Legal Disclosure

MOBILE CHECK DEPOSIT AGREEMENT

 

PLEASE NOTE:  Only use your personal Home State Bank Check Card with the MasterCard logo for enrollment.  DO NOT use an existing Home State Bank VISA Check Card to enroll.  If you do, this account will automatically close on March 31 when the VISA card is no longer valid.

 

This Agreement revised and effective April 16, 2014

This Agreement governs your use of the Home State Bank Mobile Check Deposit (“MCD”) services.   By accepting the Terms and Conditions, you, as the account signer, authorize Home State Bank (“The Bank”), at its sole discretion, to verify credit and/or have a credit reporting agency prepare a credit report at any time during the term of this agreement.

 

Table of Contents

1)   Services and Service Terms

2)   Acceptance of these Terms

3)   Definitions

4)   Access

5)   Depositor Obligations; Suspension/Cancellation of Service

a.     Eligible Items

b.    Endorsement

c.     Image Quality

d.    Depositor Responsibilities

e.    Withdrawal of Access/Suspension of Service

f.      Account Statement Examination

g.    Hardware and Software Requirements

6)   Payment Processing

a.     IRD Processing

b.    Processing of Items

c.     Handling of Transmitted Items

d.    AVAILABILITY OF FUNDS – 12:00 Noon Daily Cut-off Time

e.    Depositor Liability

f.      Limits

g.    FEE DDA DEPOSIT – $1.00 per item

7)   Warranties and Disclaimers

a.     Depositor Warranty

b.    The Bank Warranty

c.     Disclaimer

8)   Limitation of Liability / Indemnification.

a.     Limitation of Liability

b.    Indemnification

9)   Termination

a.     Termination

b.    Obligations upon Termination

10)         Confidentiality

a.     The Bank Information

b.    Intellectual Property Ownership

c.     Depositor Information

d.    Exceptions

e.    Unauthorized Use

11)         Mobile Check Deposit (MCD) Service E-Sign Disclosure and Consent

a.     General

b.    Scope of Communications to Be Provided in Electronic Form

c.     Method of Providing Communications to You in Electronic Form

d.    How to Withdraw Consent

e.    How to Update Your Records

f.      Requesting Paper Copies

g.    Communications in Writing

h.    Federal Law

i.      Termination / Changes

12) Miscellaneous Provisions

a.     Relationship of Parties

b.    Notices

c.     No Waiver

d.    Severability

e.    Amendments

f.      Assignments

g.    Consequential and Special Damages

h.    Force Majeure

i.      No Extension of Credit

j.      Recording of Communications

k.     Change in Terms

l.      Governing Law

m.   Jurisdiction/Venue

n.    Entire Agreement

o.    Headings

p.    Communications Between The Bank and You

 

AGREEMENT

 

1)   Services and Service Terms 

The MCD Services (“Services”) are designed to allow you to make deposits to your checking account from a supported Capture Device.   The following terms and conditions apply to the Services for MCD; depositor acknowledges and agrees that the Services or any portion of the Services may be provided by one or more subcontractors.

2)   Acceptance of these Terms

Your acceptance of these terms and/or use of the services constitute your acceptance of this Agreement.   The agreement is subject to change; we will notify you of any material change via email or on our website with a link to the revised agreement.   Further, The Bank reserves the right, in its sole discretion, to change, modify, add, or remove portions from the Services.   Your continued use of the Services will indicate your acceptance of any such changes to the Services.  Upon self-enrollment, you must also agree to the Jeanie® Terms of Use.  “Jeanie” is a trade name registered to Vantiv, LLC, and has been contracted by Home State Bank to provide the MCD Services.

3)   Definitions

 

a.     “Authorized User” means Account Owner/Signer or agent/signer of Account Owner/Signer.

b.    “Banking Day”   means any day which The Bank is open to conduct substantially all of its banking services, but shall not include Saturdays, Sundays or bank holidays.

c.     “Capture Device” means any device acceptable to The Bank, that provides for the capture of images from original Items and for transmission through a clearing process. 

d.    “Check” means an Original Check, as defined in Regulation CC and Check 21 and does not include a Substitute Check or a remotely created check.

e.    “Check 21” means the Check Clearing for the 21st Century Act, as well as Subpart D of Federal Reserve Board Regulation CC, and to the extent applicable, Subpart A.

f.      “Depositor” means the Account Owner/Signer(s).

g.    “IRD” or “Image Replacement Document” means

o   a Substitute Check as defined in Check 21; or

o   the paper reproduction that will be created when an Item cannot be converted to an Electronic Transaction.

h.    “Item” means a Check, money order, cashier’s check, official check, U.S. Treasury check, or any other payment instrument drawn on or payable through an office of a United States financial institution from a Payor to Depositor.

i.      “Payor” means consumers or businesses that make payments to Depositor by means of Items.

j.      “Service(s)” means the specific service(s) provided by The Bank, including electronic check conversion and image archive systems that allow the use of a Capture Device to obtain and transmit the front and back images of Items and accompanying transaction data for the purpose for delivery to The Bank for clearing as an IRD.  Services also include any applicable support services.

k.     “Service Start Date” means the date that the Services are first available to the Depositor.

l.      “Technology” means The Bank’s or its subcontractor’s deposit capture applications and processes designed to facilitate the electronic clearing of Items.  Said applications are accessed through Capture Devices, utilizing software and hardware provided by or acceptable to The Bank, and are proprietary access points to payment processing networks and systems used to complete the clearing of Items.  Technology may include but is not limited to Depositor service support, reports, software, software tools, user interface designs, and documentation, and any derivatives, improvements, enhancements or extensions thereof developed or provided by The Bank or its subcontractors and used in the provision of Services hereunder.  Any software provided by The Bank or its subcontractors pursuant to the Service shall be considered Software as defined in the Software License Agreement.

m.   “Term” shall mean the term of this Agreement beginning as of the Service Start Date until terminated as provided herein.

 

4)   Access

Access.  In order to utilize this service, you will need to self-enroll via the Home State Bank website and click on the Mobile Check Deposit icon.  This will launch the Jeanie® Mobile Check Deposit site.  Follow the enrollment steps.  You will need a Home State Bank check card with a checking account attached as the primary account in order to enroll and have had a checking account with Home State Bank for at least 90 days prior to enrollment.

 

For security, The Bank recommends you:

o   Use a different Login for Mobile Check Deposit than you use for Online Banking or Mobile Banking

o   Never send actual account numbers or other sensitive information via text message or email

o   Delete all text messages from your mobile device after viewing

o   Keep your mobile device operating system up to date

o   Install anti-malware software for Internet browsing on your mobile device

o   Click on the LOGOUT button after each mobile web browsing banking session

o   Use the mobile device Passcode/Password Screen Lock functionality, if available, to avoid unauthorized access to your device

o   Setup email alerts to monitor account balances

o   Do not use Mobile Check Deposit or Mobile Banking or Online Banking via public Wi-Fi networks

o   Install an app that wipes your data remotely in case the device is lost or stolen

o   Do not allow your mobile device to remember login credentials.

 

5)   Depositor Obligations; Suspension/Cancellation of Service

 

a.     Eligible Items.   You agree to scan and deposit only checks as that term is defined in the Federal Reserve Regulation CC (“Reg. CC”).   You agree that the image of the check transmitted shall be deemed an “Item” within the meaning of Article 4 of the Uniform Commercial Code (UCC).   You agree that you will not use the Services to scan and deposit any checks or other Items as shown below:

o          Checks or Items payable to any person or entity other than you.

o          Checks or Items you have not properly endorsed.

o          Checks or Items with third-party endorsements.

o          Checks or Items drawn on a financial institution located outside the United States.

o          Checks or Items not payable in United States currency.

o          Checks or Items containing obvious alteration to any of the fields 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.

o          Checks or Items previously converted to a substitute check, as defined in Reg. CC.

o          Checks or Items that are remotely created checks, as defined in Reg. CC.

o          Checks or Items dated more than 6 months prior to the date of deposit.

o          Checks or Items that are future dated.

o          Checks or Items prohibited or otherwise not acceptable under the terms of your Home State Bank account.

b.    Endorsement.   In order for an Item to be processed for deposit, it must be properly endorsed on the back of the Item.   Checks lacking proper endorsement may be rejected for deposit upon review.  We reserve the right to reject a check or item with a third-party endorsement.

c.     Image Quality.   Items transmitted using the Services must be legible, and must comply with requirements established from time to time by the American National Standards Institution (ANSI), the Board of Governors of the Federal Reserve Board, or any other regulatory agency, clearing house, or associated.  In most cases, the Service will reject an unreadable image at the time the Depositor attempts to submit the image and inform the Depositor at the time that the Service “Cannot read check.  Please retake photo.”  However, if the Item is submitted and accepted, The Bank reserves the right to reject any image that cannot be read properly by any other program during The Bank’s processing of the item.

d.    Depositor Responsibilities.    Depositor agrees to, at its sole expense, or the expense of its Authorized Users:

o          provide connectivity between the Capture Device and the Technology;

o          maintain the Capture Device in accordance with the instructions provided by The Bank, its subcontractors and/or any other Capture Device provider;

o          if applicable, utilize Depositor’s software, or The Bank software to scan, load, and format Items as needed for transmission to The Bank prior to the communicated cut-off time;

o          process return data and any remittance data delivered by The Bank for the purpose of updating Depositor internal systems (which may include electronic and paper return Items); and

o          implement and maintain security measures, including firewall protection, in compliance with its obligations under this Agreement. 

e.    Withdrawal of Access/Suspension of Service.   The Bank reserves the right to deny, suspend or revoke access to the Services immediately, in whole or in part, in its sole discretion, without notice, if The Bank believes Depositor and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Services inconsistent with the terms and conditions hereof.  Further, The Bank or its subcontractor shall have the right to suspend the Service immediately in the event of an emergency or in the event of force majeure as set forth in this Agreement.

f.      Account Statement Examination.   All deposits made through the Services shall be deemed to be correct, unless Depositor notifies The Bank of any errors to deposits made through the Services within 60 days after the applicable account statement is mailed or otherwise provided to Depositor.

g.    Hardware and Software Requirements.   In order to utilize the Services, Depositor must have the following hardware and software with the indicated specifications:

For Enrollment in The Bank Mobile Check Deposit services, Depositor must have computer access with the following minimum configurations:

o         An Intel® Pentium IV 2.6GHz (or faster) PC with 1+ GB of RAM

o         Windows XP operating system SP 2

o         Minimum 20 GB of free hard disk space

o         Internet Explorer 7.0

o         Internet Connectivity with a minimum speed of 1 MBPS

 

                        For depositing checks, the smartphones that are currently support are:

o         Apple® iPhone (3GS and above) and iOS 3.1 or higher.

o         Android™ phones – all models with 2.0 megapixels or greater auto focus camera and Android™ 2.1.1 or higher.

o         BlackBerry® – all models with 3.2 megapixels or greater auto focus camera, (excluding Storm1 phones), BlackBerry OS 5 or higher.

 

 

6)   Payment Processing

 

a.     IRD Processing.   Depositor authorizes The Bank to convert Items to IRDs or transmit as an image and further authorizes The Bank or any other bank to which an Item is sent for process.   Items may be transmitted to a printing facility for printing and clearing through traditional paper processing channels, at The Bank’s sole discretion.  The IRDs will be created in accordance with Check 21; alternatively, The Bank may process Items as photocopies in lieu of originals, under guidelines established between The Bank and Depositor and applicable industry standards.  Items that fail to satisfy the warranties made to The Bank by Depositor, that fail to meet the requirements of The Bank or Check 21, or that are otherwise not able to be processed may be charged back to Deposit’s account and/or returned to Depositor.  Depositor agrees to be bound by any applicable laws, rules and regulations to which The Bank is a party.

b.    Processing of Items.   Images of Items transmitted by Depositor are not considered received by The Bank until Depositor has received an electronic confirmation stating the “Upload Successful!”  We are not responsible for Items we do not receive or for images that are dropped during transmission.   Receipt of the confirmation from The Bank does not mean that the transmission was error free or complete.  The Bank reserves the right to reject any Item transmitted through the Services, at our discretion.  An email will be sent to the email address provided at the time of MCD enrollment notifying Depositor of a deposit that is rejected.  

c.     Handling of Transmitted Items.    Upon receiving electronic confirmation of receipt of an Item, Depositor agrees to prominently mark the Item as “Electronically Presented”; agrees to store the original Item in a safe and secure environment for at least sixty (60) days; and agrees never to represent the Item.  It is recommended that Depositor destroy the original Item after the 60 day waiting period.   Depositor will promptly (but in any event within 5 business days) provide any retained original Item to The Bank when requested to aid in the clearing and collection process to resolve claims by third parties with respect to any Item or as The Bank otherwise deems necessary.

 

d.    AVAILABILITY OF FUNDS – 12:00 Noon Daily Cut-off Time.   Customer understands and agrees that Items transmitted by the Depositor by 12:00 Noon (Mountain Time) will post to your account on the next business day if error free and accepted by The Bank.  Items transmitted after 12:00 Noon (Mountain Time) on a business day, Saturday, Sunday or banking holiday, will be posted on the second business day if error free and accepted by the Bank.

 

e.    Depositor Liability.   Depositor shall be solely responsible if any Item for which Depositor has been given provisional credit is subject to return or reversal, and neither The Bank nor its subcontractors shall be liable or responsible for same.  Depositor acknowledges that all credits received for deposit are provisional, subject to verification and final settlement.  Any dishonored Items will be returned as an image of the original or a substitute check as the charged-back Item.  Information and data reported hereunder:

o          may be received prior to final positing and confirmation and is subject to correction and

o          is for information purposes only and may not be relied upon.  Depositor agrees that The Bank shall have no liability for the content of payment-related information.

f.      Limits.   The Bank reserves the right to impose limits on the amounts(s) and/or number of deposits that you transmit using the Services, and to modify such limits from time to time.  The current limit is $1000 per item and $1000 from 1:00 p.m. (Mountain Time) until 1:00 p.m. the following business day.

g.    Fee DDA Deposit.   The Bank may impose a fee, "Fee DDA Deposit," for each item processed using the Service whether accepted or rejected, and to modify such fees from time to time.  The bank’s current fee is $1 per item.  The Bank may, upon at least 30 days prior notice to you, to the extent required by applicable law, impose or increase the fee charged for the Service.  A reduction in any fee will not require prior notice.  If you use the Service, you agree to pay the current fee on a per item basis from the Home State Bank account in which the deposit is made.  If the billing account is closed, or if the billing account does not have sufficient available funds to cover the fees, you authorize us to charge any such fee to any other deposit account you maintain with The Bank or to reject the item for processing.

 

7)   Warranties and Disclaimers

 

a.     Depositor Warranty.   Depositor represents and warrants to The Bank:

o          Depositor has the authority to enter into this agreement and perform its obligations hereunder and all information supplied by depositor to The Bank is accurate and true;

o          Depositor will provide all reasonable assistance to The Bank and its subcontractors in providing the services set forth herein;

o          Depositor and any Authorized Users will only use the services for lawful purposes and in compliance with all applicable rules and regulations and with The Bank’s reasonable instructions, rules, policies, specifications, terms and conditions, and operating procedures and will not violate any law of any country or the intellectual property rights of any third party;

o          Depositor has only transmitted acceptable Items for deposit and has handled the original Items following transmission to The Bank as agreed, directed by with The Bank and in accordance with applicable law;

o          Depositor is a person authorized to enforce each Item or is authorized to obtain payment of each Item on behalf of a person entitled to enforce an Item;

o          The Items have not been altered;

o          Each Item bears all applicable endorsements in a restricted format as directed by The Bank;

o          All the warranties set forth in and subject to applicable laws and regulatory agencies;

·         The electronic image portion of each Item accurately and legibly represents all of the information on the front and back of the original check as of the time the original check was deposited,

·         The information portion of the Item contains a record of all applicable MICR-line information required for a substitute check, and

·         The Item conforms to the technical standards for an electronic Item as specified by The Bank from time to time;

o          Depositor will submit only one accurate and clear image of the front and back of each Item to The Bank only one time;

o          Depositor will not deposit the original Item and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the Item (either the original Item, or a paper or electronic representation of the original Item) such that the person will be asked to make payment based on an Item it has already paid;

o          The amount of an Item entered by depositor or any Authorized User for transmission to The Bank is accurate; and

o          Depositor and any Authorized Users will not

·         Sell, lease, distribute, license or sublicense the technology or services;

·         Modify, change, alter, disassemble or decompile the technology or services in any way for any reason

·         Provide, disclose, divulge or make available to, or permit use of the technology or services by, any third party;

·         Copy or reproduce all or any part of the technology or services;

·         Interfere, or attempt to interfere, with the technology or services in any way;

·         Engage in spamming, fraudulent, illegal or unauthorized use of the services;

·         Introduce or transmit through the technology or services, without limitation, via any portion of the depositor’s computer system that interfaces with the technology or services, or otherwise, any virus, worm, software lock, drop dead device, Trojan-horse routine, trap door, back door, timer, time bomb, clock, counter or other limiting routine, instruction or design or any other codes or instructions that may be used to access, modify, delete, damage, disable or prevent the use of the technology, services or other computer systems of The Bank or its subcontractors

·         Remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the technology or services; or

·         Engage in or allow any action involving the technology or services that is inconsistent with this agreement.  Should depositor receive notice of any claim regarding the services, depositor shall promptly provide The Bank with a written notice of such claim.

b.    The Bank Warranty.   The Bank warrants that:

o          The Bank has the authority to enter into this agreement and perform its obligations hereunder; and

o          It has developed each service (other than any portion furnished by a subcontractor or third party vendor) and owns and/or has the right to furnish the same (including any portion furnished by a subcontractor or third party vendor.)

c.     Disclaimer.   Except as set forth above in Section 6) b., The Bank and its subcontractors make no representations or warranties, whether express, implied or statutory regarding or relating to any of the technology or services and/or access to or use of the services or technology provided to depositor hereunder.  The Bank and its subcontractors specifically disclaim any and all implied warranties or merchantability, fitness for a particular purpose and noninfringement.  The Bank and its subcontractors also do not guarantee that depositors’ access to the services provided under this agreement will be uninterrupted, error free or secure.  The Bank and its subcontractors also do not guarantee the accuracy of, and specifically disclaim liability for, information or data that is supplied or key-entered by depositor or agents.  The Bank and its subcontractors do not warrant the accuracy, reliability, completeness or timeliness of the content of internet websites or other data received by depositor or payors via the internet.

 

8)     Limitation of Liability / Indemnification.

 

a.     Limitation of Liability.    Notwithstanding anything to the contrary herein, in no event will The Bank’s liability under this agreement for any damages of any kind exceed an amount equal to the amount of Items received by The Bank from depositor for the services during the month preceding the date on which the claim first accrued.  The Bank shall not be liable for any special, indirect or consequential damages, even if it has been advised of the possibility of these damages.

b.    Indemnification.   In addition to its indemnification obligations in this agreement, and except for losses or expenses attributable to The Bank’s own lack of good faith or failure to exercise ordinary care, depositor agrees to indemnify The Bank for any loss or expense sustained (including interest, costs, attorney’s fees and expenses of litigation) resulting from (i) Depositor’s lack of authority to make the warranty in subsection 6.1 (E); (ii) any action taken or not taken by The Bank within the scope of its authority in handling an Item; (iii) any warranty required to be made by The Bank with respect to an Item under applicable law or regulation; and (iv) breach of the warranties in subsections 6.1(A) through 6.1(M).

 

9)    Termination

 

a.     Termination.    In addition to the denial, suspension, revocation and termination provisions in this Agreement, The Bank may immediately terminate the Service or any portion of the Service if The Bank determines that such Service or portion of any Service is in violation of any law or regulation, or in its sole discretion and without notice, decides to cease providing this Service.  Depositor may terminate the Service with notice to The Bank.  Any termination will not affect any obligations arising prior to termination, such as the obligation to process any Items that were processed or in the process of being transmitted or collected prior to the termination date, or any returns of the same.

b.    Obligations upon Termination.     Upon the termination of this Agreement for any reason:

o          Depositor’s access to, and use of, the Services will terminate;

o          Depositor will return to The Bank any and all The Bank Services, equipment, software, documentation, Technology or other deliverables provided to Depositor by The Bank, including any copies thereof held by Depositor;

o          The Bank will deliver to Depositor all Depositor documentation and other materials stored by Depositor on The Bank’s or its subcontractor’s network; and

o          each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information or destroy same, and provide written verification of same.

o          Notwithstanding the foregoing, The Bank’s obligations with respect to subsections of 8) b. shall be subject to The Bank’s record retention policies and applicable laws and regulations.  The provisions of sections 6, 7, 8 and 9 shall survive termination of this Agreement.

 

10)                Confidentiality

 

a.     The Bank Information.    Depositor acknowledges that the Technology and Service contain valuable trade secrets, which are the sole property of The Bank or its subcontractors (“Bank Confidential Information”), and Depositor agrees to hold same in strict confidence and disclose only to those agents whose duties reasonably require access to same, provided that all such agents are informed of such use or disclosure restrictions as set forth herein.  Depositor agrees to use no less than reasonable care to prevent other parties from learning of these trade secrets.  Depositor will take no less than all reasonable steps to prevent the unauthorized use, disclosure, duplication or access to The Bank Confidential Information.

b.    Intellectual Property Ownership.    This Agreement does not transfer to depositor any ownership or proprietary rights in the Technology or any work or any part thereof, and all right, title and interest in and to the Technology will remain solely with The Bank or its subcontractors.

c.     Depositor Information.   The Bank acknowledges that Depositors’ information may contain information regarding its Depositors, which are the sole property of Depositor (“Depositor Confidential Information,” and, collectively with Bank Confidential Information, “Confidential Information”), and The Bank agrees to hold same in confidence and will protect Depositor Confidential Information pursuant to The Bank’s Privacy Policy.

d.    Exceptions.   The obligations of this Section 9 shall not apply to any information that:

o          is now, or hereafter becomes, through no act or failure to act on the part of the receiving party (the “Receiver”), generally known or available;

o          is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records;

o          is hereafter furnished to the Receiver by a third party, as a matter of right and without restriction on disclosure;

o          is independently developed by the Receiver without reference to or use of the disclosing party’s information; or

o          is required to be disclosed by law or in connection with a legal or administrative proceeding, provided that the party to whom the information belongs is given prompt prior written notice of such proposed disclosure, if not otherwise prohibited.

e.    Unauthorized Use.    Both parties acknowledge that the unauthorized use, disclosure or duplication of trade secrets or other confidential information belonging to each party shall constitute a material breach of this Agreement and is likely to cause irreparable injury to the owner, for which there is no adequate remedy at law.  Accordingly, The Bank and Depositor each hereby agree that the other party may seek injunctive relief against it to prevent or remedy any breach of the confidentiality obligations described herein without the other party being required to post bond, or if bond is required, only nominal bond.

 

11)    Mobile Check Deposit (MCD) Service E-Sign Disclosure and Consent

 

a.     General. This MCD Services E-Sign Disclosure and Consent applies to all Communications for those products, services and accounts offered or accessible through the MCD Services that are not otherwise governed by the terms and conditions of an electronic disclosure and consent. Please note that consenting to receive Communications under this Disclosure will not automatically enroll you in MCD Services.

b.    Scope of Communications to Be Provided in Electronic Form. You agree that upon your enrollment for MCD Services we may provide you with any Communications in electronic format, and that we may discontinue sending paper Communications to you, unless and until you withdraw your consent as described below. Your consent to receive electronic communications and transactions includes, but is not limited to.

o All legal and regulatory disclosures and communications associated with the account or the product or service available through the MCD Services for your account. As an example, The Bank may send by e-mail legally required notification of changes to terms and conditions related to the MCD Services.

o Notices or disclosures about a change in the terms of your account or associated payment feature and responses to claims.

o Privacy policies and notices.

o Monthly (or other periodic) billing or account statements for your account(s) or such other Communications we may include from time to time as part of the enrollment in the MCD Services.

o Your consent to receive electronic communications does not automatically enroll you in MCD Services. You must complete a separate enrollment to stop receiving paper account statements (and any other types of Communications we may include in MCD Services) by U.S. Mail.

c.     Method of Providing Communications to You in Electronic Form. All Communications that we provide to you in electronic form will be provided either (1) via e-mail or text message, (2) by access to a web site that we will designate in an e-mail notice we send to you at the time the information is available, (3) to the extent permissible by law, by access to a web site that we will generally designate in advance for such purpose, or (4) by requesting you download a PDF file containing the Communication.

d.    How to Withdraw Consent. You may withdraw your consent to receive Communications in electronic form by contacting us at 1-970-203-6100. At our option, we may treat your provision of an invalid email address, or the subsequent malfunction of a previously valid email address, as a withdrawal of your consent to receive electronic Communications. We will not impose any fee to process the withdrawal of your consent to receive electronic Communications.  However, your access and use of the MCD Services may be terminated. Any withdrawal of your consent to receive electronic Communications will be effective only after we have a reasonable period of time to process your withdrawal.

e.    How to Update Your Records. It is your responsibility to provide us with true, accurate and complete e-mail address, contact, and other information related to this Disclosure and your account(s), and to maintain and update promptly any changes in this information. You can update information (such as your e-mail address) through your Online Banking account or by contacting us at 1-970-203-6100.

f.      Requesting Paper Copies. We will not send you a paper copy of any Communication, unless you request it or we otherwise deem it appropriate to do so. You can obtain a paper copy of an electronic Communication by printing it yourself or by requesting that we mail you a paper copy, provided that such request is made within a reasonable time after we first provided the electronic Communication to you. You may contact us to request a paper copy.  See Communications Between The Bank and You below. We may charge you a reasonable service charge, of which we've provided you prior notice, for the delivery of paper copies of any Communication provided to you electronically pursuant to this authorization. We reserve the right, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically.

g.    Communications in Writing. All Communications in either electronic or paper format from us to you will be considered in writing. You should print or download for your records a copy of this Disclosure and any other Communication that is important to you.

h.    Federal Law. You acknowledge and agree that your consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that you and we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.

i.      Termination/Changes. We reserve the right, in our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide you with notice of any such termination or change as required by law.

 

12)                Miscellaneous Provisions

 

a.     Relationship of Parties.   The Bank and Depositor are independent parties and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between The Bank and Depositor.  Neither The Bank nor Depositor will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

b.    Notices.   Depositor agrees that any notices required or permitted under this Agreement or the Service Agreement may be given electronically.

c.     No Waiver.    The failure of either party to enforce at any time any provision of this Agreement or to exercise any right herein provided shall not in any way be construed to be a waiver of such provision or right, and shall not in any way affect the validity of this Agreement or any part hereof, or limit, prevent or impair the right of either party to subsequently enforce any provision or exercise any right hereunder.

d.    Severability.    The invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of any other term or provision

e.    Amendments.    Unless applicable law provides otherwise, this Agreement may be amended by notice sent electronically or by mail to Depositor at Depositor’s last address known to The Bank to be effective not less than thirty (30) days after the day transmitted or mailed.  The Bank shall not be bound by any modification of this Agreement unless The Bank expressly agrees to the modification in writing.  Depositor shall have the right to terminate the Agreement prior to the effective date of amendment.  This Agreement supersedes all prior agreements and amendments.

f.      Assignment.   Depositor may not assign this agreement.

g.    Consequential and Special Damages.   The Bank shall not be liable under any circumstances for consequential or special damages under this Agreement even if The Bank has been advised of the possibility of such damages.  In the event of any litigation arising out of or in connection with this Agreement, the prevailing party therein shall be entitled to such reasonable attorney's fees and costs of suit as the court may award.

h.    Force Majeure.    Except as otherwise provided by Colorado UCC 4.5, The Bank will not be liable for its inability to perform its obligations under this Agreement when such inability arises out of causes beyond its control, including, without limitation, any act of God, accident, equipment failure, system failure, labor dispute, or the failure of any third party to provide any electronic or telecommunication service used in connection with the execution or cancellation of payment orders, provided The Bank shall have exercised such diligence as the circumstances require.

i.      No Extension of Credit.    Nothing in this Agreement nor any course of dealing between you and The Bank constitutes a commitment or obligation of The Bank to lend money to you or obligates The Bank to extend any credit to you, to make a loan to you, or otherwise to advance funds to you to pay for any payment order contrary to The Bank's published availability schedules.

j.      Recording of Communications.    You and The Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement may be recorded and retained by either party by use of any reasonable means.

k.     Change in Terms.    We may change any term of this Agreement at any time.  If the change would result in increased fees for any MCD Services, increased liability for you, fewer types of available electronic fund transfers, or stricter limitations on the frequency or dollar amount of transfers, we agree to give you notice at least 30 days before the effective date of any such change, unless an immediate change is necessary to maintain the security of an account or our electronic fund transfer service.  We will post any required notice of the change in terms on The Bank’s website or forward it to you by e-mail or by postal mail.  If advance notice of the change is not required, and disclosure does not jeopardize the security of the account or our electronic fund transfer service, we will notify you of the change in terms within 30 days after the change becomes effective.  Your continued use of any or all of the MCD Services indicates your acceptance of the change in terms.  We reserve the right to waive, reduce or reverse charges or fees in individual situations.  You acknowledge and agree that changes to fees applicable to specific accounts are governed by the applicable deposit agreements and disclosures.

l.      Governing Law.   This Agreement is entered into in Colorado, and shall be governed by the laws of the State of Colorado and of the United States, and any rule or regulation of Colorado or a federal agency having jurisdiction over The Bank.  A determination that any provision of this Agreement is unenforceable or invalid shall not render any other provision of this Agreement unenforceable or invalid.  The rights of The Bank under this Agreement are cumulative of all other rights The Bank may have by law or otherwise.

m.   Jurisdiction/Venue.    Venue for any action brought in state court shall be in Larimer County, Colorado. Venue for any action brought in federal court shall be in the State of Colorado.

n.    Entire Agreement.    In combination with other applicable Home State Bank agreements, this Agreement represents the agreement between you and Home State Bank regarding Electronic Banking Services and merges and supersedes all previous and contemporaneous written or oral agreements and understandings regarding the subject of online access. Each of the rules, terms, and conditions set forth in this Agreement stand alone. Any term or condition contained in this Agreement which is inconsistent with the laws governing the Electronic Banking Services will be deemed to have been modified by us and applied in a manner consistent with such laws. If any provision of this Agreement is held to be invalid or otherwise unenforceable, the remainder of the provisions will remain in full force and effect and will in no way be invalidated or otherwise affected.

o.    Headings.    Headings are for reference only and in no way define, limit, construe, or describe the scope or extent of such section.

p.    Communications Between The Bank and You.    Unless this Agreement provides otherwise, you can communicate with us in any one of the following ways (normal business hours are from 9.00 a.m. to 5.00 p.m. Monday through Friday)

o          Telephone.    You can contact us by telephone at 1-970-203-6100, 1-303-682-8906 or 1-866-203-5939

o          E-mail.    You can contact us by e-mail at bank@homestatebank.com . (Please note that banking transactions through MCD Services are not made via e-mail.)

o          Facsimile.    You can contact us by fax at 1-970-667-0745

o          Postal Service.    You can write to us at:  Home State Bank, PO Box 329, Loveland CO  80538

o          In Person.    You may visit us in person at any one of our locations.

·         310 Mountain Ave., Berthoud

·         935 N. Cleveland Ave., Loveland

·         300 E. 29th St., Loveland

·         2695 W. Eisenhower Blvd., Loveland

·         1355 E. Eisenhower Blvd., Loveland

·         303 E. Mountain Ave., Fort Collins

·         3227 Timberline Rd., Fort Collins

·         2337 S. Shields St., Fort Collins

·         7499 Westgate Dr., Windsor

·         636 Coffman St., Longmont

·         565 W. South Boulder Rd., Lafayette

 

PLEASE NOTE.  Home State Bank will never contact you and request that you provide confidential information such your Online Banking Login ID, password, account number or social security number.  If you contact us, however, we may ask for your Login ID, account number, social security number or other information about you to verify your identity or to assist with your MCD Services.  We will NEVER request your account password.

 

 

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