HAWAII COMMUNITY FEDERAL CREDIT UNION
Mobile Check Deposit
This Mobile Check Deposit Agreement (“Agreement”) contains the terms and conditions for the use of the Mobile Check Deposit Service (“Service”) that Hawaii Community Federal Credit Union (“HCFCU”) provides to our members. Mobile Check Deposit” means the deposit of check images via remote check deposit capture services using the Service and HCFCU’s mobile application. “Account” means any one or more deposit accounts you have with HCFCU. By accepting this Agreement you agree to the terms and conditions in this Agreement and any amendments.
1. The Service. The Service is designed to allow you to make deposits to your checking or share accounts from a mobile device by imaging eligible original paper checks and delivering the images and associated deposit information to HCFCU or HCFCU’s designated processor.
As used in this Agreement, “check” refers to the original paper check and “item” refers to the scanned image of the original check that you submit for deposit through the Service.
We reserve the right to restrict the Service to any account. You may not currently use the Service for IRA accounts.
2. Member Eligibility. You must be at least sixteen years of age, and be a member in good standing to be eligible to use the Service. We may revise eligibility requirements for the Service or terminate your eligibility to use the Service at any time without prior notice to you.
3. Acceptance of these Terms. Your use of the Service constitutes your acceptance of this Agreement. This Agreement is subject to change from time to time. HCFCU will notify you of any material change on our website by providing a link to the revised Agreement. HCFCU has made a material change, you will be prompted to accept or reject the revised Agreement the next time you use the Service. Your acceptance of the revised terms and conditions or the continued use of the Service will indicate your consent to be bound by the revised Agreement. Further, HCFCU reserves the right, in its sole discretion, to change, modify, add, or remove features from the Service. Your continued use of the Service will indicate your acceptance of any such changes to the Service.
To use the Service, you must also be enrolled in HCFCU’s eBranch Service. All terms and conditions applicable to your Account and all services that you access, including the eBranch Service, apply to your use of the Service. In the event of any irreconcilable inconsistency, the provisions of the more specific document will control. For example, this Agreement will control over the eBranch Agreement, which will control over the Member Service Agreement. If there is an irreconcilable conflict between what an employee says and written disclosures, the written disclosures will prevail.
4. Limitations of Service. We will attempt to post alerts on our website to notify you of technical or other interruptions in the Service. We do not assume responsibility for any technical or other difficulties or any resulting damages that you may incur. We may impose qualification requirements for members using the Service, and we reserve the right to change the qualifications at any time without prior notice. We reserve the right to change, suspend or discontinue the Service, in whole or in part, or your use of the Service, in whole or in part, immediately and at any time without prior notice to you.
5. Hardware and Software. In addition to the software and hardware requirements to access the eBranch Service, to use the Mobile Check Deposit Service, you must have a supported mobile device with an auto focus camera and a compatible wireless plan. You must obtain the mobile applications as specified by HCFCU from time to time from your device’s app store (e.g., Apple® App Store or Google Play™). After accessing the app, you will be prompted to enroll and will gain access to HCFCU’s Mobile Check Deposit Service. Log on to for current specifications.
You are solely responsible for electronically transmitting deposit items, accessing the Service from HCFCU and for maintaining your scanning equipment in a safe and secure manner. You will be responsible for the payment of all telecommunications expenses associated with your use of the Service. HCFCU shall not be responsible for providing or servicing any equipment for you. Further, we are not responsible for any third party software you may need to use the Service. Any such third party software is accepted by you as is and is subject to the terms and conditions of the software agreement you enter into directly with the third party software provider at time of download and installation.
You agree that it is your responsibility to secure your equipment, mobile devices, and Internet or cellular connections. You agree, to the full extent permissible by law, that HCFCU shall not be responsible for any loss, injury or damages caused by or arising from your use of your computer equipment or software; your Internet service provider; installation, use or maintenance of your personal computer equipment, software, mobile devices, or Internet connectivity, or any use or attempted use of the Service. You further agree that HCFCU may make the Service temporarily unavailable due to scheduled maintenance, technical difficulties, security or other concerns.
You agree that images and files that you transmit through the Service will not contain any viruses or any other disabling features that may have an adverse impact on the network, data, or related systems.
6. Fees and Charges. HCFCU does not charge a monthly service fee for the Service. However, we reserve the right to charge a monthly service fee in the future. If we decide to do so, we will provide you with a notice of change in terms. Standard data and mobile phone rates from your wireless provider may apply. You may be charged access rates depending on your carrier. Please contact your mobile device carrier for additional information.
There may be a charge for additional transactions and optional services as disclosed on our Fee Schedule, which is available online at . You also agree to be responsible for any fees and charges arising out of your use of the Service, including but not limited to fees assessed for any return items. (Fees and charges applicable to “checks” will also apply to any “item” submitted through the Service.) You agree to pay the fees and charges and authorize us to charge your Account or, if sufficient funds do not exist in your Account or overdraft sources, you authorize us to charge any of your accounts at HCFCU.
7. Eligible items. You agree to deposit only “checks” as that term is defined in Federal Reserve Board Regulation CC. When the image of the check transmitted to HCFCU is converted to an Image Replacement Document for subsequent presentment and collection, it shall thereafter be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code.
You agree that you will not deposit any of the following types of checks or other items which shall be considered ineligible items:
· Checks payable to any person or entity other than you (third party checks or checks payable to “cash” are not eligible).
· Any check exceeding $5,000.
· Checks payable jointly, unless deposited into an account in the name of all payees.
· Checks containing an alteration to any of the fields on the front of the check, 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 is drawn.
· Checks with any inconsistencies, such as the numerical amount not matching the written amount.
· Checks that do not have the full Magnetic Ink Character Recognition (MICR) line printed on the check;
· Checks that are remotely created checks, as defined in Regulation CC.
· Checks previously converted to a substitute check, as defined in Regulation CC.
· Checks payable on sight or payable through Drafts, as defined in Regulation CC.
· Checks drawn on a financial institution located outside the United States or located in a United States territory.
· Checks that are not payable in United States dollars.
· Checks dated more than 6 months prior to the date of deposit.
· Checks dated after the date of deposit.
· Checks previously negotiated or “cashed” at an alternate financial institution or other HCFCU branch or deposit channel causing the same drawer’s account to be debited twice.
· Checks that are non-negotiable.
· Checks that are counter or temporary checks.
· Checks that were previously returned for any reason.
· Checks to be deposited to an IRA.
· Savings bonds, traveler’s checks, demand drafts, cash, money orders, or postal orders.
· U.S. Treasury Checks, Federal Reserve Bank Checks, Federal Home Loan Bank Checks, government checks or warrants.
· Checks that require a special endorsement or warranty (e.g., insurance or escrow checks).
· Checks with any endorsement on the back other than that specified in this Agreement.
· Checks that do not have the original signature of the person authorizing the check.
· Checks for which you do not have the original paper check in your physical possession.
· Checks that are in violation of any federal or state law, rule, or regulation.
Deposits of any ineligible check may result in the immediate termination of your use of the Service.
If you have any questions about whether or not a check is eligible for deposit through the Service, contact HCFCU. A check that is not eligible for deposit through the Service may be accepted for deposit or collection at a HCFCU branch or Shared Branching Outlet or via US Mail.
HCFCU reserves the right to modify the checks eligible for deposit through the Service without prior notice.
8. Deposit Limits. You agree that you will not use the Service to deposit more than $5,000 per HCFCU business day. The daily limit is an aggregate amount that applies to all accounts for which you are an authorized signatory. Amounts in excess of $5,000 may be deposited at any HCFCU branch or Shared Branching Outlet. If we permit you to make a deposit in excess of these limits, such deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a deposit at other times. We reserve the right to revise the limits from time to time.
9. Endorsements and Procedures. You agree to restrictively endorse any item submitted through the Service as “HCFCU Mobile Deposit Only” and your signature, or as otherwise instructed by HCFCU. You agree to follow any and all other procedures and instructions for use of the Service as HCFCU may establish from time to time.
10. Processing Items. HCFCU reserves the right to reject or delay processing of any item deposited through the Service, at our discretion. HCFCU is not required to inspect or verify the image to determine its accuracy, legibility, quality, MICR information, or any other matter. HCFCU may contact the drawer of the check to verify its validity, but HCFCU has no duty to do so.
HCFCU may determine the method used to process, clear, present for payment, and collect the item, and may select clearing agents, in HCFCU’s sole discretion. You agree to be bound by any clearinghouse agreements, operating circulars, image exchange agreements, and other arrangements to which HCFCU is a party.
We will review items submitted through the Service and will convert items into “substitute checks” to facilitate the deposit and collection of such items. You understand and agree that electronically transmitting an image does not constitute receipt by us. Log on to HCFCU’s eBranch Service to confirm that the item has been posted to the correct Account for the proper amount.
We are not responsible for items we do not receive or for images that are dropped during transmission.
HCFCU will generally send you an email acknowledging your item transmission. We also will generally send you an email notifying you when an item has been posted to your Account. You also may review posted items through the eBranch Service. You understand that when we acknowledge your item transmission or post an item to your Account, that does not mean that the image contains no errors, or that we are responsible for any information you transmit to us, or that funds are available for withdrawal, or that HCFCU has received payment from the issuer of the check.
All deposits are subject to verification and may be adjusted upon our review. We reserve the right, within our sole and absolute discretion, to reject any remote deposit into your Account.
You agree to regularly review your account transaction history to confirm whether or not transactions have been processed properly, and to contact us immediately in the event of any discrepancy.
11. Availability of Funds. Items submitted using the Service are not subject to the funds availability requirements of Federal Reserve Board Regulation CC. You agree that the image capture and transmitting of items does not constitute receipt by HCFCU. See section 10 above regarding Processing Items. The first $225 of funds deposited using the Service will generally be made available the first business day after the business day that the funds are posted to your Account and the remainder will generally be made available the second business day after business day that the funds are posted to your Account.
Credit is provisional. You remain responsible for any funds credited to your Account if the item is returned unpaid for any reason at any time, irrespective of when the funds are made available to you. HCFCU reserves the right to reject or delay processing of any item deposited through the Service. HCFCU may delay funds availability based on factors that HCFCU, in its sole discretion, deems relevant. You agree that HCFCU is not liable for any loss, costs, or fee you may incur as a result of our chargeback of an ineligible item. To the full extent permitted by law, you agree to indemnify us against any loss we suffer because of our acceptance of an item deposited through the Service.
For determining the availability of your deposits, every day is a business day, except Saturdays, Sundays and federal or credit union holidays.
To avoid delay, you may go to any HCFCU branch or Shared Branching Outlet to deposit the original Check instead of using the Service. You may contact any HCFCU branch for information regarding deposits and availability.
12. Returned Items. If items deposited through the Service are dishonored, rejected, or returned by a clearing agent or collecting bank for any reason, including but not limited to issues relating to the quality of the check image, you agree that an original check will not be returned to you, but that we may charge back the amount of the original check and provide you with an image of the original check, a paper reproduction of the original check, a substitute check, or other Image Replacement Document (IRD). You will reimburse us for all loss, cost, damage or expense caused by or relating to the processing of the returned item. We may debit any of your HCFCU accounts to obtain payment for any item that has been rejected or returned, for any adjustment related to such item or for any warranty claim related to such item, whether or not the rejection, return, adjustment or warranty claim was made timely.
You may not use the Service to deposit a substitute check and you may not deposit an image of the original check through the Service or in any other manner if you receive a dishonored check. You agree to comply with any additional instructions we may provide to you in connection with returned checks.
To redeposit a dishonored remote-deposited check, please bring the IRD of the check and the original check to a HCFCU branch. Applicable fees may be assessed each time a check or item is dishonored. See our Fee Schedule
13. Attempted Cancellation of Mobile Deposit Item. You shall have no right to cancel the deposit of any check after submitting the check image through the Service. However, HCFCU may be able to act on your request to cancel the deposit, but shall have no liability if such cancellation is not implemented or completed. A nonrefundable fee will be assessed. See our Fee Schedule. You agree to indemnify, defend and hold HCFCU harmless for any expenses, losses, or damages incurred in connection with your request.
14. Corrections. You authorize us to initiate any reversing entry or reversing file, and to debit your accounts at HCFCU or elsewhere, in order to correct any rejected or erroneous transaction. You agree to cooperate with any action to reverse a transaction that was rejected or made in error or in violation of this Agreement, and to offset any benefit you receive against any loss we suffer.
15. Errors. You agree to notify HCFCU of any suspected errors regarding items deposited through the Service no later than thirty-one (31) calendar days after HCFCU sends you the first account statement on which the error or problem occurred. Unless you notify HCFCU within thirty-one calendar days after HCFCU sends the first statement on which the error or problem occurred, such statement regarding all deposits made through the Service shall be deemed correct, and you are prohibited from bringing a claim against HCFCU for such alleged error except as otherwise mandated by law.
16. Errors in Transmission. By using the Service you accept the risk that an item may be intercepted or misdirected during transmission. HCFCU bears no liability to you or others for any such intercepted or misdirected items or information disclosed through such errors.
17. Image Quality. The image of an item transmitted to HCFCU using the Service must be legible, as determined in the sole discretion of HCFCU. Without limiting the foregoing, the image quality of the items must comply with the requirements established from time to time by HCFCU, ANSI, the Board of Governors of the Federal Reserve System, or any other regulatory agency, clearinghouse or association used in connection with the Service.
18. Retention and Disposal of Checks. You agree to retain the original check for at least ninety (90) calendar days after the date we have posted the item to your Account. You understand and agree that you must use a high degree of care to protect the original checks and the images of the checks against security risks. These risks include, without limitation, (a) theft or reproduction of the original checks or images (including by employees) for purposes of presentment for deposit (i.e., after the images have already been presented for deposit via the Service) and (b) unauthorized use of information derived from the checks or images. Protect the original checks and the images you would protect cash. During the ninety-day period, you must promptly provide the original check to us within two business days upon our request. After the ninety days, if you dispose of the original check, mark it “VOID” and use a high degree of care when selecting and implementing disposal procedures to ensure that the original checks are not accessed by unauthorized persons during the disposal process and, once destroyed, the original checks are no longer readable or capable of being reconstructed. After destruction of an original check, the image of the check will be the sole evidence of the original check. You agree to cooperate with us to aid in the clearing and collection process, to resolve claims with respect to any item, for HCFCU audit purposes, or for any other matter reasonably requested by us.
19. User Warranties and Indemnification. You make the following warranties and representations with respect to your use of the Service and each image of an original check you submit to us using the Service:
· All information you provide to HCFCU is accurate and true. The information you provided in your Member Service Agreement is true and correct and, in the event any such information changes, you will immediately notify us of the change.
· You will comply with this Agreement and all applicable rules, laws and regulations.
· You agree to indemnify and hold harmless HCFCU from any loss for breach of this warranty provision.
· You created the image of the check submitted through the Service from the original physical paper check.
· Each image submitted through the Service is a true and accurate rendition of the front and back of the original check, without any alteration, and the drawer of the check has no defense against payment of the check.
· The amount, the payee(s), signature(s), and endorsement(s) on the original check are legible, genuine, and accurate.
· No check image submitted to us for deposit has been, nor will be, submitted or resubmitted in any format to us or to any other person for payment and will not cause the same drawer’s account to be debited twice.
· Other than the digital image of an original check that you remotely deposit through the Service, there are no other duplicate images of the original check.
· Each original check was authorized by the drawer in the amount stated on the original check and to the payee stated on the original check.
· You are authorized to enforce and obtain payment of the original check.
· There is no factor that may impair the collectability of the item.
· You have not knowingly failed to communicate any material information to us.
· You have and will retain possession of each original check deposited using the Service for the required ninety (90) day retention period and neither you nor anyone else will submit the original check, a Substitute Check, or any other image of the check for payment.
· You will not use the Service or your Account for any illegal activity or transaction.
· Files and images transmitted to us will contain no viruses or any other disabling features that may have an adverse impact on our network, data, or related systems.
· Neither the original check nor any form of the check or check image has been returned or rejected for any reason.
· Each check or item submitted through the Service meets all of the eligibility requirements set forth in this Agreement.
· You make all warranties that would otherwise apply to the check or item if it had been a paper item deposited to HCFCU;
· You make all encoding, transfer, presentment and other warranties that HCFCU or any correspondent bank are deemed by law to provide to others (e.g., as a reconverting bank) under any law, regulation, operating circular, clearinghouse rule, image exchange network rule, or agreement to which HCFCU or the corresponding bank is a party;
· You are using the Service in good faith, in compliance with all applicable law, without any malicious code or other potentially damaging capabilities;
· HCFCU will not sustain a loss because you have used the Service;
· You will not permit any third party to use the Service to deposit checks to your Account.
You specifically agree that by using Service, you give HCFCU the same warranties and indemnities that HCFCU, as a reconverting bank, would give under applicable law or regulation. You agree that all of the warranties deemed given by a depositor of a check to a bank under the Hawaii Uniform Commercial Code ("UCC") shall also apply to the item that you submit using the Service, the same as if it were a paper check within the meaning of the UCC as adopted by the State of Hawaii. Accordingly, except to the extent that any warranties deemed given under the UCC are expressly superseded by the Check 21 Act or the Check 21 regulations under Regulation CC, you give HCFCU all the same warranties you would have given under the UCC for the deposit of an original check by transferring to HCFCU: (a) the image of the check; (b) any Image Replacement Document or other item purporting to be a Substitute Check (as defined in Regulation CC); or (c) any electronic image that purports to represent an original check. The above warranties are deemed given to HCFCU and any person to whom HCFCU transfers, presents or returns any image of any check, or any replacement therefor created by HCFCU or any subsequent person.
20. Cooperation with Investigations. You agree to cooperate with HCFCU and law enforcement in the investigation of unusual transactions, poor quality transmissions, and resolution of member claims, including by providing, upon request and without further cost, any originals or copies of items deposited through the Service in your possession and your records relating to such items and transmissions.
21. Termination. You may, by written request, terminate the Service provided for in this Agreement. In the event of termination of the Service, you will remain liable for all transactions performed on your Account, and for any obligation to indemnify, defend or hold HCFCU harmless. Upon termination, you will immediately cease using the Service and you shall promptly remit all unpaid monies due under this Agreement, if any. HCFCU may terminate this Agreement at any time, with or without cause. HCFCU may immediately suspend or terminate your access to the Service in the event that HCFCU reasonably determines such suspension or termination is necessary in order to protect the Service or HCFCU from harm or compromise of integrity, security, reputation, or operation or that you are in breach of this Agreement or are otherwise using the Service in a manner inconsistent with the terms of this Agreement or with applicable law.
22. Compliance with Laws. You agree to use the Service only for lawful purposes and in compliance with all applicable laws, rules and regulations and this Agreement. You warrant that you will only submit images of eligible checks for deposit and have handled the original checks in accordance with applicable laws, rules and regulations and this Agreement.
23. Logging On and Logging Off. It is important that you close all other windows before accessing the Service, and that you not open other windows while you are logged on to the Service. It is also important that you end each session by properly logging off of the Service and closing the window for the Service. Having other windows open while you are logged on to the Service, or failing to log off of the Service and closing the window properly, may increase the risk of unauthorized access to your account.
24. Security Procedures. You agree to the security procedures ("Security Procedures") used by HCFCU in connection with the Service, as described below. As part of the Security Procedures, HCFCU may employ various authentication technologies, including, but are not limited to, use of User IDs, passwords and other "Additional Authentication Information" ("AAI") that HCFCU may require you to provide at HCFCU's sole discretion.
You understand and agree that you will be responsible for maintaining security and control over your User ID, password, and AAI, and shall use security for such items comparable to the security and control you would use for cash, but in no event less than reasonable security and control in the circumstances.
HCFCU will never contact you by email, telephone, mail or other type of correspondence and request your PIN, password, username, or other access code. If you are contacted by anyone asking for your PIN, password, username or other access code, you should refuse and immediately contact HCFCU. You may be the victim of identity theft.
If you have reason to believe that any Security Procedure has or may have become known by unauthorized persons, notify HCFCU at (808) 930-7700 or (800) 514-2328 immediately by telephone. You will be solely liable for all transactions initiated before HCFCU has received such notification and has had a reasonable opportunity to act on such notification except as otherwise provided by law.
HCFCU reserves the right to change any or all of the Security Procedures at any time to protect the integrity of the system. You agree that your use of the Service Services after HCFCU provides notice of such changes constitutes your acceptance of the new Security Procedures. You acknowledge that the purpose of Security Procedures is to authenticate the identity of the person initiating the action, not to detect errors in any transmission or content. HCFCU is not agreeing to any Security Procedures or other procedure for the detection of errors. You represent that you consider the Security Procedures for the Service to be commercially reasonable with respect to the size, type, and frequency of deposits you anticipate submitting.
25. Safeguards. Safeguard your mobile device, checks and items submitted through Service. If you lose a check, notify HCFCU at (808) 930-7700 or (800) 514-2328 immediately by telephone. Do not allow others to access your mobile device, or leave it unattended or unlocked when not in use. Frequently delete text messages from HCFCU, especially before loaning, discarding or selling your mobile device. If you install third-party apps on your mobile device, your mobile device could be compromised by malicious code that is designed to access files or passwords. Before downloading or installing a banking app or shortcut on your mobile device, verify that it is the authorized and genuine app from HCFCU. Do not click on any active links in any suspicious emails. Contact HCFCU at (808) 930-7700 or (800) 514-2328 immediately as you may be the victim of identity theft.
26. Your Responsibilities. You are solely responsible for the quality, completeness, accuracy, validity and integrity of the image submitted through the Service. You are solely responsible for any fraudulent, incorrect, illegible, unauthorized, inaccurate, incorrect or otherwise improper or unusable images submitted to us for any of your accounts or by anyone using your device or password except as otherwise provided by law.
In addition you agree that you will not modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or Service, copy or reproduce all or any part of the technology or Service; or interfere, or attempt to interfere, with the technology or Service. We and our technology partners retain all rights, title and interests in and to the Service and software made available to you.
27. Ownership & License. You agree the HCFCU retains all ownership and proprietary rights in the Service, associated content, and technology. Your use of this service is subject to and conditioned upon your complete compliance with this Agreement. Without limiting the effect of the foregoing, any breach of this Agreement immediately terminates your right to use the Service. Without limiting the restriction of the foregoing, you may not use the Service (a) in any anti-competitive manner, (b) for any purpose which would be contrary to HCFCU’s business interest, or (c) to HCFCU’s actual or potential economic disadvantage in any aspect. You may not copy, reproduce, distribute or create derivative works from the content and agree not to reverse engineer or reverse compile any of the technology used to provide the Service.
28. DISCLAIMER OF WARRANTIES. YOU AGREE YOUR USE OF THE SERVICE AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HCFCU DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO THE USE OF THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. HCFCU MAKES NO WARRANTY THAT THE SERVICE (A) WILL MEET YOUR REQUIREMENTS, (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (D) ANY ERRORS IN THE SERVICE OR TECHNOLOGY WILL BE CORRECTED.
29. LIMITATION OF LIABILITY. YOU AGREE THAT HCFCU WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE INCURRED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE USE OF, INABILITY TO USE, OR THE TERMINATION OF THE USE OF THIS SERVICE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF HCFCU HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
YOU FURTHER AGREE THAT HCFCU WILL NOT BE LIABLE FOR ANY DAMAGES THAT ARISE, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM ANY OF THE FOLLOWING: (A) ANY ERROR, FAILURE OR DELAY IN THE TRANSMISSION OR DELIVERY OF DATA, RECORDS, CHECKS OR ITEMS; (B) ANY DIFFICULTY WITH THE CHECK IMAGE, FILE, OR OTHER TRANSMISSION; OR (C) ANY NONPAYMENT OR RETURN OF ANY CHECK OR ITEM.
30. DIRECT DAMAGES. HCFCU’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY YOU AND ONLY TO THE EXTENT SUCH DAMAGES ARE A DIRECT RESULT OF HCFCU’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT THE MAXIMUM AGGREGATE LIABILITY OF HCFCU RESULTING FROM ANY SUCH CLAIMS SHALL NOT EXCEED THE TOTAL FEES, IF ANY, PAID BY YOU TO HCFCU FOR THE SERVICE, RESULTING IN SUCH LIABILITY IN THE SIX MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED, OR $100 WHICHEVER IS GREATER. IN NO EVENT SHALL HCFCU BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND INCLUDING LOST PROFITS WHETHER OR NOT HCFCU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. HCFCU’S LICENSORS AND SUPPLIERS WILL NOT BE SUBJECT TO ANY LIABILITY TO YOU IN CONNECTION WITH ANY MATTER TO THE FULL EXTENT PERMITTED BY LAW.
31. YOUR DUTY TO INDEMNIFY HCFCU. YOU UNDERSTAND AND AGREE THAT YOU INDEMNIFY, DEFEND AND HOLD HARMLESS HCFCU AND ITS DIRECTORS, OFFICERS, EMPLOYEES, MEMBERS AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, COSTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES ARISING FROM ANY USE OF THE SERVICE BY ANYONE FOR YOUR ACCOUNT AND FOR ANY BREACH OF THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
32. Enforcement. To the full extent permitted by law, you agree to be liable to HCFCU for any liability, loss, or expense as provided in this Agreement that HCFCU incurs as a result of any dispute involving your accounts or services. You authorize HCFCU to deduct any such liability, loss, or expense from your account without prior notice to you. This Agreement shall be governed by and construed under the laws of the State of Hawaii as applied to contracts entered into solely between residents of, and to be performed entirely in, such state. In the event either party brings a legal action to enforce the Agreement or collect any overdrawn funds on accounts accessed under this Agreement, the prevailing party shall be entitled, subject to Hawaii law, to payment by the other party of its reasonable attorney’s fees and costs, including fees on any appeal, bankruptcy proceedings, and any post-judgment collection actions, if applicable.
HCFCU may waive enforcement of any provision of this Agreement. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of this Agreement. In the event that any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, such provision shall be deemed revised and enforced to the maximum extent permitted by law, and the remainder of the Agreement shall not be impaired or otherwise affected thereby.
33. Limitation of HCFCU’s Liability. HCFCU does not warrant that the Service will be error-free, uninterrupted, timely, or secure. HCFCU will only be liable to you for damages arising directly from HCFCU’s intentional misconduct or gross negligence in the performance of the Service. HCFCU will not be liable for any damages that arise, directly or indirectly, in whole or in part, from any of the following:
· Your actions or omissions, or those of third parties who are not within HCFCU’s immediate and reasonable control;
· Your negligence, breach of any agreement with HCFCU, or failure to follow instructions;
· Any ambiguity, inaccuracy or omission in any information provided to HCFCU;
· Any error, failure or delay in the transmission or delivery of data, records. or items;
· Any question regarding the authority of any person to act through the Service on your behalf or any account owner;
· Any question regarding transactions made through the Service on any of your accounts;
· Any difficulty with the check image, file, or other transmission;
· Any nonpayment or return of any check or item;
· Any virus or malware attack;
· Any unavailability or failure of any system, data processing, computer, software, telecommunication or internet provider service;
· Circumstances beyond HCFCU’s control (such as fire, flood, power failure, labor dispute, computer breakdown, telephone line disruption, or a natural disaster);
· Any unavailability of the Service;
· Any limitations placed on transactions by a government agency, a clearinghouse or an exchange network rules or guidelines.
You agree that the aggregate annual liability of HCFCU for your use of the Service shall be limited to the greater of the annual fee (if any) charged by HCFCU to maintain your Account or the annual fee (if any) for the Service charged by HCFCU, but in no event more than $100.00. Any action against HCFCU with respect to the Service must be commenced within twelve (12) months from the date of the event giving rise to the proceeding. If HCFCU is liable to pay you any interest, the rate paid will be the then current interest rate which deposits in your Account earn. If your Account does not pay interest, the rate paid will be the applicable Federal Funds interest rate. You agree to cooperate with any loss recovery efforts and to subrogate HCFCU to your rights to the extent of any liability.
34. Business Accounts. If the Service is used for your organizational, business or other non-consumer accounts (collectively referred to as “business accounts”), or for any business purpose, you agree that HCFCU has no liability for any and all losses incurred in connection with use of the Service for a business account or for any business purpose, and you agree to indemnify, hold harmless, and defend HCFCU for any loss it suffers because of any use of the Service by you or with respect to any of your business accounts or for any business purpose.