- GENERAL DEPOSIT ACCOUNT TERMS
- TRUTH IN SAVINGS DISCLOSURES FOR CERTIFICATES OF DEPOSIT ACCOUNTS
- TRUTH IN SAVINGS DISCLOSURES FOR ONLINE SAVINGS ACCOUNTS
- ONLINE BANKING SERVICES AGREEMENT
- MOBILE BANKING SERVICES AGREEMENT
- PROVIDER END USER TERMS (FOR ONLINE AND MOBILE BANKING)
Effective: March 25, 2019
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION. UNLESS YOU TIMELY REJECT (OR TIMELY REJECTED) THE ARBITRATION PROVISION, IT WILL GOVERN ALL YOUR DEPOSIT ACCOUNTS WITH US AND WILL SUBSTANTIALLY AFFECT YOUR RIGHTS IN THE EVENT OF A DISPUTE. THIS INCLUDES YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION.
Thank you for opening a Comenity Direct Deposit Account.
Please read this Agreement carefully since it includes important information on the features of your Account and your and our responsibilities.
Your deposits are insured by the FDIC up to the maximum limits allowed by law. Information and tools describing how deposit insurance coverage works are provided by the FDIC at www.fdic.gov or by calling 1-877-ASK-FDIC or 1-800-925-4618 (for the hearing impaired).
A. GENERAL DEPOSIT ACCOUNT TERMS
Capitalized terms and other terms you see in this Agreement have the following meaning unless we note otherwise:
- Account or Deposit Account means a deposit account that we offer, including certificates of deposit.
- Arbitration Provision means the arbitration provision appearing at the end of this Agreement.
- Bank, we, us and our mean Comenity Capital Bank, which may also be referenced by our brand name, Comenity Direct.
- Business Day means Monday through Friday, excluding federal holidays.
- Item means any promise, instruction or order to pay money handled by us for collection or payment. Items include checks, substitute checks, purported substitute checks, ACH and other electronic fund transfers, drafts, remotely-created checks, withdrawal slips, wire transfers, transfer instructions (regardless of how given or received), image replacement documents, deposit adjustments and images of any of these things.
- Linked Account means an external account that you designate for electronic transfers from your Account with us.
- Login Credentials means your user ID, password and any other authentication method as may be required by us.
- Mobile Banking is a suite of services that we make available, enabling you to conduct banking transactions with us by using your Mobile Device.
- Mobile Device means a cellular telephone or similar wireless communications device (1) that is installed with our software ("Mobile Banking Software") that you have downloaded in order to conduct Mobile Banking transactions, or (2) that is capable of conducting Mobile Banking transactions by using other protocols we may choose to permit.
- New Account is each Account that has been opened for 30 days or less.
- Notice Address means Comenity Direct, P.O. Box 3900, Springfield, MO 65808-3900.
- Online Banking, Online Services and the Services means access which allows you to perform banking inquiry, transfer and transaction functions through the use of a personal computer device, mobile device and the internet to access the services offered by the Bank.
- You, Your, User, Customer and other similar terms means every owner of the Account and any person who has the right or is authorized to withdraw funds from the Account.
- Website means comenitydirect.com.
- We have written this Agreement in plain language, which means that we have avoided legal jargon where possible and have used examples to illustrate ideas. The examples we give are not intended to be the only application of the provision we are explaining.
- The section and subsection headings used in this Agreement are for your convenience and may not be used to limit the provisions they introduce.
- Any reference in this Agreement to the terms, a policy of ours, another agreement between us, a disclosure we provide, a notice we provide, a governmental regulation or a law refers to this Agreement, as amended, altered or revoked from time to time.
- Words and phrases used in this Agreement should be interpreted so that the singular includes the plural and the plural includes the singular unless this would result in an inconsistency.
- If this Agreement is inconsistent with any applicable law, then to the extent the law can be amended or waived by contract, you and we agree that this Agreement governs and that the law is amended or waived by this Agreement. To the extent the law cannot be amended or waived by contract and this Agreement is in any way ambiguous, this Agreement should be interpreted as being consistent with the law. Any rights we have under this Agreement should be interpreted as being given to us to the fullest extent permitted by law and only to such extent.
You agree to be bound by this Agreement when you click to accept the terms, complete other Account opening documents, request an account, open an Account, transact on an Account or maintain an Account. We will give you a copy of this Agreement when you open your first Account. If you later need another copy of this Agreement, please visit our Website.
Your Account is also governed by the following (as applicable): any terms you acknowledged or accepted in the Account opening process; any other written agreement between us and you relating to any Account covered by this Agreement; the E-Sign Agreement, our Financial Privacy Notice; our Online Privacy Notice; and any disclosures, agreements or notices provided at the time of Account opening or later. You agree that these documents and this Agreement are the final and complete agreement between you and us concerning your Account. Any statement concerning your Account made by any of our employees or others is not part of this Agreement.
5. Electronic Signatures and Records
When you sign Account-related documents or agreements electronically, you agree that the electronic signature you provide or the action you take to show your consent (e.g., clicking a checkbox to show your consent) is the same as a “wet” signature that you would have provided by signing your name to a paper document and has the same legal effect as a signature by your own hand. You agree that we may retain records relating to your Account electronically and that you will not contest the validity, authenticity or enforceability of any such records or an electronic signature because they are in electronic form.
We offer Online Savings Accounts and CD Accounts. An “Online Savings Account” allows you to make deposits by check, Automated Clearing House Transfer (“ACH Transfer”), wire transfer, or transfer from another account you maintain at the Bank. Withdrawals may be made from an Online Savings Account, although there are certain restrictions compared to a checking account, and described later in this Agreement. “CD Accounts” allow you to make your deposit of principal by check, ACH Transfer, wire transfer, or from another Account you maintain at the Bank. A CD Account may be opened for a specific time period, or “term” which ends on a maturity date. Early withdrawals of principal prior to the maturity date are restricted. We will not issue evidence of account ownership, such as a passbook (for Online Savings Accounts) or a certificate (for CD Accounts).
(a) Accepting, rejecting and returning deposits.
We may at any time refuse any deposit, limit the amount you may deposit or return all or any part of any deposit. We may accept an Item for deposit into your Account from any person without determining or verifying his or her identity. Your opening deposit must be made by ACH transfer only. Subject to applicable law and Section 8, we may hold any deposit until we have reasonable assurance that it will not be returned as unpaid. And, we may hold Items we do not accept until you claim them.
(b) Counterfeit/unauthorized deposits.
We may debit any Account you have with us without advance notice to you for the amount of any fraudulent, forged or counterfeit Item deposited into the Account. You may not deposit any Item you know or have reason to know is fraudulent, counterfeit or not properly authorized. If you deposit a remotely created check or other unsigned Item, you promise that it is authorized and you agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all claims, losses, costs and expenses that you or we may incur as a result of a claim that such Item was not authorized. If, before being paid, someone claims that an Item was altered or had a forged or unauthorized signature or was otherwise not properly payable, we may not credit your Account for the amount in question until the claim is resolved.
(c) Items returned unpaid.
We may debit any Account you have with us without advance notice to you for any Item that is returned unpaid (or that we have been notified will be returned unpaid) for any reason, even if we previously credited your Account for the Item.
(d) Deposits and overdrafts.
We may use any deposit to any Account you have with us to pay any overdraft on your Account or fees you owe us.
(e) Errors in amount of deposit.
We are not responsible for errors made by others in the process of collecting an Item or for lost or delayed Items. We are not liable to you for any error you make in submitting a deposit. If you notify us of the error and we can correct it without loss to us we will do so. Although we may rely on information you supply us about the amount of a deposit and provisionally credit your Account for this amount, all deposits are subject to our verification. If we determine that the amount you supplied us differs from the amount we later verify, you agree that the verified amount controls and that we may debit or credit your Account for any difference. We may correct any mistake we make concerning the Account without any liability to you apart from actual damages you incur as a direct result of our error.
(f) Lost/destroyed Items.
If an Item is lost or destroyed while it is being collected, we will try to replace it with a copy. If we cannot, we may ask you to obtain a replacement from the person who issued the Item.
We may accept for deposit an Item without endorsements or we may require the endorsement of one or all Account owners before accepting an Item. We may refuse to accept an Item that is endorsed by a person who is not an owner of the Account. We may accept an Item payable to one Account owner even if endorsed by another. We may require verification for any endorsement through either an endorsement guarantee or personal identification.
(h) Materials on the back of a check you deposit.
If any printing, stamps, endorsements or other materials appear on the back of a check outside the area extending 1.5 inches from the trailing edge of the check (i.e., the left side of the check when viewing it from the front), such materials could interfere with endorsements by banks and cause delays in processing the check. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all claims, losses, costs and expenses that we or you may incur as a result of processing delays caused by printing, stamps, endorsements or other materials on the back of any check deposited to your Account that extend outside the area extending 1.5 inches from the trailing edge of the check.
(i) Errors by others in processing check you deposit.
We are not liable for losses caused by the failure or willful or negligent action of any correspondent, agent or subagent or for losses in the course of the collection process. We are not liable for losses resulting from any check being misrouted or from a delay in the return of any check because of the illegibility of a depository institution’s endorsement caused by markings or other materials placed on the back of the check at the time you deposited it.
(j) Crediting of non-cash Items.
Items we accept for deposit (other than cash) are credited subject to collection and final payment and in accordance with our Funds Availability Policy. Such Items, if not paid, may, at our option, be charged back against any credit or Account on our records in your name or set-off as permitted by law and this Agreement (see Section 20 captioned Lien on Deposits; Right to Set-Off), whether or not the unpaid Item itself is returned to you.
(k) Remotely created checks.
If you deposit any “remotely created check,” as defined in Federal Reserve Regulation CC, 12 C.F.R. § 229.2(fff), then you promise us that the holder of the Account upon which it is drawn authorized the issuance of the check for the amount and to the payee shown on the check. If anyone claims otherwise, you agree that we may immediately charge the amount of such check, plus any claimed interest, costs and damages, against your Account. If there are insufficient available funds in your Account to cover the amount of that charge, we will treat the deficiency as an overdraft. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all damages, losses, costs and expenses we incur in connection with any claim that a remotely created check should not have been honored or was not properly created or deposited in your Account, including consequential and punitive damages, and our own reasonable attorneys’ fees and costs in investigating and responding to any claims, whether or not litigation results.
(l) Waiver of Notice of Dishonor.
You waive any notice of non-payment or dishonor regarding any Items credited or debited to your Account. Accordingly, if a check or other Item, which you deposited, is dishonored and returned to us, we are not required to notify you of the dishonor.
8. making withdrawals and funds transfers
You may withdraw available funds from your Account by External Transfer to a Linked Account at any time (described in Section E - Online Banking). You may also withdraw available funds by wire transfer (described in Section 40), or by requesting that we issue a paper check, however we may restrict these types of withdrawals until after your Account has been open for 30 days. If you have multiple Online Savings Accounts, you may also conduct internal transfers between accounts by telephone. We will charge a fee for paper check and wire requests as provided in your Account disclosure at Section(s) C and/or D of this Agreement. Early withdrawals from a CD Account are subject to the penalties described in your Account disclosure. Online Savings withdrawals are subject to the transaction limitations described in your Account disclosure. We may restrict the types of withdrawal or transfer available for New Accounts (accounts that have been opened for 30 days or less).
9. WHO CAN MAKE DEPOSITS AND WITHDRAWALS AND GIVE US INSTRUCTIONS
(a) Designating such people.
You agree to follow our procedures for designating who is authorized to make deposits to and withdrawals from the Account and who is authorized to provide other instructions to us concerning the Account. We may rely upon your designations until we have received notice of a change in designations, at the place and in the form that we require, and have had a reasonable opportunity to act on the notice.
(b) Inconsistent instructions.
We may honor Account instructions from any person authorized to provide instructions even if they are inconsistent with instructions provided by any other authorized person. We may recognize adverse claims with respect to Accounts as permitted or required by applicable law. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all damages, losses, costs and expenses we may incur as a result of any inconsistent instructions, adverse claims or disputes involving your Account, and you authorize us to deduct such amounts from any Account you have with us or with any of our affiliates without prior notice to you.
Any instruction we receive is subject to verification and, if permitted by law, may be deemed to have been received by us on our next Business Day.
10. JOINT, Payable-On-Death and Trust (MultiPLE-Party) ACCOUNTS
The provisions in this Section apply to multiple-party accounts.
(a) What is a multiple-party account?
If you have designated this Account as a joint, payable-on-death (P.O.D) or trust Account, then this Account is a multiple-party Account subject to applicable law. A party to a multiple-party account is a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A beneficiary of a trust account, and a P.O.D payee of a P.O.D account, is party to a multiple-party account only after the account becomes payable to him or her by reason of his or her surviving the original payee(s) or trustee(s).
Unless this Agreement expressly provides otherwise, upon the death of a party to a multiple-party, all of the funds in the account will belong to the surviving party or parties in accordance with applicable law but there shall be no such right of survivorship with respect to multiple trust beneficiaries or P.O.D payees who become parties to the account.
All monies and Items deposited in a multiple-party Account may be withdrawn at any time, in whole or in part, by any party to the Account (subject to any limitations on the Account, or we place on large withdrawals). We may pay the balance of the Account to any party to the Account even if another party is deceased. If a party to the Account becomes incompetent, we may pay the balance of the Account to any party, even if we have received notice of an adjudication of incompetency and appointment of guardian.
Each party to the multiple-party Account authorizes every other party to endorse and to deposit to the Account any Item payable to one, both or all of them, and authorizes us to accept for deposit any Item payable to one, both or all of them with or without endorsement. We may honor Account instructions from any party to the Account even if such instructions are inconsistent with instructions given by any other party or parties.
A multiple-party account does not include a trust account under a testamentary trust, declaration of trust or a trust agreement which has significance apart from a fiduciary or agency account arising from a fiduciary or agency relationship.
We may make payment from a multiple-party Account, including payment of the entire Account balance: (i) pursuant to any statutory or common law right of set off, levy, attachment or other valid legal process or court order, relating to the interest of any one or more of the parties; and (ii) on request by a trustee in bankruptcy, receiver in any state or Federal insolvency proceeding, or other duly authorized insolvency representative of any one or more of the parties. We have no liability for payments made pursuant to applicable law and this Agreement.
Unless there is clear and convincing evidence of a different intent or applicable law otherwise provides, during his or her lifetime, each party to a multiple-party Account owns the funds in the Account in proportion to his or her net contribution to the Account. We are not required to determine any such net contribution. Ownership of a multiple-party Account cannot be changed by will.
We report information to federal, state and local taxing authorities on interest and other forms of income you receive relating to your Account. For multi-party Accounts, tax reporting will be provided using the Social Security Number of the “primary” Account owner, which refers to the first owner listed on the Account. Any tax-related communications provided to the primary Account owner is deemed to have been provided to all Account owners.
(i) Joint and several liability.
Each party to a multiple-party Account is jointly and severally liable to us for all fees, charges, losses, liabilities and other amounts owed to us in connection with the Account.
You authorize each party to operate the multiple-party Account without the consent or approval of any other party, and you agree that we may act on any instruction of a party without liability to any other party. This is true even if the Account is in the name of one party "and" another party. Examples of instructions we may act on include, but are not limited to, adding another party to the Account, stopping payment on an Item, changing the form of the Account, prohibiting withdrawals from the Account, arranging for the Account to be pledged as security, closing the Account, transferring money out of the Account to another Account with different owners, disclosing the transactions of other parties and issuing devices to access the funds in the Account.
Your state may impose requirements on multiple-party Accounts, including requirements as to how such Accounts must be titled. You are solely responsible for complying with these requirements.
You agree that there are circumstances under which we are required to place a hold on your Account, even if the reason for the hold on your Account relates to an action or inaction of a joint Account holder. Applicable law currently exempts us from placing a hold on an Account that is held by a married couple where one of the spouses is not a judgment debtor. You agree that because we are unable to determine with certainty whether you are married at any given time, a hold may be initially placed on the Account. Under these circumstances, you agree to immediately provide evidence satisfactory to us of marriage.
A custodian or guardian must provide us with a copy of the document establishing the appointment. Once we accept the documentation, we may act in good faith, on the instructions of or otherwise deal with the custodian or guardian. In the absence of knowledge, we are not responsible for determining the validity or propriety of the purported custodian or guardian designation, any act of the purported custodian or guardian, or any instrument or instructions executed or given to establish the appointment. Guardians and custodians may also establish Accounts for the benefit of persons under their care. If we agree to open the Account, we will honor the terms and conditions of the appointment to the extent that they are consistent with this Agreement and our policies.
Any individual acting as attorney-in-fact, agent, personal representative, designee authorized to make withdrawals and/or give us instructions, trustee, custodian or fiduciary (collectively, an “Agent”) must be designated as such on our records based on our receipt of the documentation establishing the appointment. You authorize us to honor Account instructions of your Agent regarding your Account until we receive written notice that the agency or fiduciary relationship has been terminated or actual notice at our Notice Address of your death or incompetency. No such notice is effective until we have had a reasonable opportunity to act upon it. We will not be liable to you in any way if your Agent misapplies any of the funds from your Account. We have the right to review and retain a copy of any power of attorney, agency agreement, trust agreement, court order or other document that has established the agency or other fiduciary relationship. Unless prohibited by law, we may, in our sole discretion, refuse to honor a power of attorney or require that it be in a form satisfactory to us. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all damages, losses, costs and expenses we may incur as a result of our honoring a power of attorney. We may require that your Agent confirm in an affidavit that the power of attorney has not been revoked or that you register the power of attorney with the appropriate recording authorities. We may restrict the types and/or sizes of transactions we permit your Agent to conduct.
13. Verification of Items and Transactions
All Items and transactions when received will be subject to verification by us and, in our discretion, and to the extent permitted by applicable law, may be deemed to occur on our next Business Day.
14. Automated Check Collection
You recognize that we have adopted automated collection and payment procedures so that we can process the greatest volume of Items at the lowest possible cost to all customers. These automated procedures rely primarily on information encoded onto each Item in magnetic ink. In recognition of this fact, you agree that in paying or taking an Item for collection, we may disregard all information on the Item other than the drawer’s signature, the identity of the drawee bank, the amount of the Item and information encoded onto the Item in magnetic ink according to general banking standards in our community, whether or not that information is consistent with other information on the Item. You may not place statements on an Item that make the Item conditional or otherwise affect its negotiability. YOU MAY NOT REQUIRE THAT THERE BE TWO OR MORE DRAWERS’ SIGNATURES ON AN ITEM IN ORDER FOR IT TO BE VALID, AS ANY SUCH DESIGNATION IS SOLELY FOR YOUR CONVENIENCE AND INTERNAL CONTROL PURPOSES AND NOT BINDING ON US. YOU ALSO MAY NOT PLACE ON AN ITEM ANY OTHER INSTRUCTIONS TO US. IF YOU DO, AND THE ITEM IS PRESENTED TO US, WE MAY, IN OUR DISCRETION, NOT HONOR YOUR STATEMENTS OR INSTRUCTIONS AND PAY THE ITEM OR RETURN THE ITEM UNPAID. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all damages, losses, costs and expenses we may incur as a result of your issuing or depositing an Item containing such statements or instructions including, but not limited to, maximum amount limitations, date limitations, two signature requirements, etc. You agree that we do not fail to exercise ordinary care in paying an Item if our procedures involve limited or no sight examination of Items we process.
15. FUNDS AVAILABILITY
(a) Delayed Availability.
We may delay the availability of funds from your deposits. There are exceptions that may apply in certain circumstances and special rules that apply to New Customers (as defined below). During the delay, you may not withdraw funds and may not use the funds. In accordance with the provisions in this Agreement, interest will be paid on deposits we receive, even if the funds are not yet available for withdrawal.
(b) Day of Deposit.
If we receive a deposit before 5:00 PM CT on a Business Day, we will consider that Business Day to be the day of your deposit. However, if we receive a deposit after 5:00 PM CT or on a non-Business Day, we will consider that the deposit was made on the next Business Day.
(c) Availability of Wire Transfer Deposits.
Funds from wire transfers to your Account that you initiate through another bank will be available on the Business Day we receive the deposit.
(d) Availability of ACH Transfer Deposits.
Unless you are a New Customer (defined below), funds from ACH Transfers will generally be available on the fifth Business Day after the day the ACH Transfer is deemed to be received by us but may be available earlier, depending on the type of ACH Transfer.
(e) Availability of Internal Transfers Between Accounts at the Bank.
When you transfer funds from one of your Accounts with us to another of your Accounts with us on a Business Day, the funds will be available immediately.
(f) Availability of Check Deposits.
Subject to the Mobile Deposit terms at Section E.12, checks will be available the tenth Business Day after the day of your deposit, unless an exception applies.
Funds you deposit by check may be delayed for a longer period under the following circumstances: (i) You deposit a single or multiple checks totaling more than $5,000 on any one day; (ii) there is an emergency, such as failure of computer or communications equipment; or (iii) we delay deposit according to the terms of the Mobile Deposit terms at Section E.12. We will notify you if we delay your ability to withdraw funds for any of the above reasons and will tell you when the funds will be available. Funds will generally be available no later than the fourteenth Business Day after the day of your deposit.
(h) New Accounts.
Each Account you open is considered new during the first thirty (30) days after you open it. For New Accounts, funds from check deposits will be available on the tenth Business Day after the day of your deposit, unless an exception applies. Funds from ACH Transfers will generally be available for New Accounts on the tenth Business Day after the day the ACH Transfer is deemed to be received by us but may be available earlier, depending on the type of ACH Transfer.
(a) Delivery, Review.
Account statements will be made available to you electronically. Statements will be made available in accordance with applicable law and the time schedule established and modified by us from time to time. We will have the right to combine all Accounts in which the primary name and primary tax identification number are the same for the purposes of delivering or making available statements and for reporting purposes. The primary name is the first name on the Account title. You agree to carefully examine your statement, any Items, any check or Item images or transaction-related information that we make available to you electronically and any other Account records (collectively, “Account Records”). You agree to exercise reasonable promptness in examining Account Records to determine whether any payment was not authorized because of an alteration or because a purported signature by you or on your behalf was not authorized.
Subject to any different rights you have under the Electronic Funds Transfer Act with respect to the time you have to review statements and report unauthorized activity and errors, you agree that you will act with reasonable promptness in examining your Account Records and notifying us of any errors in writing, discrepancies, unauthorized payments (including payments with forged or missing signatures) or alterations that you discover. Whether you have acted with reasonable promptness will depend upon the circumstances. However, you will not be deemed to have acted with reasonable promptness if you notify us in writing more than 30 days from the date the statement reflecting the error, discrepancy, unauthorized payment or alteration is first mailed, delivered or made available to you. If you report an error, discrepancy, unauthorized payment or alteration after the 30-day period described above, you may not assert against us any claims you may have in connection with the error, discrepancy, unauthorized payment or alteration unless you can prove that we failed to exercise ordinary care in paying the Item in question and that our failure substantially contributed to the loss. In those scenarios the loss will be allocated between you and us based on the extent to which our respective failures to exercise ordinary care contributed to the loss.
17. ACH TRANSACTIONS
You may be a party to an Automated Clearing House (“ACH”) entry or an entry sent over a similar network, which may be credited or debited to your Account. You agree that any such transaction will be governed by National Automated Clearinghouse Association (“NACHA”) operating rules or other relevant network rules then in effect for any such transactions. You agree that we may rely on the promises of the originator of the transaction set forth in the NACHA operating rules or other relevant network rules in debiting or crediting your Account. We will notify you of the receipt of any such debit or credit only in your Account statement. You agree that payment of such entries will be processed on the basis of your Account number, even if the correct name is not included in the entry. Please see Section A.40 for more details about electronic fund transfers.
18. ACCOUNT OWNERSHIP AND BENEFICIARY DESIGNATIONS
You are responsible for verifying that the way your Account is titled is consistent with your instructions. We make no promise to you as to the appropriateness of your Account ownership or beneficiary designations.
19. TRANSFERRING THE ACCOUNT
This Account is for your use only and is not transferable except on our books and with our written consent. Even if we consent, we may require you to close your Account and open a new Account in the name of the new owner. We may refuse to honor or accept any pledge or assignment of your Account or an interest in your Account. Any transfer without our consent is void.
20. LIEN ON DEPOSITS; RIGHT TO SET-OFF
As we provide the legally required disclosures to you, we will have a continuing lien on amounts in your Account as security for all your liabilities to us, whether direct, contingent, past, present or future. At any time, we may automatically set-off your matured liabilities either in whole or in part against any of your Accounts, even though other persons may have an interest in those Accounts. Such liabilities include, to the extent permitted by law, those that may arise from other products or services you have obtained from us except credit cards. This set-off will discharge us from all liability in connection with such Accounts. In order to protect our right of set-off, if you file for bankruptcy, we may place a temporary administrative hold on your Account. While this hold is in effect, no checks, Items, debits, fees, charges, transfers or withdrawals, regardless of how initiated, will be permitted. To the extent permitted by law, we reserve the right to set-off against direct deposits of Social Security benefits and other federal, state and/or local government benefits.
21. WHEN WE MAY “FREEZE” OR PLACE A HOLD ON YOUR ACCOUNT
You agree that we may “freeze” or place a hold on your Account in the event that any of the following occurs: 1) You file for bankruptcy as described immediately above in Section A.20 captioned Lien on Deposits; Right to Set-Off; 2) We are served with legal process or a court or governmental order and it is not clear to us who has the right to the funds in your Account. See Section A.34 below, captioned Legal Action Taken Against Your Account, for more information; 3) A dispute arises concerning your Account, including, for example, a dispute over who is authorized to make withdrawals from the Account, who owns the Account or who can give us instructions regarding the Account; 4) Your account is, or the Bank reasonably believes is, used for any illegal or improper purpose or activity; and 5) The Bank has reason to believe that your account has been compromised or mismanaged in any way, such as by unauthorized or erroneous use of your password; 6) You have provided incorrect or misleading data to us when opening the Account or at any time; 7) you use or attempt to use the Account for business or commercial purposes; 8) you repeatedly overdraw the Account; or 9) you link or attempt to link your Account to an account that you do not own or to a business account.
You agree that we may maintain a freeze or hold on your Account until any claim, issue or dispute has been resolved fully in our sole satisfaction or we have conducted an investigation and are satisfied that your Account is not involved in any unauthorized activity. We will not be liable to you if our freeze or hold leaves insufficient funds to cover outstanding Items. You agree to reimburse us for our expenses, including attorneys’ fees and expenses, arising out of any dispute and our response to it. We will give you notice of the freeze or hold unless we are not permitted by law to do so.
22. FEES THAT WE MAY ASSESS
All deposit Accounts are subject to special charges we establish and disclose from time to time in accordance with applicable law. Such charges may be made against you by us to compensate us for handling such matters, including but not limited to your request for a wire transfer or delivery of a paper statement. You also agree to pay such additional charges as we may impose for services you request that are not required to be provided by us under this Agreement.
23. INACTIVE ACCOUNTS
Under applicable state abandoned property statutes, your Accounts will be considered inactive (dormant) and we may be required to send to the appropriate state the balances in your Account unless you have, within a specified period of time, contacted us or conducted activity related to your Account, including, for example: i) making a phone call to Customer Care; ii) logging in to Online Banking; or iii) sending us mail or e-mail. In general, a CD Account that has not reached initial maturity will not be considered inactive. Depending on applicable state law, if the CD Account renews automatically, it may still be considered inactive if you do not contact us or conduct activity related to it within a specified period of time after the initial maturity date. In general, the laws of the state of your last known address (as recorded in our records) will govern when your Account is considered dormant. Prior to remitting any balances in your account to the appropriate state, we will attempt to contact you, as required by applicable law, using the contact information you have provided to us.
24. CHANGES TO THIS AGREEMENT
(a) Changes we may make.
Subject to applicable law, we may change this Agreement at any time. A change includes adding new terms not related to existing terms, deleting terms and amending existing terms. We may add new types of accounts and services and eliminate existing accounts and services. We may also convert an existing account or service into a new account or service, increase or decrease our fees and charges or change how we calculate interest, fees and charges.
(b) Effect of change.
If we make a change, the version of this Agreement reflecting the change completely replaces all prior rules that may have governed your Account. You agree to be bound by any changed rules if you continue to keep your Account open beyond the effective date of the change. If you do not wish a change to apply, you should close your Account as described in this Agreement before it takes effect.
(c) Change notices.
Before we make a change, we will give you any notice required by applicable law for the change to become effective. We are not required to give you notice if we are permitted by law to make the change without notice. We may (but are not required to) give you notice of a change we make because of a security concern or an emergency or where the change is beneficial to you. To the extent permitted by law, when we are required to provide you with notice of a change, we will do so by (a) posting a notice of the change on our Website; (b) notifying you by electronic mail; (c) including a message on your periodic statement; (d) using some other appropriate method; or (e) following the notice procedures set forth in applicable law. A notice of a change that we provide or send to one Account owner is binding on all owners.
(d) Undeliverable notices.
If we send you notice of a change that is returned as undeliverable or if we do not send you notice of a change because prior communications were returned as undeliverable, you understand that we will make the notice available to you on our Website. You agree that this method of delivery is valid and that a change notice made available through our Website binds you even if you do not visit the Website to view the notice.
25. NOTIFICATION TO US
You agree to promptly notify us in writing of any change in your name, mailing address, telephone number (including any wireless telephone number) or e-mail address. Your personal representative must promptly notify us if you die or are declared to be incompetent. Any Account-related notification you send us will not be effective until we actually receive it and we have had a reasonable opportunity to act upon it. Until such time, we may rely upon the information appearing on our records in sending any Account statement, notice of change of this Agreement or of the establishment, increase or decrease in charges or any other Account-related information.
26. ACCOUNT CLOSURE
Either you or we may close your Account at any time by providing written notice of closure to the other. Upon Account closure, and subject to our collection of any deposits to your Account, we will mail you a check for any final balance or return the funds to your Linked Account. Even if your Account is closed, you will still be responsible for any overdrafts, outstanding Items or unpaid charges or Items credited to your Account which are returned unpaid, whether incurred before or after Account closure. No interest will accrue on your Account after closure. If your Account is closed before interest is credited, accrued interest will be paid through the last full day before the day the Account is closed, however an early withdrawal penalty will apply for CD Accounts that are closed prior to maturity.
27. RELEASING ACCOUNT INFORMATION
You agree that we may release information about you or your Account as required or permitted by law, including, for example, for tax purposes, to combat money laundering or in response to subpoenas, court orders or government investigations.
28. CONSENT TO RECORDING, MONITORING AND USE OF TELEPHONE AND ELECTRONIC COMMUNICATIONS
You agree that your telephone communications with us and our service providers may be monitored and/or recorded to assure the quality of our service. We have no obligation to retain or provide you with copies of these recordings. You authorize us and our service providers to make calls, leave recorded messages, send e-mails and/or send text messages to you at any telephone number or e-mail address you have provided to us and/or our service providers, including a wireless telephone number that could result in charges to you, for all purposes related to the servicing of your Account or to collect any amounts you owe. You understand that these calls, e-mails and/or text messages may be made to you using technologies including, but not limited to, automatic telephone dialing or e-mail systems or artificial or prerecorded voice messages. You also agree that these communications aren't unsolicited for purposes of any state or federal law and you understand that communications may result in additional mobile, text message, data charges or other charges.
29. NOTICE AND CURE
Prior to initiating a lawsuit or arbitration regarding a legal dispute or claim relating in any way to this Agreement or your Account (a “Claim”), the party asserting the Claim (the “Claimant”) must give the other party written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you will be sent in writing by mail to the address you have provided us (or any updated address you have subsequently provided to us). Any Claim Notice to us must be sent by mail to our Notice Address (see Section A.1 captioned BASIC TERMS), attention: Legal Department. (A written or electronic payment demand by us constitutes a valid claim notice.) Any Claim Notice you send must give your Account number, address and telephone number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests. (This Section, captioned NOTICE AND CURE, does not limit our right of set-off under this Agreement.)
30. JURY TRIAL WAIVER
TO THE EXTENT PERMITTED BY LAW, YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ACCOUNT. THIS JURY TRIAL WAIVER DOES NOT AFFECT THE JURY TRIAL WAIVER IN THE ARBITRATION PROVISION (IF YOU DID NOT OR DO NOT REJECT IT).
31. COMPLIANCE WITH LAW; SEVERABILITY
This Agreement is subject to applicable law and are deemed to be revised automatically to the extent (and only to the extent) required by applicable law. Except as provided in the Arbitration Provision, if any provision of this Agreement violates any law or is unenforceable for any reason (even in light of the prior sentence), such provision will not be a part of this Agreement. All other provisions of this Agreement will remain in effect, and no provision of this Agreement will be affected in any way by the invalidity or unenforceability of any other provision.
32. GOVERNING LAW
All Accounts are opened at the Utah main office of the Bank. All actions relating to your Account, including this Agreement, will be governed by the laws and regulations of the United States and the state of Utah (to the extent that Utah law is not preempted by federal law). Federal and Utah law shall be applied without giving effect to principles of conflicts of law.
33. OUR RIGHTS ARE CUMULATIVE
All of our rights under this Agreement, other Account documents and applicable law are cumulative and not exclusive, and we can exercise any right without losing any other rights. We can delay enforcing our rights without losing them. We can also waive our right in any instance without affecting our right to exercise those rights in the future.
34. LEGAL ACTION TAKEN AGAINST YOUR ACCOUNT
Except as otherwise provided herein for multiple-party Accounts, if an attachment, garnishment, levy, order, decree or other state or federal legal process (collectively, “legal process”) is brought against your Account, we may refuse to permit or we may limit withdrawals or transfers from your Account until the legal process is satisfied or dismissed. If we receive any document that appears or is purported to be legal process issued out of any court or governmental agency, you hereby authorize us to accept and comply with it, no matter how it was received by us. You hereby direct us not to contest on your behalf any such document or legal process and to comply with such process as we determine to be appropriate in the circumstances without liability of us to you, even if the legal process or document purports to affect the interest of only one owner of a joint Account and even if any funds we may be required to pay out leave insufficient funds to pay a check you have written or any other withdrawal or debit you have authorized or initiated. You agree we are not liable to you for, and you will indemnify and hold us harmless from, any and all damages, losses, costs and expenses we may incur as a result of any such document or legal process or our handling of such document or legal process. You agree that we may (i) charge any expenses and fees related to any such document or legal process to your Account or any other Account you may have with us without prior notice to you, (ii) bill you directly for such expenses and fees or (iii) to the extent permitted by law, deduct such expenses and fees from the amount levied. Any garnishment, attachment or other levy against your Account is subject to our right of set-off and any security interest we may have. You also authorize us to pay adverse claims as permitted under applicable law.
35. STANDARD OF CARE
We owe you a duty only of ordinary care. Our own internal policies do not impose a higher standard of care than would otherwise apply. We are not responsible for any loss or damage we cause you unless we failed to exercise ordinary care.
36. INDEMNIFICATION AND LIMITATIONS OF LIABILITY
NEITHER BANK NOR ANY PARTY RELATED TO BANK (INCLUDING ITS PREDECESSORS, PARENT, AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SHAREHOLDERS AND AGENTS) (COLLECTIVELY, THE “BANK PARTNERS”) WILL BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, STATUTE OR TORT OR WHETHER THE LIKELIHOOD OF SUCH CLAIM IS KNOWN TO EITHER YOU OR US. To the fullest extent permitted by law, we are not liable to you for errors that do not result in a financial loss to you or for damage caused by (a) actions we take that are consistent with this Agreement; (b) our delay or inability to perform our obligations under this Agreement due to circumstances beyond our control, including, for example, natural disasters, hurricanes, fires, power failures, telecommunications network failures, acts of God, wars and civil unrest; (c) your failure to comply with the terms of this Agreement; or (d) our exercise of ordinary care. Our liability for any claim you make will be limited to the amount of any Item, transaction, deposit or withdrawal we improperly handle. You agree to indemnify the Bank Parties for all claims arising out of our performance under this Agreement. You agree that this indemnification survives the termination of this Agreement.
37. BANKRUPTCY NOTICES
Any notice required to us under the Federal Bankruptcy Code must be in writing, must include your Account number and must be sent to our Notice Address (see Section A.1 captioned BASIC TERMS).
38. REPORTING INFORMATION TO FEDERAL AND STATE TAXING AUTHORITIES
When required by law, we report information to federal, state and local taxing authorities on interest and other forms of income you receive, including the cash value of prizes or awards you may win in connection with contests, promotions or sweepstakes we offer.
39. COPIES OF CHECKS AND OTHER ITEMS
We will retain copies of checks and other Items for as long as we are required to by law and our own document retention policies. After this time, we may destroy them. We have no obligation to retain original Items. To the extent permitted by law, we are not liable to you for any losses caused by a copy of an Item being unavailable or of poor quality. We may retain copies of Items and other records in any form, including, for example, paper, microfilm or electronic image. We may assess a fee for copy requests as set forth in our schedule of fees.
40. ELECTRONIC FUND TRANSFER DISCLOSURE AND SPECIAL TERMS AND CONDITIONS
The following disclosures and terms apply to Electronic Fund Transfers. For purposes of this Agreement, the term “Electronic Fund Transfer” refers to ACH Transfers and internal transfers to or from another Account at the Bank. These disclosures do not apply to wire transfers, or to deposits of checks using our Mobile Deposit service (further described in Section E of this Agreement).
(a) Account Statements and Electronic Fund Transfers.
Your periodic Account statement will show the date, amount, and description of each Electronic Fund Transfer. You may verify posting of an Electronic Fund Transfer on the next Business Day after the Electronic Fund Transfer is scheduled to be made by logging onto our Website or our mobile application.
(b) Stopping Electronic Fund Transfers.If you have scheduled a one-time Electronic Fund Transfer or a preauthorized or recurring Electronic Fund Transfer through us, you can stop any of these transfers if we receive your request in time. Here's how: Call us at 833-755-4354 (dial 711 first for operator relay assistance) or write us at P.O. Box 3900, Springfield, MO 65808-3900, in time for us to receive your request three Business Days or more before the payment is scheduled to be made. If you call us, we may also require you to put your request in writing and deliver it to us within 14 days after you call. If you order us to stop a payment three Business Days or more before the transfer is scheduled and we do not do so, we will be liable for the losses or damages.
We will disclose information to third parties about your account or the transfers you make: (i) where it is necessary for completing transfers; (ii) in order to verify the existence and condition of your account for a third party, such as a credit bureau or a merchant, (iii) in order to comply with government agency or court orders, or (iv) if you give us your written permission.
(d) Liability for Unauthorized Electronic Fund Transfers From Your Account.
Tell us AT ONCE if you believe that your Login Credentials have been lost or stolen or that an Electronic Fund Transfer has been made from your Account without your permission. Contacting us by telephone is the best way to minimize your possible losses. If you tell us within two Business Days after you learn that your Login Credentials have been lost or stolen or of the unauthorized transfer of funds, your liability will be no more than $50.
If you DO NOT tell us within two Business Days after you learn that your Login Credentials have been lost or stolen or that an unauthorized transfer of funds has occurred, and we can prove that we could have stopped the unauthorized transfer if you told us, you could lose as much as $500.
Also, if your statement shows Electronic Fund Transfers that you did not make, you need to notify us at once. If you do not notify us within 60 days after the Account statement was sent or made available to you, you may not get back the money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had notified us in time. If a good reason (such as a long trip or a hospital stay) kept you from notifying us, we may extend the time periods
(e) Our Liability for Failure to Complete Electronic Fund Transfers.
If we do not complete an Electronic Fund Transfer to or from your Account on time or in the correct amount according to this Agreement, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance: (i) If, through no fault of ours, you do not have enough money in your Account to make the transfer; (ii) If you have reached or exceeded applicable withdrawal limits during the statement period for your Account; (iii) If you did not provide us with accurate information to make the transfer; (iv) If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken; and (v) in any other applicable scenario stated in this Agreement.
(f) Error Resolution or Questions Regarding Electronic Fund Transfers.In case of errors or questions about your Electronic Funds Transfers, telephone us at 833-755-4534 (dial 711 first for operator relay assistance) or write us at Comenity Direct, P.O. Box 3900, Springfield, MO 65808-3900 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.
- 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 Customers, we may take up to 90 days to investigate your complaint or question. For New Customers, we may take up to 20 Business Days to credit your Account for the amount you think is in error. We will notify you of the results within three Business Days after we complete our investigation. If we determine that there was no error, we will send you a written explanation and may reverse any credit provided. You may ask for copies of the documents that we used in our investigation.
41. NOTICE REGARDING SUBSTITUTE CHECKS AND YOUR RIGHTS
(a) What Is a Substitute Check?
To make check processing faster, federal law permits banks 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.
(b) What Are Your 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.
(c) How Do You 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 by calling or writing using the number or address shown on your periodic statement. You must contact us within 40 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: (1) A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect); (2) An estimate of the amount of your loss; (3) An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and (4) A copy of the substitute check or the following information to help us identify the substitute check: the check number, the name of the person to whom you wrote the check, the amount of the check.
b. TRUTH IN SAVINGS DISCLOSURES FOR CERTIFICATES OF DEPOSIT ACCOUNTS
(b) Maximum Deposit Limitation. Account owners are subject to a maximum deposit balance across all Accounts (which includes, Online Savings and CD Accounts) of $10,000,000 per Account owner for individual Accounts and $5,000,000 per Account owner for joint Accounts, for a maximum deposit balance limit of $10,000,000 per Account owner. With respect to joint Accounts, for purposes of determining the maximum deposit balance permissible per Account owner, each joint Account owner will be attributed an equal portion of the balance of the joint Account. For purposes of calculating the maximum aggregate deposit balance permissible, for each Account owner and in each Account, deposit balances include: (i) all Accounts (which includes Online Savings and CD Accounts) held by the same Account owner at the Bank and (ii) principal plus interest earned and credited but not withdrawn.
(c) Return of Funds. If you deposit funds that cause your Account balance to exceed the applicable maximum aggregate limits, you authorize us to return the full excess deposit balances to you via check, or, subject to applicable authorization requirements, via ACH Transfer or wire transfer. If we receive a wire transfer or ACH Transfer from you for deposit and the deposit would cause you to exceed the applicable maximum aggregate limits, we may, in our sole discretion, reject and return the wire transfer or ACH Transfer, in accordance with applicable requirements.
The interest rate and APY is fixed for the term of your CD Account. The stated APY in your deposit Account confirmation notice assumes interest remains on deposit until maturity, subject to applicable maximum deposit limits. If you elect to withdraw interest during the term of the CD Account, the APY you receive will be lower than the stated APY. Interest is compounded daily and credited to the CD Account monthly. Interest is calculated using the daily balance method. This method applies a daily periodic rate to the principal and interest that has accrued in the CD Account each day. This means that the interest from your Account is calculated every day on a 365-day year/ 366-day for leap years. Interest begins to accrue on the Business Day that we receive your deposit, subject to the CD Account reaching the $1500 minimum deposit. We credit interest only in whole cents, rounding to the nearest cent. If the CD Account is closed before interest is credited, accrued interest will be paid through the last full day before the day the CD Account is closed, but an early withdrawal penalty will apply if closed prior to maturity.
Accrued interest will be credited to your CD Account monthly. You can withdraw the interest credited to your Account (without an early withdrawal penalty) at any time during the term of the CD Account. For example, you may initiate a withdrawal on a one-time basis or each month to transfer credited interest to a linked external Account or you may have your credited interest automatically withdrawn on a monthly basis by setting up a recurring transfer. Transfers of interest to your other Accounts at the Bank are subject to the maximum deposit limitations. If you elect to withdraw interest during the term of the CD Account, the APY you receive will be lower than the stated APY.
You are not permitted to withdraw a portion of your principal at any time prior to maturity. You may withdraw the entire principal amount prior to maturity, but you will be charged an early withdrawal penalty. The principal, however, may be withdrawn prior to maturity without a penalty if you die or if there is a judicial or administrative determination that you are legally incompetent.
You are not permitted to withdraw a portion of your principal at any time prior to maturity. If you withdraw the entire principal amount from your CD Account prior to maturity, you will be charged an early withdrawal penalty based on the term of your CD and the principal. The applicable early withdrawal penalties are as follows:
Early Withdrawal Penalty
Less than 12 months
90 days’ simple interest on the principal at the rate in effect for the CD
12 months to 3 years
180 days’ simple interest on the principal at the rate in effect for the CD
4 years and up
365 days’ simple interest on the principal at the rate in effect for the CD
For purpose of calculating the early withdrawal penalty, simple interest is calculated on a 365-day calendar year, even in a leap year. An early withdrawal penalty could result in the reduction of the principal.
We will waive the early withdrawal penalty in the event you are deceased or a court declares you legally incompetent.
There is a ten (10) day grace period (the “Grace Period”) beginning on the day after the maturity date (maturity date plus ten (10) days), in which you may withdraw principal without penalty or renew your CD Account with the same term. If you withdraw the funds in your CD Account during the Grace Period, interest will continue to accrue at the same interest rate and APY as the prior term and will be paid through the last full day before the day the funds in the CD Account are withdrawn.
If we do not hear from you during the Grace Period, and we do not send you a notice of non-renewal, your CD Account will automatically renew for another term. The renewal term will begin (retroactively) on the day after the maturity date of the previous CD Account term. The principal balance for the renewal term will be the total balance in the CD Account (principal plus the interest that was not previously withdrawn) on the date the CD Account is renewed. Each renewal will be on the same terms, except that the rate of interest will be the highest interest rate and APY we offer for the same CD term that is available during the Grace Period.
We reserve the right not to renew your CD Account if we send written notice of non-renewal to your address of record with the Bank at least thirty (30) days before the date your CD Account will mature. If we send you notice of non-renewal, you fail to contact us during the Grace Period, and we are unable to reach you to return the funds, you agree that we may transfer the balance from your CD Account to an Online Savings Account.
7. SPECIAL FEES
There are 3 fees that we will charge you in the special circumstances described below.
Type of Fee
When it Applies
Paper Statement Request
When you request that we mail you a copy of your Account statement
$5 per request
Paper Check Request
When you request a withdrawal from your Account by paper check
$15 per request
When you request a wire transfer from your Account
$25 per request
c. TRUTH IN SAVINGS DISCLOSURES FOR ONLINE SAVINGS ACCOUNTS
Pursuant to federal law, we reserve the right to require you to give us seven days advance written notice of any withdrawal or transfer of any funds. If at any time we decide to require the seven day notice, and that notice is not given by you, we may return the check, Item or debit unpaid without incurring any liability of any kind because of such nonpayment and return. By permitting you to make a withdrawal without requiring seven days’ notice, we are not waiving our right to require the notice.
This Agreement and federal law impose limits on the number of certain types of withdrawals and transfers you can make from your Online Savings Account during each monthly statement period. You are only permitted to make six (6) withdrawals or transfers per monthly statement period from your Online Savings Account. This limit does not apply to deposits or to checks that are made payable to you that you request by calling Customer Service. This limit does apply to the following types of withdrawals or transfers: (i) preauthorized or automatic withdrawals or transfers initiated from your Online Savings Account, whether through us or an external bank; (ii) one time withdrawals or transfers requested by calling Customer Service or requested through our Website or mobile application (ACH Transfers, internal transfers between Accounts at the Bank, and wire transfers). If you make more than six (6) withdrawals or transfers in a monthly statement period, we may in our discretion, deny and/or reject the transfer, and we may close your Account.
A minimum balance of $1.00 is required to earn interest. Interest is compounded daily and credited to your Account monthly. Interest is calculated using the daily balance method. This method applies a daily periodic rate to the principal and interest that has accrued in the Account each day. This means that the interest from your Account is calculated every day on a 365-day year/ 366-day for leap years. Interest begins to accrue on the Business Day that we receive your deposit. If the Account is closed before interest is credited, accrued interest will be paid through the last full day before the day the Account is closed. We may, at our discretion, at any time, change the interest rate and the Annual Percentage Yield (“APY”). The rate at which interest may be paid on the principal balance of the Online Savings Account, and the corresponding APY at which the Online Savings Account would earn interest each year if all interest paid on the Online Savings Account remains in the Account, can be found on our Website, which may be modified by us from time to time, in our sole discretion.
There is a minimum deposit of $100.00 required to open an Online Savings Account. However, a minimum balance of $1.00 is required to earn interest. If you fail to fund your Account within sixty (60) days of Account opening or fail to maintain a positive balance in your Account for sixty (60) days, we may close your Account.*There is no minimum opening balance for Accounts that are opened through MaxMyInterest.
Account owners are subject to a maximum deposit balance across all Accounts (which includes, Online Savings and CD Accounts) of $10,000,000 per Account owner for individual Accounts and $5,000,000 per Account owner for joint Accounts, for a maximum deposit balance limit of $10,000,000 per Account owner. With respect to joint Accounts, for purposes of determining the maximum deposit balance permissible per Account owner, each joint Account owner will be attributed an equal portion of the balance of the joint Account. For purposes of calculating the maximum aggregate deposit balance permissible, for each Account owner and in each Account, deposit balances include: (i) all Accounts (which includes Online Savings and CD Accounts) held by the same Account owner at the Bank and (ii) principal plus interest earned and credited but not withdrawn.
If you deposit funds that cause your Account balance to exceed the applicable maximum limit, you authorize us to return the full excess deposit balances to you via check, or, subject to applicable authorization requirements, via ACH Transfer or wire transfer. If we receive a wire transfer or ACH Transfer from you for deposit and the deposit would cause you to exceed the applicable maximum aggregate limits, we may, in our sole discretion, reject and return the wire transfer or ACH Transfer, in accordance with applicable requirements.
7. SPECIAL FEES
There are 3 fees that we will charge you in the special circumstances described below.
Type of Fee
When it Applies
Paper Statement Request
When you request that we mail you a copy of your Account statement
$5 per request
Paper Check Request
When you request a withdrawal from your Account by paper check
$15 per request
When you request a wire transfer from your Account
$25 per request
d. ONLINE BANKING SERVICES AGREEMENT
This Section governs the use of Online Banking, External Transfer, and other services offered from time to time which allow you to perform a number of banking inquiry, transfer and transaction functions through the use of a personal computer device, mobile device and the internet to access the services offered by the Bank (collectively, “Online Banking”, "Online Services" or the “Services”). This Section establishes the terms and conditions for access to the Online Services and products that we offer. When you use any of the Online Services described in this Section, you agree to these terms and conditions.
You agree to use Online Services only for consumer or personal transactions. A “consumer transaction” means the use of our Online Services to electronically transfer funds to or from an account which you own or over which you are authorized to exercise control that is established primarily for personal, family or household purposes.
1. USING THE ONLINE SERVICES
To use Online Services, you must have at least one Account with us, and be able to meet the hardware and software requirements contained in the E-Sign Agreement. Online Services can be used to access only the Accounts which you have designated for such access. You can add, change or delete any of your Accounts or user access by completing the enrollment process as required by the Bank from time to time. Access to your Accounts through the Services will be based upon the identification of users specified by you. While the Bank implements commercially reasonable methods to prevent unauthorized access to the Online Services, we cannot provide absolute assurance that unauthorized access will not occur. As such, you acknowledge and agree that we have no obligation to monitor transactions through the Online Services to determine that they are made on your behalf.
Persons with individual Accounts may access individual Accounts of which they are an owner, and may also access joint Accounts for which they are an owner. Each joint Account holder must enroll separately, and each enrolled joint Account holder is jointly and severally liable for all transactions performed by any enrolled joint Account holder.
2. LOGIN CREDENTIALS; YOUR RESPONSIBILITIES
In your transactions with us, you acknowledge and accept the obligation to use your user ID, password and any other authentication method as may be required by us (collectively, "Login Credentials”) to initiate a secure session with us. In creating your password, we recommend that you utilize both upper and lower case characters. Your password should not be associated with any commonly known personal identification, such as social security numbers, address, date of birth, names of children, and should be memorized rather than written down. We have no responsibility or liability for the determination or discovery of your password. If you discover that your Login Credentials have been stolen or compromised, you agree to notify Bank immediately and change your Login Credentials as applicable.
(a) Your Duty to Safeguard Login Credentials. You understand the importance of your role in preventing misuse of your Accounts through the Online Services and you agree to promptly examine your periodic electronic or paper statement for each of your Accounts as soon as you receive it. You agree to protect the confidentiality of your Account and Account number, and your personal identification information, such as your driver's license number and social security number. You understand that personal identification information by itself, or together with information related to your Account, may allow unauthorized access to your Account. Your Login Credentials are intended to provide security against unauthorized entry and access to your accounts. We have no responsibility for establishing the identity or authorization of any person who uses your Login Credentials.
(b) Our Authority to Act on Instructions. We are entitled to act upon instructions we receive with respect to the Online Services using your Login Credentials, and you are liable for all transactions made or authorized with the use of your Login Credentials. Any requests or instructions we receive from you through the Online Services using your Login Credentials shall constitute writings with your signature as provided under all applicable law, and shall have the same force and effect as a writing signed by you. This includes, but is not limited to, inquiries, deposit transactions, Items deposited, transfers, check images, changes to accounts or services or any other communication you provide us through the Online Services using your Login Credentials.
(c) Security. Notwithstanding our efforts to ensure that the Online Services are secure, you acknowledge that the internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the internet and can potentially be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the Online Services will not be monitored or read by others. You agree to notify the Bank in the event your use of the Online Services would necessitate a level of security that exceeds that offered by us. If you fail to notify the Bank, you acknowledge and agree that the general current security aspects of the Online Services are appropriate for your needs and provide you with a commercially reasonable degree of security against unauthorized use.
3. Information Displayed Through the ONLINE Services
Information displayed through the Online Services is generally current. However, your Account balance may include deposits still subject to verification or other Items memo posted to the Account and may not include outstanding debits or credits. Transfers initiated through the Online Services may not result in immediate availability because of the time required to process the request. The Bank cannot control when transactions initiated by you with a third party may be presented to the Bank.
4. External Transfers
You acknowledge that Bank may employ the services of a third-party provider to debit and credit entries to your eligible Account(s) when you instruct us to electronically transfer funds to or from your eligible Account(s) and other Account(s) held by you at another financial institution(s), credit union(s), or brokerage companies (the “Other Financial Institutions”) in the United States (“External Transfers”).
Use of External Transfers will also be affected by the other sections of this agreement, including the terms of your deposit Account and the related disclosure. Using External Transfers does not change the terms and conditions for your Account(s), as provided in the remaining sections of this agreement. You should review those sections for any applicable fees, limitations on the number of transfers you can make, and for other restrictions that might impact your use of External Transfers.
(a) Your Authority
When you elect to use External Transfers, you represent that you have full authorization from any other authorized signer on the eligible Bank or Other Financial Institution(s) account(s) to execute this authorization and that any other authorized signer on the Account(s) agrees and understands that the Bank, and any of our processing agents, are authorized to debit and credit entries to the Account(s) in accordance with your transfer instruction(s) under External Transfers.
(b) Eligible Account Types
The following represents the types of accounts that are eligible for External Transfers: (i) Online Savings Accounts with us; and (ii) Checking, savings, money market, investment and brokerage accounts held at any Other Financial Institution in the United States able to accept ACH transfers. CD Accounts with us are ineligible for External Transfers. You may have other accounts that are ineligible for External Transfers due to restrictions by the Bank or specific to your Other Financial Institution(s). Please contact us or your Other Financial Institution(s) as applicable if you have questions about whether your external accounts are eligible for this Service.
(c) Account Verification
The Bank may verify any Account you add to External Transfers, and you authorize the Bank to validate the account(s) at your Other Financial Institution(s) using a trial deposit method. This method requires that two micro deposits are made to, and withdrawn from, your external account and requests that you confirm the amounts. You must confirm the amount by typing in the values of the deposits on the Bank’s online banking system. If the entered values match the trial deposit amounts, the account will be approved.
(d) Your Relationship with Other Financial Institutions
You understand and agree that at all times your relationship with each non-Bank account(s) provider is independent of the Bank and your use of External Transfers. The Bank will not be responsible for any acts or omissions by the Other Financial Institution(s) or other provider(s) of any Account(s), including without limitation any modification, interruption or discontinuance of any Account(s) by such provider. You agree that the Bank shall not be liable for any costs, fees, losses or damages of any kind incurred as a result of: any inaccuracy, incompleteness or misinformation contained in information retrieved from the Other Financial Institution(s) or any third party account provider; and any charge imposed by the provider of any third party account.
(e) Cut-Off Time; Limits
The cut off time to initiate an External Transfer is 5:00 P.M. Central Time. Your account will be debited and credited on the Business Day after you initiate the transfer. You recognize that it may take an additional business day for your External Transfer to be reflected in your account balance of the destination account depending upon the Other Financial Institution’s processing rules and cut off times.
We reserve the right to limit the types and number of Accounts eligible for External Transfers, including the right to refuse to make any transactions you request. In addition to the limitations elsewhere described in this Agreement, there are frequency limits that apply when transferring funds from your Online Savings Account as described in your Account disclosure. Each transfer or payment you request through External Transfers from these types of Accounts is counted as one of the six limited transfers you are permitted each monthly cycle.
(f) Cancellations, Returns and Rejections
You may cancel your External Transfer request any time prior to the cut off time on the day you submit the request by logging into the Bank’s Online Banking system and cancelling the request. Future dated or recurring transfers may be cancelled prior to the cut off time on the Business Day before the settlement or next settlement date of the transfer by logging into the Bank’s Online Banking system and cancelling the request.
An External Transfer will be returned if it cannot be successfully processed for any reason, including, but not limited to: an incorrect entered account or ABA number; insufficient available funds in the account to be debited and/or credited; exceeding the dollar limit for an individual transaction, daily transfer limit, monthly transfer limit, or pending transfers that have not yet been posted. Any transfers we have already processed before the cancellation date will be completed.
(g) Your Responsibility; Suspension of Access
It is your responsibility to monitor the status of your External Transfer requests and for ensuring your transactions have been accurately entered and processed as requested. Any Account owner with access to the Bank’s Online Banking system may sign up for External Transfers and request to link any Account(s). As applicable, the terms of this Agreement will extend to all joint Account owners.
In the event that the Bank experiences a problem with your use of External Transfers at any time, including without limitation, the inability to debit any of your Account(s) or to collect with respect to any of your transfers as described above, and without limiting any other right or remedy that we may have under this Agreement or otherwise, we reserve the right to suspend your right to use the External Transfers, immediately and without prior notice to you. You understand and agree that such action is reasonable for the Bank to take. In the event of such suspension, you may request reinstatement of your Service by contacting the Bank. The Bank reserves the right in our sole discretion to grant or deny reinstatement of your use of the External Transfers. In the event the Bank agrees to reinstate you, the Bank reserves the right to, and ordinarily will, reinstate External Transfers in accordance with appropriate restrictions.
(h) Cancelling Your Enrollment
Your authorization to enable External Transfers for your account(s) remains in full force and effect until the Bank has received notice from you of its termination by calling us at 1-833-755-4354 (dial 711 first for operator relay assistance). Any transfers we have already processed before the cancellation date will be completed. The Bank recommends that you cancel any scheduled transfers prior to notifying the Bank that you are cancelling the service. You are responsible for any transfers scheduled by you prior to termination that you have not canceled according to these terms. Termination will not affect your liability or obligations under this Agreement or any other related agreements for transfers the Bank processed on your behalf.
Alerts allow you to receive notifications when your Account balance is over a certain limit or when credits post to your account (“Alert”). You can set the Alert within Online Banking. Alerts may not be sent on a “real time” basis, but instead may be sent at the next scheduled delivery time after the specified transaction or balance event occurs. Transactions that have not fully processed or posted may not be reflected in the Account information we send to you through Alerts. We reserve the right to change the frequency or timing of Alerts at any time. Alerts are not intended to replace your Account statements or other communications that we may provide. Alerts are provided as a convenience for you and we have no obligation to initiate any particular Alert, even if you have expressly requested one. We have no responsibility to you for not sending an Alert you have requested or for sending an Alert in an untimely manner. We are not responsible for any failures on the part of your telecommunications or internet provider to properly enable your receipt of Alerts. Alerts may be delayed due to systems or service outages, technology failures or system capacity limitations.
6. Services Termination, Cancellation, or Suspension.
You agree to use the Online Services and products provided under this Agreement only for bona fide and lawful purposes. The Bank may suspend or terminate your participation in any or all of the Online Services for any reason and at any time. The Bank will try to notify you in advance, but we are not obligated to do so. The Bank shall have no obligation to honor any instruction, in whole or in part, at any time, with or without cause and with or without notice, and may immediately do so including, without limitation, the following:
- Your account is, or the Bank reasonably believes is, used for any illegal or improper purpose or activity;
- A transaction exceeds the available funds in your account;
- The Bank has reason to believe that the instructions may not be authorized by you;
- A transaction involves funds subject to a hold, dispute or legal process;
- A transaction would violate any law, rule or regulation applicable to the Bank, you or any other party that processes or receives the payment;
- A transaction is not in accordance with any other requirement stated in this Agreement or any other applicable agreement with the Bank, or any of the Bank’s policies, procedures or processes;
- The Bank has reasonable cause not to honor a transaction for your protection and the Bank’s;
- The Bank has reason to believe that your account has been compromised or mismanaged in any way, such as by unauthorized or erroneous use of your password;
- You repeatedly overdraw your Account(s);
- Your Account is closed, access to your Account is restricted for any reason, or if you do not use this Service for a period of time after being notified by the Bank; or
- Following initial enrollment, if you do not use External Transfers, the Bank may automatically suspend or terminate the service without further notice to you.
You are responsible for any and all telephone access fees and/or Internet service fees that may be assessed by your telephone and/or Internet service provider.
8. Contacting Bank through E-Mail
You agree and acknowledge that e-mail is not a secure method of communication. You should not send an e-mail message if you need to communicate with us immediately. Do not use e-mail to send banking instructions or to request Online Services. Do not send Account information or transaction information by e-mail. If you e-mail us or ask us to reply to you by e-mail you agree to hold us harmless and indemnify us from any consequences, including financial loss, costs and attorney’s fees incurred, resulting from any unauthorized use or disclosure of your Account or personal information resulting from e-mail. Also, if you send us an e-mail, it will be deemed to have been received on the following Business Day. The Bank will have reasonable time to act on your e-mail. We are not required to act on any e-mail received and we are not responsible for misdirected or lost e-mails.
To protect the privacy and security of your personal information the entire Comenity Direct Website is protected using a COMODO Digital SSL Certificate. We've added an additional layer of security that shows if you are connected to a safe server. If your browser's address bar is GREEN, your connection is safe.
When you enroll in Online Banking, you are protected by a powerful, multilayered security system. The access process begins with you typing in your correct User ID and Password. Then we check the device you are using (computer, smartphone or tablet). If we don't recognize the device, you will be asked a Security Challenge to ensure your identity. We also check geographic indicators, so if you try logging in from a new location, you may be asked an additional question.
E. MOBILE BANKING SERVICES AGREEMENT
This Section governs the Mobile Banking service provided by us and your use of that service.
The term "Mobile Banking" means a suite of services that we make available, enabling you to conduct banking transactions with us by using your Mobile Device. "Mobile Device" means a cellular telephone or similar wireless communications device (1) that is installed with our software ("Mobile Banking Software") that you have downloaded in order to conduct Mobile Banking transactions, or (2) that is capable of conducting Mobile Banking transactions by using other protocols we may choose to permit. We reserve the right to change the Mobile Banking Software and other protocols that we allow for Mobile Banking at any time without prior notice. Mobile Banking is available only to individuals who are already enrolled in our Online Banking service.
1. ACCEPTING THESE TERMS
Before using Mobile Banking, you must both (a) consent to receive notices and disclosures electronically, and (b) read and accept this Agreement. You must evidence that consent and acceptance by selecting the button declaring your acceptance as part of your enrollment in Mobile Banking. In addition, you agree you are deemed to automatically renew that consent and acceptance each time you log in as a user of Comenity Direct Mobile Banking and use Mobile Banking to conduct any transaction. The current version of this Agreement can always be viewed online through your Online Banking service.
2. CONSENT TO RECEIVE DISCLOSURES AND NOTICES ELECTRONICALLY
By accepting this Agreement, you consent to receiving notices and disclosures concerning Mobile Banking, Online Banking, and your Accounts electronically, including by mobile phone (e.g. SMS or other text message) or e-mail (each of the foregoing being an "electronic address"). You must enter your electronic address for such disclosures and notices when first enrolling in Mobile Banking. You are solely responsible for immediately updating your electronic address if it changes. You must update your electronic address by logging into your Online Banking service, accessing the electronic page for managing your email address or accessing the Mobile Banking page to update your Mobile Device phone number, and entering your new electronic address. If you need assistance updating your electronic address, you may call the Customer Care Center at 833-755-4354. All disclosures and notices by us shall be deemed given and received by you immediately upon being sent to the electronic address you have most recently updated. Many disclosures and notices may also or instead appear in one or more of your Account statements. Unless specifically required by law, we are not obligated to provide any disclosure or notice to you by regular mail or by any means other than electronic transmission. You may, without charge, withdraw your consent to receiving notices and communications electronically by calling our Customer Care Center at 833-755-4354, but in that event we can terminate your Mobile Banking service.
Receiving electronic disclosures and notices on your Mobile Devices requires that your Mobile Device be an Internet-enabled Mobile Device that supports 256-bit encryption. In order to keep notices and disclosures sent to you electronically, you must have the ability to save them to your Mobile Device or computer, or to print them. You may also request a paper copy of an electronic notice or disclosure at no additional charge by calling our Customer Care Center at 833-755-4354, however we will charge a fee if you request a paper statement for your account.
3. MOBILE BANKING FUNCTIONS
To access Mobile Banking service and functions, your Mobile Device must be Internet enabled and connected to the Internet through your mobile communications service provider. You must be enrolled in both our Online Banking service and our Mobile Banking service. You must enroll the particular Mobile Device(s) that you wish to use with Mobile Banking. You must also un-register any Mobile Device(s) that you may no longer wish to be capable of using with Mobile Banking.
When you access Mobile Banking with your Mobile Device, you will see a menu of available Mobile Banking functions (e.g., view balances; view or search for transactions; locate branches; execute specific types of internal or external funds transfers; etc.). From time to time we will add, and may modify or delete particular Mobile Banking functions or geographic areas served by Mobile Banking. We may make such changes in functions or geographic service with or without prior notice. We reserve the right to refuse to make any transaction that you may request through Mobile Banking.
Not all functions that are described in the Online Banking terms or available at your Online Banking service website are available with Mobile Banking. All terms and conditions in this Agreement or on your Online Banking service's website that limit or govern your use of Online Banking functions will also limit and govern your use of those functions through Mobile Banking.
4. MOBILE BANKING SERVICE AVAILABILITY
We will use reasonable efforts to make Mobile Banking service available for your use on a continuous basis. We do not guarantee functionality of Mobile Banking services (or any Mobile Banking Software) on all Mobile Devices, on all communications networks, in all geographic regions, or at all times. Mobile Banking service may be temporarily unavailable for regular or emergency system maintenance. We will endeavor to have our scheduled maintenance occur during non-peak hours, but we may conduct maintenance at any time. In addition, your accessibility to the Mobile Banking service may be interrupted because of conditions beyond our control, including outages in Internet availability. We will use commercially reasonable efforts to re-establish Mobile Banking service in those instances, but we do not promise the Mobile Banking service will always be available for your use. We may elect to discontinue Mobile Banking (or any of the services that we provide, from time to time, through Mobile Banking) at any time. If we choose to discontinue Mobile Banking, we will provide you with reasonable notice. In the case of a disaster, your Mobile Banking may be suspended in order to allow emergency and responding personnel to use the cellular networks. In no event, regardless of cause, shall we be liable to you for unavailability of Mobile Banking services, or your inability to access Mobile Banking or to execute Mobile Banking functions.
Currently, we charge no fees to enroll in or use Mobile Banking. However, we may assess fees set forth in the Banking Agreement and disclosures for particular services that you may request such as wire transfers.
We reserve the right to institute or change fees for Mobile Banking after sending you prior notice.
6. MOBILE DEVICE AND MOBILE COMMUNICATIONS
You are responsible for providing your own Mobile Device that supports 256-bit encryption. Mobile Banking users must download, install and use certain software systems and programs developed by us, our licensors or other third-parties. We are not responsible for any damage to your Mobile Device resulting from those activities, and you will be engaging in those activities at your own risk. To download Mobile Banking Software, please follow the instructions found in the Mobile Banking section of your Online Banking site. Depending on its make and model, your Mobile Device may need to be capable of receiving an SMS text message to initiate the download.
You are responsible for obtaining your own mobile communications service provider. Your mobile communications service provider may charge you for Internet-related use and for text (SMS) messages, so please see your mobile carrier for further details about its charges. You are responsible for all fees and charges that you may incur to any mobile communications service provider or any other third parties while using Mobile Banking.
We are not a party to, and we have no duty, liability or responsibility with respect to or in connection with (i) your mobile communications service provider agreement, or (ii) any Mobile Device, hardware, software or other any product or service you may purchase from others relating to your use of Mobile Banking. This Agreement does not amend or supersede any agreements that you have with third parties (such as your Mobile Device supplier and your mobile communications service provider), and you remain subject to all terms, fees, costs, other charges, limitations and restrictions in those agreements with third parties. Your Mobile Device supplier and your mobile communications service provider are responsible for their products and services. You agree that any problems you may have concerning those companies' products, services or agreements shall be resolved by you directly with them, and without involving us.
Your Mobile Device may become subject to unauthorized tracking, "hacking" or other manipulation by spyware, viruses or other malicious code ("malware"). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk.
If you request that we send Alerts (described fully in Section D.5) via Mobile App, you must safeguard your Mobile Device and not hold us responsible if a third party views or hears any Alert we initiate. You will not receive our Alerts on your Mobile Device if it is turned off, the Mobile App is deleted from your Mobile Device, or your Mobile Device is otherwise incapable of receiving Alerts. We are not responsible for any failures on the part of your telecommunications or internet provider to properly enable your receipt of Alerts.
8. EXPORT CONTROLS
Software programs, materials, tools, and technical data may be subject to U.S. export controls or the trade laws of other countries. You agree to comply with all export control regulations. You also acknowledge that you, not Comenity Capital Bank, have the responsibility to obtain such licenses to export, re-export or import as may be required. You agree not to export or re-export to entities on the most current U.S. export exclusion lists or to any country subject to U.S. embargo or terrorist controls as specified in the U.S. export laws.
9. MOBILE BANKING LICENSE RIGHTS GENERALLY
In connection with your use of Mobile Banking Software, we and our licensors (or other third-parties who have directly or indirectly granted rights in those software systems and programs with respect to Mobile Banking) will require your agreement to certain license rights arrangements and/or end-user agreements ("Licenses"). By enrolling in portions of Mobile Banking relating to those software systems and programs, and by downloading and installing Mobile Banking Software, you will be evidencing your acceptance of the terms and conditions of those Licenses. We may also condition your use of Mobile Banking Software upon you affirming such Licenses by the use of "I Accept" dialogue box acknowledgements, or by other affirmative or use-based acknowledgement and agreement systems.
We and our service providers (including without limitation third-party providers of Mobile Banking Software) reserve all rights not granted to you in this Agreement and under the terms of such Licenses. If you obtain a different Mobile Device, you will be required to download and install Mobile Banking Software, to that different Mobile Device, under the same terms set forth in this Agreement. You agree to delete all such software from your Mobile Device promptly if the Licenses or this Agreement terminate for any reason. We reserve the right to change, add to, or terminate services with our third-party Mobile Banking Software providers, to substitute different Mobile Banking Software providers, and to enter into or arrange for the provision Mobile Banking Software by other licensors and third-parties.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR THE AGREEMENTS GOVERNING THE TERMS OF ANY LICENSE RIGHT RELATING TO THE USE OR OPERATION OF MOBILE BANKING OR MOBILE BANKING SOFTWARE, MOBILE BANKING SERVICES AND MOBILE BANKING SOFTWARE ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, OR MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY OTHER WARRANTY AS TO PERFORMANCE, ACCURACY OR COMPLETENESS. YOUR USE OF THE MOBILE BANKING SOFTWARE AND MOBILE BANKING SERVICES, AND ANY MATERIAL OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED VIA MOBILE BANKING, IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE.
10. ADDITIONAL TERMS AND CONDITIONS IN THIS AGREEMENTS
Your use of Mobile Banking is subject to all other Sections of this Agreement as applicable. Without limitation, your use of Mobile Banking is subject to provisions of this Agreement regarding disclaimers of warranties, limitations on our liability, indemnity, amendments, dispute resolution terms and procedures, and definitions. This Agreement is also subject to consumer protection provisions in the Deposit Account Terms at Section A, including limitations on consumer customers' liabilities for unauthorized transfers, and contacting us concerning questions or errors. In the event of any specific conflicts between this Section and Section 1, this Section will govern.
In addition, each deposit Account that you access using Mobile Banking, and each transaction made in such Accounts using Mobile Banking, remains subject to the general terms, conditions, and agreements governing those Accounts (e.g., as applicable, the product disclosure for the Account).
11. AMENDING THIS AGREEMENT AND FEES
We may amend this Agreement at any time by sending notice as described in Section A.24; provided, however, that this Section governs our right to provide you with that notice electronically. By continuing to use Mobile Banking after the effective date stated in the notice, you are deemed to accept that change.
12. LOST OR STOLEN MOBILE DEVICE OR PASSWORD; UNAUTHORIZED TRANSACTIONS
If you believe your Mobile Device, Login Credentials (user name (Login ID), password), or other approved access device has been lost or stolen, or that someone has transferred or may transfer funds from your Account without your authorization, contact us AT ONCE at 833-755-4354. For additional information regarding your and our rights and responsibilities regarding unauthorized transactions, please review your Banking Agreement and the applicable agreement(s) governing the affected deposit Account.
In case of errors in or questions about your deposit Accounts, contact our Customer Care Center at 833-755-4354. For additional information regarding your and our rights and responsibilities regarding errors in or questions about your accounts and how such errors and questions are processed, please review your Banking Agreement and the applicable agreement(s) governing the affected deposit Account.
For questions or concerns about the Mobile Banking service itself, you may call us at 833-755-4354 or by mail at:
P.O. Box 3900
Springfield, MO 65808-3900
13. MOBILE DEPOSIT TERMS
- (a) General Description of the Mobile Deposit Service. The Mobile Deposit Service allows you to deposit checks to your Deposit Account. You may use the Mobile Deposit Service in connection with your Deposit Accounts. Mobile Deposits may be made to Deposit Accounts by using a supported camera-enabled Mobile Device with our downloadable Mobile Banking Software to capture electronic images of paper checks (each, a “Check”) and to transmit such images and other information (“Check Images”) required hereby to us or our designated processor. The terms "us" and “our” in this Section may be used interchangeably when used in relation to any services performed by a processor on our behalf including, but not limited to, the receipt and processing of images and check data and any notices related thereto. The Mobile Device must capture a Check Image to be deposited in accordance with the procedures outlined in this Section and any instructions we provide you within the Mobile Banking Software (“Procedures”). After capture of the Check Images and all other required data and information from the paper Check, you will transmit for deposit the Check Images and all other required data and information from or pertaining to the Check to us using the Software installed on your Mobile Device (each transaction, a “Mobile Deposit”). Subject to compliance with the terms, provisions and conditions of this Section, we will process the Mobile Deposit on the Business Day we receive the Mobile Deposit and enter the Check Images of the Check into the collection process, in accordance with the provisions of our then current Account documentation pertaining to the Deposit Account into which the Mobile Deposit is to be made. You acknowledge and agree that we may discontinue, and/or change the terms of the Mobile Deposit Service or any related content, features, products or services associated therewith, at any time without notice or liability to you or any third party except as required by law.
- (b) Eligibility. Deposit Accounts that have been opened for longer than 30 days, are in good standing and are enrolled in Mobile Banking will be eligible for the Mobile Deposit Service. Deposit Accounts with excessive returned checks or ACH transactions, negative balances, other negative Account history or any other criteria we may establish from time to time will not be granted access to use the Mobile Deposit Service. Deposit Accounts granted access to the Mobile Deposit Service may be denied future transactions if the Deposit Accounts are no longer in good standing.
- (c) Checks Deposited. When using the Mobile Deposit Service, you agree you will only scan and deposit Checks as that term is defined in Regulation CC. You cannot deposit money orders using the Mobile Deposit Service. You agree you will not use the Mobile Deposit Service to deposit any Checks that:
- are payable to any person or entity other than you,
- are prohibited by our then-current Procedures pertaining to the Mobile Deposit Service or are in violation of any law, rule or regulation,
- evidence alteration or that you know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the Checks are drawn,
- have been previously endorsed by a bank (or other institution) and are either “substitute checks” (as defined in Regulation CC) or “image replacement documents” that purport to be substitute checks, without our prior written consent,
- are drawn on financial institutions that are located outside of the United States or territories of the United States,
- are not payable in US Dollars, and
- are not acceptable to us for deposit into a deposit Account as provided in this Agreement.
- (d) Security Interest. You grant us a security interest in all your deposit Accounts or other deposits (whether general or special) you have opened with us, and in all funds in such deposit Accounts or other deposits, to secure your obligations to us under this Section. This security interest will survive termination of this Section.
- (e) Scanning of Checks and Transmission of Check Images. You shall properly use all software required by this Section or otherwise, required for or related to, the use of the Mobile Deposit Service. Before capturing a picture of the Check Images, you shall endorse the Check with your name and the legend “For Mobile Deposit Only.” Endorsements must be made on the back of the draft or check within 1½ inches from the top edge, although we may accept endorsements outside this space. A check payable to two payees must be endorsed by both payees. Any loss we incur from a delay or processing error resulting from an irregular endorsement or other markings by you will be your responsibility. Once you have endorsed the Check, you shall then capture the Check Images of the Checks to be deposited via Mobile Deposit and transmit the Check Images and any other required data and information from or pertaining to such Checks to us or the processor in accordance with the Procedures. We reserve the right to amend the Procedures, with or without prior notice to you. To ensure accuracy, you shall key the amount of each Check and any other information required using the Mobile Banking Software prior to transmitting the Mobile Deposit in accordance with the Procedures.
- (f) Limits and Cut-Off Times. We reserve the right to impose limits on the amount(s) and/or number of Mobile Deposits transmitted using the Mobile Deposit Service and to modify such limits from time to time (collectively defined as the “Limits”). You may send multiple Mobile Deposits to us or our processor throughout the day, not to exceed the Limits. We may, at our option, refuse to accept a Mobile Deposit that exceeds the Limits, or accept and process the Mobile Deposit. To be eligible for processing on the day transmitted, Mobile Deposits must be received by or before 5:00 p.m. (Central) on a Business Day (the “Cut-Off Time”). For purposes of determining when a Mobile Deposit has been delivered and received, our records shall be determinative. A Mobile Deposit that is transmitted after the Cut-Off Time shall be deemed to have been received at the opening of our next Business Day. We reserve the right to change Limits and the Cut-Off Time. All such changes shall be effective immediately and may be implemented prior to your receipt of notice thereof except as otherwise required by law. Please contact us at any time to verify the Limits and the Cut-Off Time.
- (g) Maintenance and Destruction of Original Check. You shall securely store all original Checks for a period of twenty (20) days after receipt of notice from us that the Mobile Deposit containing the Check Images has been accepted (such period the “Retention Period”). During the Retention Period, you shall take appropriate security measures to ensure that: (a) only you shall have access to original Checks, (b) the information contained on such Checks shall not be disclosed, (c) such Checks will not be duplicated or scanned more than one time and (d) such Checks will not be deposited or negotiated in any form. You will promptly (but in all events within five Business Days) provide any retained Check (or, if the Check is no longer in existence, a replacement Check or a sufficient copy of the front and back of the Check) to us as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check. If not provided in a timely manner, such amount will be reversed from your Deposit Account. Promptly after such period expires, you must destroy the original check by first marking it “VOID” and then destroying it by cross-cut shredding or another commercially acceptable means of destruction. After destruction of an original check, the image will be the sole evidence of the original check. You agree to never re-present the original Check, and understands it is responsible if anyone is asked to make a payment based on an original Check that has already been paid.
- (h) Image and MICR Quality. Check Images of each Check shall be of such quality that the following information can clearly be read and understood by sight review of such Check Images: (1) the amount of the Check; (2) the payee of the Check;(3) the signature of the drawer of the Check; (4) the date of the Check; (5) the Check number; (6) the information identifying the drawer and the paying bank (or other institution) that is preprinted on the Check, including the magnetic ink character recognition (“MICR”) line; and (7) all other information placed on the Check prior to the time the Check Images of the Check are captured, such as any required identification written on the front of the Check and any endorsements applied to the back of the Check. You shall ensure the Check Images transmitted to us include the full-field MICR encoding on each Check. You shall be responsible for the inspection of all Check Images to ensure the legibility of the Check Image including without limitation the dollar amount and signature of the person who signed the Check (the “drawer”), and for ensuring that any and all information on a paper Check is accurately captured and legible in the resulting Check Image and otherwise complies with any Check Image quality standards and guidelines that may be established by American National Standards Institute, ECCHO Rules, the Federal Reserve, other applicable regulatory agency or clearinghouse, or that we may provide from time to time. You acknowledge that current image technology may not capture all security features (e.g. watermarks) contained in the original paper checks, and agrees to assume any and all losses resulting from claims based on security features that do not survive the image process.
- (i) Receipt of Mobile Deposit. After we receive a Mobile Deposit, we will review the Check Images and other information contained therein. For each Mobile Deposit we determine is eligible for processing as described in this Section, we will: (i) create a substitute Check that we will present directly or indirectly to (a) the institution on which the original Check to which the Check Images relate is drawn, or (b) the institution at or through which the Check is payable (each, the “Paying Institution”); (ii) include the Check Images in an electronic file for presentment directly or indirectly to the Paying Institution; or (iii) present or post any Check Images for which we are the Paying Institution. You agree you shall be solely liable, and we shall not have any liability whatsoever, for any Mobile Deposit or Check Images or other information contained therein that are not received by us in accordance with the terms of this Section or for Mobile Deposits or Check Images or other information contained therein that is intercepted or altered by an unauthorized third party. We have no obligation to accept a Mobile Deposit, and may reject any Mobile Deposit or Check Images or other information contained therein submitted by you. We shall have no liability to you for rejecting a Mobile Deposit or Check Image or other information contained therein or for the failure to notify you of such rejection. Upon receipt of a Mobile Deposit from you, we may examine such Mobile Deposit and the Check Images and other information contained therein to ensure you have complied with this Section and followed the Procedures. If we determine you have not complied with this Section or followed the Procedures, or if errors exist in the Check Images or other information contained in the Mobile Deposit, we may, in our sole discretion, either reject the Mobile Deposit or elect to correct the error and accept and process the corrected Mobile Deposit (a “Corrected Mobile Deposit”). As a form of correction, we may credit your Deposit Account for the full amount of the Corrected Mobile Deposit and make any necessary adjustments to the Deposit Account to correct the error. We may, at our option, also perform a risk management analysis of one or more Mobile Deposits you have submitted to detect potentially fraudulent Checks, and, in our sole discretion, may reject any such Mobile Deposit or the Check Images or other information contained therein. If after examination of a Mobile Deposit and the Check Images and other information contained therein, we determine you have complied with this Section and processed and transmitted the Mobile Deposit in accordance herewith and with the Procedures, we shall accept the Mobile Deposit for deposit to your Deposit Account. Notwithstanding the fact that we have accepted a Mobile Deposit for processing, any credit made to a Deposit Account shall be provisional, and you shall remain liable for any errors, inaccuracies, breach of warranties and any other loss sustained by us, or claim made against us.
- (j) Availability of Funds. Availability of Funds is governed by the Deposit Account Terms. Mobile Deposits made using our Mobile Deposit service do not fall under the standard provisions of Regulation CC – Expedited Funds Availability Act. As such, longer hold periods may apply.
- (k) Representations and Warranties. You represent and warrant: (1) you shall only deposit Checks that are authorized by this Section; (2) each Check Image 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 and no party will submit the original check for payment; (3) the amount, payee(s), signature(s), and endorsement(s) on the Check Image and on the original Check are legible, genuine, and accurate; (4) you will not deposit or otherwise endorse to a third party the original Check and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original Check or a paper or electronic representation of the original Check such that the person will be asked to make payment based on an item that has already been paid; (5) there are no other duplicate Check Images of the original Check; (6) the original Check was authorized by the drawer in the amount stated on the original Check and to the payee(s) stated on the original Check; (7) you are authorized to enforce and obtain payment of the original Check; (8) you will use Mobile Deposit for lawful purposes and in compliance with all applicable laws, rules and regulations and (9) you further warrant you will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations.
- (n) Mobile Deposit Indemnification Obligations. You agree to indemnify and hold harmless us against any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and expenses arising from your use of the Mobile Deposit Services and/or breach of this Section.
F. PROVIDER END USER TERMS (FOR ONLINE AND MOBILE BANKING SERVICES)
The primary licensor for the Online and/or Mobile banking service you are using (the “Service”) is Jack Henry & Associates, Inc. (the "Provider"). By enrolling in our Service, you hereby agree as follows:
The Provider is not the provider of any of the financial services available to you through the Service, and the Provider is not responsible for any of the materials, information, products or services made available to you through the Service.
(iii)Source of Information.
The Service, at your direction, will retrieve your information maintained online by financial institutions and billers with which you have customer relationships, maintain accounts or engage in financial transactions and other log-in related information ("Account Information"). Provider does not review, verify or analyze the Account Information for accuracy or any other purpose, but simply gathers, organizes and reports available Account Information to you. Technical difficulties may result in a failure to obtain data, a loss of data, a loss of personalized settings or other service interruptions. Account Information is timely only to the extent that it is promptly provided by the third-party sites. Account Information may be more complete or up to date when obtained directly from the third-party sites.
(iv)Your Responsibility for Information.
You are responsible for providing Provider with accurate and updated (as necessary) account numbers, user names, passwords and other log-in related information ("Registration Information") so that the Service is able to access Account Information. If you become aware of any unauthorized use of your Registration Information, you should notify your financial institution immediately.
(v)Rights You Grant to Provider.
By submitting data, passwords, user names, PINs, log-in information, materials and other Registration Information to Provider through the Service, you are voluntarily supplying that content to Provider for the purpose of providing the Service to you. By submitting such information to Provider, you represent that you are entitled to submit it to Provider for use for this purpose, without any obligation by Provider to pay any fees. By using the Service, you expressly authorize Provider to access your Account Information maintained by identified third parties, on your behalf as your agent. When you use the "Add Accounts" feature of the Service, you will be directly connected to the website for the third party you have identified. Provider will submit information including user names and passwords that you provide to log you into the site. You hereby authorize and permit Provider to use and store the information submitted by you (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third-party sites for which you submit your information. You acknowledge and agree that when Provider is accessing and retrieving Account Information from the third-party sites, Provider is acting on your behalf and not on behalf of the third party. You acknowledge that certain risks are inherent in the transmission of information over the internet, and you agree that by using the Service you are assuming those risks.
(vi)Consent to Use of Data.
You agree that Provider may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Service. Provider may use this information, as long as it is in a form that does not personally identify you, to improve its products or provide services or technologies.
(vii)Disclaimer of Warranty.
THE SERVICE IS PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. NO WARRANTY IS PROVIDED THAT THE SERVICE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. YOUR USE OF THE SERVICE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
(viii)Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, PROVIDER'S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF $250. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
To assist Provider in maintaining and improving this application, Provider uses Google Analytics to gather information about usage of the Service. For example, it tracks how many visitors the Service has, which screens they spend time on, what kinds of operating systems and devices they use, and how they found the Service. Google Analytics does not track, collect or upload any data that personally identifies an individual (such as a name, email address, account number or billing information), or other data which can be reasonably linked to such information. The information helps Provider improve the performance of this Service for you. For more information on Google's use of the data, please see the website "How Google uses data when you use our partners' sites or apps" located at http://www.google.com/policies/privacy/partners/.
This Section E.9, captioned End User Terms constitutes the entire agreement between you and Provider concerning the subject matter hereof. This End User Agreement will be governed by and construed in accordance with the laws of the state of Iowa, excluding that body of laws pertaining to conflict of laws. If any provision of that portion of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this End User Agreement are subject to the exclusive jurisdiction of the courts of Iowa and you expressly consent to jurisdiction and venue thereof and therein. This End User Agreement and all related documentation are and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.
g. ARBITRATION PROVISION
THIS ARBITRATION PROVISION MAY SUBSTANTIALLY LIMIT OR AFFECT YOUR RIGHTS. PLEASE READ THIS ARBITRATION PROVISION CAREFULLY AND KEEP IT FOR YOUR RECORDS. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH SUBPARAGRAPH (2) BELOW, IT WILL BE PART OF THIS AGREEMENT AND HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM THAT YOU OR WE HAVE AGAINST EACH OTHER, NOW OR IN THE FUTURE. FOR EXAMPLE, IF YOU DO NOT REJECT THIS ARBITRATION PROVISION, WE CAN REQUIRE INDIVIDUAL ARBITRATION OF LEGAL DISPUTES BETWEEN YOU AND US REGARDING THE ACCOUNT, AS SET FORTH BELOW, AND YOU WILL NOT HAVE THE RIGHT TO BRING OR PARTICIPATE IN ANY CLASS ACTION OR SIMILAR PROCEEDING IN COURT OR IN ARBITRATION.
Arbitration is a method of deciding disputes outside the court system. This Arbitration Provision governs when and how any disputes you and we may have will be arbitrated instead of litigated in court. If you have any questions about this Arbitration Provision, please feel free to call us at 1-833-755-4354 (dial 711 first for operator relay assistance) and speak with one of our Customer Service Representatives.
If you don’t want this Arbitration Provision to apply you may reject this Arbitration Provision and that rejection will apply to the Account covered by this Arbitration Provision. Your rejection of this Arbitration Provision will have no effect on any of the other terms of this Agreement, the terms of your Account or any other services we may offer. In order for you to reject this Arbitration Provision, we must receive from you a signed writing stating that you reject the Arbitration Provision (“Rejection Notice”) within 30 days after the day you open (or opened) the Account. The Rejection Notice must include your name, address and Account number and must be mailed to us at the Notice Address or faxed to us at Telephone. You may send the Rejection Notice to us in any manner you choose (for example, by regular mail or by messenger service) so long as we receive it at the specified address or fax number by the specified date. If the Rejection Notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the Rejection Notice on your behalf.
Certain words used in this Arbitration Provision have special meanings: “we,” “us,” “our” and similar terms do not mean just Comenity Capital Bank (the “Bank”). These terms also include: (a) predecessors of the Bank; (b) the Bank’s parent company, Alliance Data Systems Corporation (the “Parent Company”); (c) all companies owned or controlled by the Parent Company or the Bank; (d) any prior issuer of the Account, if we have acquired the Account; and (e) all of the employees, officers, directors, agents and representatives of these companies. Finally, if either you or we elect to arbitrate any Claim you bring against us, these terms include any other person or company against whom you make a Claim in the same proceeding. “Administrator” means the American Arbitration Association (“AAA”), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org.; JAMS, 1920 Main St. at Gillette Ave., Suite 300, Irvine, CA 92614, www.jamsadr.com; or any other company selected by mutual agreement of the parties, provided that the Administrator must not have in place a formal or informal policy that is inconsistent with and purports to override the Class Action and Multi-Party Waivers set forth below in Section F.6 captioned PROHIBITION AGAINST CERTAIN PROCEEDINGS. The party initiating an arbitration gets to select the Administrator.
“Claim” means any claim, dispute or controversy between you and us that in any way arises from or relates to this agreement, your Account, any Account transaction or attempted transaction (including deposits, payments, transfers and withdrawals, non-sufficient funds and overdraft Items, and the advertising, disclosures, practices, procedures and agreements related to the foregoing, if such claim, dispute or controversy cannot be resolved without a lawsuit or arbitration proceeding. “Claim” includes disputes arising from actions or omissions prior to the date of this agreement. “Claim” has the broadest reasonable meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). However, except as provided in the next sentence, it does not include any dispute about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, Section F.6, captioned “PROHIBITION AGAINST CERTAIN PROCEEDINGS” (the “Class Action Waiver”), the final sentence in Section F.12, captioned “CONTINUED EFFECT OF ARBITRATION PROVISION; SEVERABILITY,” and/or this sentence); all such disputes are for a court and not an arbitrator to decide. Notwithstanding the foregoing, the term “Claim” includes any dispute about the validity or enforceability of this agreement as a whole.
IF YOU OR WE ELECT TO ARBITRATE A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
6. PROHIBITION AGAINST CERTAIN PROCEEDINGS
NOTWITHSTANDING ANY OTHER LANGUAGE IN THIS ARBITRATION PROVISION TO THE CONTRARY, FOR CLAIMS SUBJECT TO ARBITRATION: (1) YOU MAY NOT PARTICIPATE IN A CLASS ACTION IN COURT OR IN A CLASS-WIDE ARBITRATION EITHER AS A PLAINTIFF, CLASS REPRESENTATIVE OR CLASS MEMBER; (2) YOU MAY NOT ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION OR TO GRANT ANY RELIEF THAT APPLIES TO ANY PERSON OTHER THAN YOU AND US INDIVIDUALLY. This Class Action Waiver does not limit the right of a state or federal authority to pursue a lawsuit against us, even if the lawsuit seeks relief on behalf of you and other customers; we will not have the right to compel arbitration of any such claim.
You or we can give written notice of an intention to initiate arbitration of a Claim or to require arbitration of the other party’s Claim. This notice can be given by a party even if the other party has begun a lawsuit, and a party who has asserted a Claim in a lawsuit may still elect arbitration with respect to any other Claim in the lawsuit. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state's equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration. If an arbitration notice is given, any Claim will be resolved by arbitration under this Arbitration Provision and the applicable rules of the Administrator that are in effect at the time the Claim is filed with the Administrator. The arbitrator must be a lawyer with more than 10 years of experience or a retired judge.
Any arbitration hearing that you attend will take place in a location that is reasonably convenient for you. If either you or we require a Claim to be arbitrated, you can ask us to bear the fees charged by the Administrator and/or the arbitrator. If we believe your request is reasonable and in good faith, we will pay or reimburse you for all or part of the fees charged to you by the Administrator and/or arbitrator. Also, we will pay these fees if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. We will not ask you to pay or reimburse us for any fees we pay the Administrator or arbitrator. We will bear the expense of our attorneys, experts and witnesses. You will bear the expense of your attorneys, experts and witnesses if we prevail in an arbitration. However, for a Claim you assert that you or we elect to arbitrate, we will pay your fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.
This Arbitration Provision is governed by the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1, et seq., and not by any state law concerning arbitration. The arbitrator shall follow applicable substantive law to the extent consistent with the FAA, statutes of limitations and claims of privilege. The arbitrator is authorized to award all remedies permitted by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.
In addition to the parties’ rights under the Administrator’s rules to obtain information prior to the hearing, either party may ask the arbitrator for more information from the other party. The arbitrator will decide the issue in his or her sole discretion after allowing either party opposing the request the opportunity to object.
Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA and except for Claims involving more than $50,000 (or Claims involving requests for declaratory or injunctive relief that could cost the defendant more than $50,000). For these Claims, any party may appeal the award to a three-arbitrator panel appointed by the Administrator. That panel will consider all over again any part of the initial award that is appealed. The decision of the panel will be by majority vote and will be final and binding, except for any appeal right under the FAA. Unless applicable law provides otherwise, the appealing party will pay the appeal’s costs, regardless of the outcome. However, we will consider any good faith, reasonable request for us to pay all or any part of those fees and will pay those fees if required by applicable law and/or to the extent necessary for this Arbitration Provision to be enforced. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Provision.
Once in effect, this Arbitration Provision will remain in force no matter what happens to you or your Account. For example, this Arbitration Provision will remain in force if: (a) you close your Account or withdraw your entire Account balance; or (b) you become bankrupt or insolvent or a bankruptcy or insolvency proceeding is begun, to the extent consistent with applicable bankruptcy law. In the event of any conflict or inconsistency between this Arbitration Provision and the Administrator’s rules or the remaining terms of this Agreement, this Arbitration Provision will govern. If any portion of this Arbitration Provision cannot be enforced, the rest of this Arbitration Provision will continue to apply, provided that (A) this entire Arbitration Provision (other than this sentence) shall be null and void with respect to any Claim asserted on a class, representative or multi-party basis if the Class Action Waiver IS held to be invalid, subject to any right to appeal such holding, and (B) if a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Provision prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
Prior to initiating, joining or participating in any judicial or arbitration proceeding, whether individually, as a class representative or participant or otherwise, regarding any Claim, the party asserting the Claim (the “Claimant”) shall give the other party (the “Defendant”) written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice you send must include your name, address, telephone number and Account number and must be sent to the Notice Address (see Section F.3), Attention: Legal Department. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. The Claimant must reasonably cooperate in providing any information about the Claim that the Defendant reasonably requests. If: (a) you submit a Claim Notice in accordance with this Section on your own behalf (and not on behalf of any other party); (b) you cooperate with us by promptly providing the information we reasonably request; (c) we refuse to provide the relief you request before an arbitrator is appointed; and (d) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (not including any arbitration fees and attorneys’ fees and costs to which you may be entitled under this Arbitration Provision or applicable law).
Notwithstanding any language in this Agreement the contrary: (a) We will not attempt to apply any amendment to this Arbitration Provision without your written consent if and to the extent that the amendment would affect the litigation or arbitration of any Claim that has been the subject of a prior Claim Notice. However, this will not limit our power to waive any right we would otherwise have nor our power to afford you any additional right with respect to this Arbitration Provision. (b) We will not amend this Arbitration Provision in a manner that adversely affects your rights or responsibilities in a material manner unless we give you a right to reject the amendment and/or the Arbitration Provision in its entirety.