss relating to a substitute check that you received and that was posted to your account, please contact us at P.O. Box 1437, Westerville, OH 43086, 1-888-534-3509. You must contact us within 60 calendar days of the date that we mailed (or otherwise delivered by a means to which you agreed) the substitute check in question or the account statement showing that the substitute check was posted to your account, whichever is later. We will extend this time period if you were not able to make a timely claim because of extraordinary circumstances.
Your claim must include –
• A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect);
• An estimate of the amount of your loss;
• An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and
A copy of the substitute check and the following information to help us identify the substitute check: identifying information, for example the check number, the name of the person to whom you wrote the check, the amount of the check.
Truth in Savings Disclosure and Fee Schedule
For purposes of this disclosure, the following terms shall be defined as follows:
● “account” means a deposit account or accounts you open with BankMD.
● “you,” “your,” and “yours,” mean the owner or owners of the account.
● “BankMD,” “the Bank” “we,” “our,” or “us” shall mean BankMD, a Division of TransPecos Banks, SSB.
The terms of this disclosure are incorporated with and made a part of your Deposit Account Agreement with us. If the terms and conditions of this disclosure, including any subsequent disclosures, conflict with the terms and conditions contained in any other agreement between the Bank and you, the terms and conditions of this disclosure shall be controlling with respect to truth in savings and fee matters to the extent of the conflict.
This Truth in Savings Disclosure and Fee Schedule summarizes important information regarding your account with BankMD. Further important details regarding your account are included in your Deposit Account Agreement and additional account opening disclosures.
Annual Percentage Yield (APY)
The APY you may earn on each type of BankMD checking account or savings account is as follows:
Account Type Interest Rate Annual Percentage Yield (APY) Minimum Balance Requirement
BankMD Checking 0.10% 0.10% None
BankMD Savings 0.10% 0.10% None
BankMD
Rise 0.60% 0.60% None
BankMD
Military 0.60% 0.60% None
Rates stated here will be in effect for 30 days from the date this disclosure is issued. BankMD Rise and BankMD Military are checking accounts.
Balance Computation
Your account balance will be computed using the Average Daily Balance Method. The average daily balance is determined by adding the full Collected Balance in the account for each day of the period and dividing that figure by the number of days in the period. Your account balance each day is the ending balance of the account from the previous day, plus deposits and minus withdrawals made that business day.
The Collected Balance includes the amount of non-cash items (checks) you have deposited for which the Bank has received provisional credit. The Bank will begin to pay interest on checks, as defined in the Federal Reserve Board’s Regulation CC and the Expedited Funds Availability Act (EFA) no later than the business day specified in Regulation CC and in the EFA.
Balance Requirements
There is no initial deposit required to open a checking account. You may deposit any amount you wish when opening a checking account. There is no initial deposit required to open a savings account. You may deposit any amount you wish when opening a savings account. If you fail to make a deposit to a new account within 30 days of opening the account, the account will be closed.
Transaction Limitations
Your checking account is a negotiable order of withdrawal account. We may refuse or delay a withdrawal order for seven days after receiving a withdrawal request. You may make deposits by electronic means, including via mobile deposit capture. We will not accept cash, check, or other deposits that are mailed to us. Likewise, withdrawals from your account must be made electronically. Transactions from your checking account are also limited by the following restrictions:
Transaction Type Frequency and/or Dollar Limits
Bill Pay Payment Maximum Payment Amount: No limit to the number of payments per day up to $100,000 per item
External Transfer (A2A) Maximum Daily Credit: No limit to the number of payments per day up to $10,000
Maximum Daily Debit: No Limit to the number of payments per day up to $10,000
Maximum Daily Combined: No limit to the number of payments per day up to $10,000
PayItNow (P2P) Maximum Payment Amount: No limit to the number of payments per day up to $2,500
We may update the transaction limitations from time to time at our discretion. Transactions may also be limited if we suspect that a person has been conducting fraudulent transactions on your account.
Withdrawals from your savings account are limited to 6 per statement cycle. If you exceed this limitation, we may, in our sole discretion, do one or more of the following: refuse to process the transaction, charge you a fee, change your account type, or close your account.
BankMD Military
The BankMD Military account and product suite are available to: 1) Service members holding an active or reserve position in the Army, Air Force, Navy, Marines, Coast Guard at the time of application.
Change in Terms and Conditions
We may change the terms and conditions of your savings or checking account from time to time. We will notify you of changes at least 30 days prior to the effective date of the change. We may send the notice with a statement or with a separate document.
Overdrafts
No overdrafts are permitted for BankMD Checking, BankMD Rise, BankMD Military, or BankMD Savings accounts. If there are not sufficient funds in your account to cover a transaction, the transaction will be declined.
Fee Schedule
Our fee schedule is provided below:
BankMD Rise Subscription Fee
BankMD Rise Monthly Subscription Fee $19.95 Monthly fee for access to BankMD Rise suite of products and services. Fee is waived for one year after opening a new BankMD Rise checking account.
BankMD Account Fees
Account Type Fee Amount Other Limitations
BankMD Checking
BankMD Rise
BankMD Military Maintenance Fee $0.00
Monthly Fee $0.00
Bill Pay Transaction Fee $0.00
Internal Transfer Fee $0.00
External Transfer (A2A) Fee $0.00
PayItNow (P2P) Fee $0.00
Overdraft N/A Not Permitted
Non-Sufficient Funds (NSF) $0.00
Stop Payment Fee $0.00
ATM Withdrawal Fee $0.00
Wire Transfer Domestic $0.00
Wire Transfer International $0.00
ACH Withdrawal $0.00
Payroll Deposit $0.00
BankMD Savings New Check Orders $0.00
Maintenance Fee $0.00
Monthly Fee $0.00
Account Closure $0.00
Overdraft N/A Not Permitted
Non-Sufficient Funds (NSF) $0.00
REGULATION E DISCLOSURE
ELECTRONIC FUNDS TRANSFER DISCLOSURES
This disclosure is part of your Deposit Account Agreement. This disclosure does not apply to commercial deposit accounts. Electronic funds transfers are electronically initiated transfers of money involving an account at BankMD. The following disclosures set forth your and our rights and responsibilities concerning the electronic funds transfers. In this Agreement, the words “you” and “your” mean those who sign as applicants or any authorized user(s). The words “we”, “us” and “our” mean BankMD. The abbreviation “PIN” or word “code” means a personal identification number. BankMD is a division of TransPecos Banks, SSB.
BankMD Online Banking and Mobile Banking Services
Types of Transactions. You may access the accounts you maintain with us by computer or with your mobile device by using the BankMD online banking service (“Online Banking”) or the BankMD mobile app. You must use your assigned user ID and password to access these services. Additional security requirements may apply. You may use Online Banking or the mobile app to do the following:
● Obtain account balance information ● Make Pay it Now (P2P) Payments
● Review account transactions and activity ● Manage Bill Pay Service Payments
● View and obtain copies of statements ● Originate ACH Transactions
● Transfer funds between eligible accounts ● Make stop payment requests
Limitations on Frequency and Amount
Bill Pay Payment Maximum Payment Amount: No limit to the number of payments per day up to $100,000 per item.
External Transfer (A2A) Maximum Daily Credit: No limit to the number of payments per day up to $10,000
Maximum Daily Debit: No Limit to the number of payments per day up to $10,000
Maximum Daily Combined: No limit to the number of payments per day up to $10,000
PayItNow (P2P) Maximum Payment Amount: No limit to the number of payments per day up to $2,500
Fees and Charges for Online Service. See the Truth in Savings Disclosure and Fee Schedule provided with your account documents for a list of applicable fees for Online Banking and mobile banking services.
Mastercard Debit Card Transactions
Types of Transactions/Transfers. You may use the debit card and PIN issued to you to pay for purchases from merchants who have agreed to accept the debit card at point of sale (POS) terminals within the networks identified on your card and such other locations as the Bank may designate from time to time. Point of sale transactions will be deducted from your checking account. Point of sale transactions involving a refund will be credited to your checking account. You may use your debit card and personal identification number (PIN) issued to you to initiate transactions at ATMs within the networks identified on your card and such other locations as we may designate from time to time. Unless you specify otherwise, your checking account will be used for your ATM transactions. Provided the ATM supports the action, you may use your card at an ATM to:
● Withdraw cash from your checking account
● Withdraw cash from your savings account
● Obtain balance information on your deposit accounts
Limitations on Frequency and Amount
● You may make 5 cash withdrawals from ATMs per day.
● You may withdraw up to a maximum of $1,000.00 (if there are sufficient funds in your account) per day, subject to any applicable limitations of the ATM you are using.
● You may not withdraw amounts exceeding the available funds in your account.
● For security purposes, there are limits on the frequency and amount of transfers you may make using ATMs.
Fees and Charges
● We do not charge for ATM transactions.
● We do not charge for any POS transactions.
When you use an ATM that is not owned by us, you may be charged a fee by the ATM operator. You may be charged a fee for a balance inquiry or other use of the ATM even if you do not complete a fund transfer.
Preauthorized EFT Transfers and Direct Deposits
Types of Preauthorized Transfers. You may arrange for us to accept direct deposits from your employer or other financial institutions to your checking or savings account or pay certain recurring bills from your checking or savings account. You may also arrange for us to accept direct deposits from the U.S. Treasury Department to your checking or savings account.
Limitations on Frequency and Amount. There are no limits on the number of transfers or withdrawals you may make per day.
Fees and Charges. We do not charge for any preauthorized EFTs.
Bank by Phone Call
Types of Telephone Transactions. You may access your deposit accounts by calling Customer Service at 1-888-534-4509 to:
● Transfer funds between your deposit accounts.
● Obtain balance information on your deposit accounts.
● Determine if a particular transaction has cleared your account.
Limitations on Frequency and Amount. There are no limits on the number or dollar amount of inquiries, transfers or withdrawals you may make per day.
Fees and Charges for Telephone Banking. We do not charge for text or telephone banking transactions.
Other EFT Transactions.
Electronic Check Conversion. You may authorize a merchant or other payee to make a one-time electronic payment from your account using information from your check to pay for purchases or to pay bills. Electronic check conversion is a payment process in which a merchant or other payee (after obtaining your authorization) uses your check to gather routing, account, and check number information to initiate a one-time EFT. When information from your check is used to make an electronic fund transfer, funds may be withdrawn from your account as soon as the same day you make your payment. A description of the transaction will appear on your statement.
Re-Presented Check Transactions and Fees. You may authorize a merchant to electronically collect a fee associated with the re-presentment of a check that is returned due to insufficient or unavailable funds. The resulting fee transaction if debited as an EFT from a consumer account is covered by the Electronic Funds Transfer Act and this disclosure. When a merchant re-presents a check electronically, that transaction is not covered by the Electronic Funds Transfer Act or this disclosure. A description of the transaction will appear on your statement.
Special Rules for Liability for Unauthorized Mastercard Debit Card Transactions
The following limitations may be applicable to your accounts, except as provided by law:
The zero-liability limit described below only applies to Mastercard consumer debit cards or certain Mastercard small business cards that are issued in the United States for transactions processed through a Mastercard network. The zero-liability limit described below may not apply to: (a) other types of Mastercard commercial debit cards that are not Mastercard small business cards; (b) transactions that are not processed through a Mastercard network; and (c) ATM transactions which are not sent over Mastercard networks.
Tell us AT ONCE if you believe your Mastercard debit card has been lost or stolen or if you believe any unauthorized transactions have been made using your Mastercard debit card. Your liability for unauthorized Mastercard debit card transactions that are processed through a Mastercard network may be zero dollars ($0.00), provided you exercise reasonable care in safeguarding your debit card from risk of loss or theft and, upon becoming aware of such loss or theft, promptly report the loss or theft to us.
To notify us of lost or stolen cards, or of unauthorized transactions, call us immediately or call us and then write to us at the telephone number or address set forth in the Liability for Unauthorized Transfers paragraph below. This will help prevent unauthorized access to your account and minimize any inconvenience.
Liability for Unauthorized Transfers.
Tell us AT ONCE if you believe your debit card, PIN, or login information has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your account. If you tell us within 2 business days after you learn of the loss or theft of your debit card, PIN, or login information; you can lose no more than $50 if someone used your debit card, PIN, or login information without your permission.
If you do NOT tell us within 2 business days after you learn of the loss or theft of your debit card, PIN, or login information, and we can prove we could have stopped someone from using your debit card, PIN, or login information without your permission if you had told us, you could lose as much as $500.
Also, if your statement shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
If you believe your debit card, PIN, or login information has been lost or stolen, call: 1-888-534-3509 and then write: BankMD Cardmember Services P.O. Box 1437 Westerville, OH 43086.
You should also call the number and write to the address listed above if you believe a transfer has been made using the information from your check without your permission.
Documentation
Periodic Statement. You will get a monthly account statement from us, unless there are no transactions in a particular month. In any case you will get a statement quarterly. In some cases, we may send you a monthly statement, regardless whether there were transactions in a given month.
Terminal Receipt. You can get a receipt at the time you make a transfer to or from your account using an ATM or a POS terminal. However, receipts for transactions of $15.00 or less may not always be available.
Direct Deposits. If you have arranged to have direct deposits made to your account at least once every sixty (60) days from the same person or company, you can call us at 1-888-534-3509 to find out whether or not the deposit has been made.
Our Liability for Failure to Make Transfers.
If we do not complete a transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will NOT be liable for instance:
● If, through no fault of ours, you do not have enough money in your account to make the transfer.
● If the money in your account is subject to legal process or other claim restricting such transfer.
● If the ATM where you are making the transfer does not have enough cash.
● If the terminal or system was not working properly and you knew about the breakdown when you started the transfer.
● If circumstances beyond our control (such as fire or flood) prevent the transaction, despite reasonable precautions that we have taken.
● There may be other exceptions stated in our agreement with you.
In Case of Errors or Questions About Your Electronic Transfers.
Telephone us at 1-888-534-3509 or email us via Online Banking as soon as you can, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.
● Tell us your name and account number (if any).
● Describe the error or the transfer you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
● Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days.
We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.
We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
Preauthorized payments
Right to stop payment and procedure for doing so. If you have told us in advance to make regular payments out of your account, you can stop any of these payments. Here’s how:
Call us at 1-888-534-3509, or email us through Online Banking, in time for us to receive your request 3 business days or more before the payment is scheduled to be made. If you call, we may also require you to put your request in writing and get it to us within 14 days after you call.
Notice of varying amounts. If these regular payments may vary in amount, we will tell you, 10 days before each payment, when it will be made and how much it will be. (You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set.)
Liability for failure to stop payment of preauthorized transfer. If you order us to stop one of these payments 3 business days or more before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages.
Other Provisions. There may be a delay between the time a deposit is made and when it will be available for withdrawal. You should review our Funds Availability Policy to determine the availability of the funds deposited at ATMs. We reserve the right to refuse any transaction which would draw upon insufficient funds, exceed a credit limit, lower an account below a required balance, or otherwise require us to increase our required reserve on the account.
Miscellaneous Provisions
Business Days. For purposes of these disclosures, our business days are Monday through Friday. Holidays are not included.
Illegal Transactions. You may not use your ATM, POS, or debit card, or other access device for any illegal or unlawful transaction, and we may decline to authorize any transaction that we believe poses an undue risk of illegality or unlawfulness. Notwithstanding the foregoing, we may collect on any debt arising out of any illegal or unlawful transaction.
Confidentiality. We will disclose information to third parties about your account or the transfers you make:
● To complete transfers as necessary;
● To verify the existence and condition of your account upon the request of a third party, such as a credit bureau or merchant; or
● To comply with government agency or court orders; or
● If you give us your written permission.
Personal Identification Number (PIN). Any PIN issued to you is for your security purposes. Your PIN is confidential. You should not disclose your PIN to third parties. Memorize your PIN. Do not write your PIN on your debit card or keep it near your debit card. You are responsible for safekeeping your PIN(s). You agree not to disclose or otherwise make your PIN available to any other person.
Notices. For purposes of this disclosure, all notices from us will be effective when we have emailed them, mailed them, or delivered them to your last known address on our records. Notices from you will be effective when received by us at the telephone number or the address specified in this Agreement. We reserve the right to change the terms and conditions upon which this service is offered. We will mail notice to you at least twenty-one (21) days before the effective date of any change, as required by law. Use of this service is subject to existing regulations governing your account and any future changes to those regulations.
Enforcement. For purposes of this disclosure, in the event either party brings a legal action to enforce the provisions of this disclosure or collect amounts owing as a result of any Account transaction, the prevailing party shall be entitled to reasonable attorneys’ fees and costs, including fees on any appeal, subject to any limits under applicable law.
Termination of Services. You agree that we may terminate your access to any of the services described in this disclosure for the following reasons and for any reason stated in any of your other agreements with BankMD:
● You or any authorized user of your account breach this or any other agreement with us;
● We have reason to believe that there has been an unauthorized use of your Online Banking services access, debit card, PIN, or other transaction contemplated in this disclosure;
● We notify you or any other party to your account that we have cancelled or will cancel the services described in this disclosure.
You or any other party to your account can terminate the services described in this disclosure according to the terms and conditions of the applicable service agreement you have with us.
ATM SAFETY PRECAUTIONS
Please use common sense and judgment when approaching and using an ATM. The following is a list of safety precautions you should take when visiting and using an ATM machine:
● Conduct your automated banking in a public, well-lit location that is free of shrubbery and decorative partitions or dividers.
● Maintain an awareness of your surroundings throughout the entire transaction. Be aware of:
○ Anyone trying to help you with an ATM transaction.
○ Anyone trying to look over your shoulder as you enter your PIN.
○ Anyone sitting in a parked car nearby.
● For outdoor terminals, be aware of your environmental surroundings and be cautious of complicated weather conditions such as fog, rain, snow, sand or dust storms, or other similar conditions.
● Check the ATM for signs of tampering or the placement of card number skimming devices.
● If you see or become aware of suspicious conditions or persons near the ATM, do not initiate a transaction at the ATM and leave. If you have begun a transaction, cancel the transaction, do not enter your PIN, and take your card and leave.
● Prevent others from seeing you enter your PIN by using your body to shield their view.
● Treat your card like cash. Don’t lend your debit card to anyone. If your card has a chip, keep it in a security envelope or wallet that prevents near field communications readers from reading the information contained in the chip.
● For online transactions, after completing online purchases with your card or card number, you should log out of the site through which the purchase was made and close the browser window.
● Do not give your card number to any person over the phone unless you are conducting a transaction with a reputable merchant with which you are familiar.
● Don’t leave your card at the ATM. Do not leave any receipts or documents at an ATM or night deposit facility.
● Always memorize your PIN; never write it on the back of your card. Do not re-enter your PIN if the ATM eats your card, please contact a Bank representative.
● Never count your cash at the ATM or in public. Wait until you are in your car or another secure place. Refrain from displaying cash in public.
● When using a drive-up ATM, keep your engine running, your doors locked and leave enough room to maneuver between your car and the one ahead of you in the drive-up line.
● Closely monitor your bank statements, as well as your balances, and compare ATM receipts against your monthly statement. Immediately report any problems or discrepancies to a Bank representative.
● If you lose your card or if it is stolen, promptly notify us. You should consult the other disclosures you have received about electronic fund transfers for additional information about what to do if your card is lost or stolen.
Please report any unsafe conditions at an ATM to the operator. Please report any suspicious activity or crimes to both the operator of the facility and the local law enforcement officials immediately.
