FineMark now offers Zelle-a fast and easy way to send money to friends and family! Simply sign up through FineMark’s Personal Mobile Banking App.
END USER TERMS
This service is provided to you by FineMark National Bank & Trust and powered by a Third Party (“Licensor”) mobile technology solution. Section A of these End User Terms is a legal agreement between you and FineMark National Bank & Trust. Section B and Section C of these End User Terms is a legal agreement between you and the Licensor.
FINEMARK NATIONAL BANK & TRUST TERMS AND CONDITIONS
Thank you for using FineMark Mobile Banking combined with your handheld’s text messaging capabilities. For help, text “HELP” to 58084. To cancel your plan, text “STOP” to 58084 at anytime. In case of questions please contact client services at email@example.com or call (844) 461-3801. By participating in FineMark Mobile Banking, you are agreeing to the following terms and conditions and any other terms and conditions you have agreed to previously with respect to the underlying electronic banking and bill paying services with FineMark National Bank & Trust, including but not limited to:
i. FineMark National Bank & Trust Online Banking Disclosure
ii. FineMark National Bank & Trust Electronic Statement Agreement
iii. FineMark National Bank & Trust Privacy Statement
1. Terms and Conditions
a. The services are separate and apart from any other charges that may be assessed by your wireless carrier for text messages sent to or received from FineMark National Bank & Trust. You are responsible for any fees or other charges that your wireless carrier may charge for any related data or message services, including without limitation for short message service.
b. The services are provided by FineMark National Bank & Trust and not by any other third party. You and FineMark National Bank & Trust are solely responsible for the content transmitted through the text messages sent to and from FineMark National Bank & Trust. You must provide source indication in any messages you send (e.g., mobile telephone number, “From” field in text message, etc.).
c. You agree to ensure that FineMark National Bank & Trust will not be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used in compliance with all applicable laws, rules and regulations including all state, federal and international laws and regulations.
2. Mobile Check Deposit
The following terms and conditions are in addition to and part of all other Terms and Conditions for FineMark National Bank & Trust Mobile Banking.
a. Mobile Check Deposit allows you to use the FineMark National Bank & Trust Mobile Application to make deposits to your eligible accounts remotely by scanning checks and transmitting images of such checks to us.
b. By using this service you agree to scan and deposit only checks as that term is defined in Federal Reserve Regulation CC (“Reg CC”). When the image of the check transmitted is converted to an Image Replacement Document for subsequent presentment and collection, it shall be deemed an item within the meaning of Articles 3 and 4 of the Uniform Commercial Code.
c. You agree that you will not scan and attempt to deposit any of the following types of checks or other items:
i. Checks payable to any person other than you or any co-holder on the account into which check is being deposited;
ii. Checks containing alterations or are suspected to be fraudulent or otherwise not authorized by the owner of the account on which the check is drawn;
iii. Checks that have been previously deposited at another institution via physical item, image or electronic funds transfer;
iv. Checks drawn on an institution located outside of the United States;
v. Checks not payable in United States currency;
vi. Checks payable on sight or payable through drafts, as defined by Reg CC;
vii. Checks dated more than six (6) months prior to the date of deposit;
viii. Checks with any endorsement on the back other than as specified in this agreement; and
ix. Any non-negotiable items.
d. You agree to restrictively endorse any item transmitted through Mobile Check Deposit as “For mobile deposit only / FineMark Bank” followed by your signature or the name of your business to which you are depositing. You can also check the “mobile deposit box” on the back of the check you are depositing.
e. We reserve the right to reject any item transmitted, at our discretion, without liability to you. FineMark National Bank & Trust is not responsible for items we do not receive or for images that are dropped during transmission. An image of an item shall be deemed received when you receive a confirmation from us that the item was received. A confirmation is not a representation, warranty or other indication that the image will be credited or processed and honored by the bank the item is drawn upon. The image will be subject to review. We reserve the right to charge back to your account any item that is subsequently determined ineligible.
f. You agree that items deposited using Mobile Check Deposit are not subject to the funds availability requirements of Reg CC. In general, if an item is received and accepted before 4:00 PM EST on a business day that we are open, we consider that day to be the day of your deposit. Otherwise we will consider that the deposit was made on the next business day that we are open.
g. Upon your receipt of confirmation from us that we have received the image of an item, you agree to retain the check for at least 30 calendar days from the date of transmission. During the time the check is retained you agree to keep it in a secure location, and promptly provide it to us upon request. After 30 days you agree to destroy the check in such a manner as to render it incapable of further transmission, deposit or presentment.
h. All items deposited via Mobile Check Deposit are subject to review and/or approval. We reserve the right to impose limits on the amount(s) and number of items that you transmit and to modify such limits from time to time without prior notice.
END USER LICENSE AGREEMENT TERMS FOR THE DOWNLOADABLE APP
To be Agreed to by End User Prior to Use of the Downloadable App
You acknowledge and agree that a third party provider or licensor to your financial services provider (“Licensor”) is the owner of all right, title and interest in and to the downloaded software to be used for access to Mobile Banking services from your financial services provider and the computer programs contained therein in machine readable object code form as well as any accompanying user documentation along with all subsequent copies, updates or versions thereof which are made available to you (if any), regardless of the media or form in which they may exist (collectively the “Software”).
Subject to the terms and conditions of this Agreement, you are hereby granted a limited, nonexclusive license to use the Software in accordance with the terms of this Agreement. All rights not expressly granted to you by this Agreement are hereby reserved by the owner of the Software. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This Agreement may be terminated at any time, for any reason or no reason. Upon termination, you agree to immediately destroy all copies of the Software in your possession or control.
You shall not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
4. Disclaimer Warranty
THE SOFTWARE 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 SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE SOFTWARE AND ANY OTHER MATERIAL OR SERVICES DOWNLOADED OR MADE AVAILABLE TO YOU THROUGH THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE.
5. Limitations of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR , THE PROVIDER OF ANY FINANCIAL SERVICES AVAILABLE THROUGH OR RELATED TO THE SOFTWARE, ANY OF THEIR CONTRACTORS OR PROVIDERS OR ANY OF EACH OF THEIR AFFILIATES BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, 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, LIABILITY OF LICENSOR OR ANY OF THE OTHER PERSONS OR ENTITIES DESCRIBED IN THE PRECEDING SENTENCE ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF $10.00 OR THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE.
6. U.S. Government Restricted Rights
The Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this Agreement.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the state of Florida excluding that body of laws pertaining to conflict of laws. If any provision 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 Agreement are subject to the exclusive jurisdiction of the courts of Florida and the parties expressly consent to jurisdiction and venue thereof and therein. The parties confirm that this Agreement and all related documentation is 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.
8. Content and Services
Neither Licensor nor the provider of the wireless network is the provider of any financial services available through or related to the Software, and neither Licensor nor the provider of the wireless network or any contractor of the provider of the financial services available through or related to the Software, is responsible for any of the materials, information, products or services made available to you via the Software.
1. Description of Services
a. We have partnered with the Zelle Network (“Zelle”) to enable a convenient way to transfer money between you and others who are enrolled directly with Zelle® or enrolled with another financial institution that partners with Zelle (each, a “User”) using aliases, such as email addresses or mobile phone numbers (the “Service”). We will refer to financial institutions that have partnered with Zelle as “Network Banks.”
b. Zelle provides no deposit account or other financial services. Zelle neither transfers nor moves money. You may not establish a financial account with Zelle of any kind. All money will be transmitted by a Network Bank.
c. THE SERVICE IS INTENDED TO SEND MONEY TO FRIENDS, FAMILY AND OTHERS YOU TRUST. YOU SHOULD NOT USE THE SERVICE TO SEND MONEY TO RECIPIENTS WITH WHOM YOU ARE NOT FAMILIAR OR YOU DO NOT TRUST.
2. Eligibility and User Profile
When you enroll to use the Service or when you permit others to whom you have delegated to act on your behalf to use or access the Service, you agree to the terms and conditions of this Agreement. You represent that you have the authority to authorize debits and credits to the enrolled bank account.
You agree that you will not use the Service to send money to anyone to whom you are obligated for tax payments, payments made pursuant to court orders (including court-ordered amounts for alimony or child support), fines, payments to loan sharks, gambling debts or payments otherwise prohibited by law, and you agree that you will not use the Service to request money from anyone for any such payments.
The Service is intended for personal, not business or commercial use. You agree that you will not use the Service to send or receive payments in connection with your business or commercial enterprise. We reserve the right to decline your enrollment if we believe that you are enrolling to use the Service with your business account or to receive business or commercial payments. We further reserve the right to suspend or terminate your use of the Service if we believe that you are using the Service for business or commercial purposes, or for any unlawful purpose.
We may change any term of this agreement. If we have notified you of a change in any term of this service and you continue to use the service after the effective date of the change, you have agreed to the new term(s).
3. Privacy and Information Security
We may disclose information about your account or the funds you receive or send to third parties in order to complete transactions, in connection with our offering of these services, in connection with the investigation of any claim related to your account or the funds you send or receive, to comply with government agency or court orders, in accordance with your written permission or as otherwise permitted in accordance with our Privacy Statement.
4. Wireless Operator Data
5. Enrolling for the Service
a. You must provide us with an email address that you regularly use and intend to use regularly (i.e., no disposable email addresses) and a permanent U.S. mobile phone number that you intend to use for an extended period of time (i.e., no “burner” numbers). You may not enroll in the Service with a landline phone number, Google Voice number, or Voice over Internet Protocol.
b. Once enrolled, you may:
i. authorize a debit of your account to send money to another User either at your initiation or at the request of that User; and
ii. receive money from another User either at that User’s initiation or at your request, subject to the conditions of the Section below titled “Requesting Money.”
6. Consent to Emails and Automated Text Messages
By participating as a User, you represent that you are the owner of the email address, mobile phone number, and/or other alias you enrolled, or that you have the delegated legal authority to act on behalf of the owner of such email address, mobile phone number and/or other alias to send or receive money as described in this Agreement. You consent to the receipt of emails or text messages from us, from Zelle, from other Users that are sending you money or requesting money from you, and from other Network Banks or their agents regarding the Services or related transfers between Network Banks and you. You agree that we may, Zelle may or either of our agents may use automatic telephone dialing systems in connection with text messages sent to any mobile phone number you enroll. You further acknowledge and agree:
a. You are responsible for any fees or other charges that your wireless carrier may charge for any related data, text or other message services, including without limitation for short message service. Please check your mobile service agreement for details or applicable fees.
b. You will immediately notify us if any email address or mobile phone number you have enrolled is (i) surrendered by you, or (ii) changed by you.
c. In the case of any messages that you may send through either us or Zelle or that we may send or Zelle may send on your behalf to an email address or mobile phone number, you represent that you have obtained the consent of the recipient of such emails or automated text messages to send such emails or text messages to the recipient. You understand and agree that any emails or text messages that we send or that Zelle sends on your behalf may include your name.
d. Your wireless carrier is not liable for any delay or failure to deliver any message sent to or from us or Zelle, including messages that you may send through us or through Zelle or that we may send or Zelle may send on your behalf.
e. To cancel text messaging from us, send STOP to 20736. For help or information regarding text messaging, send HELP to 20736 or contact client service at firstname.lastname@example.org or call (833) 461-3802. You expressly consent to receipt of a text message to confirm your “STOP” request.
f. We may, in our sole discretion and for any reason or no reason, decline at any time to accept or use, or continue to accept or use, any specific email address or telephone number provided to us by any person.
7. Receiving Money; Money Transfers by Network Banks
Once a User initiates a transfer of money to your email address or mobile phone number enrolled with the Service, you have no ability to stop the transfer. By using the Service, you agree and authorize us to initiate credit entries to the bank account you have enrolled.
Most transfers of money to you from other Users will occur within minutes. There may be other circumstances when the payment may take longer. For example, in order to protect you, us, Zelle and the other Network Banks, we may need or Zelle may need additional time to verify your identity or the identity of the person sending the money. We may also delay or block the transfer to prevent fraud or to meet our regulatory obligations. If we delay or block a payment that you have initiated through a request for money, we will notify you in accordance with your User preferences (i.e. email, push notification).
If you are receiving a payment from a business or government agency, your payment will be delivered in accordance with both this Agreement and the procedures of the business or government agency that is sending you the payment.
8. Sending Money; Debits by Network Banks
You may send money to another User at your initiation or in response to that User’s request for money. You understand that use of this Service by you shall at all times be subject to (i) this Agreement, and (ii) your express authorization at the time of the transaction for us to initiate a debit entry to your bank account. You understand that when you send the payment, you will have no ability to stop it. If the person you sent money to has already enrolled with Zelle, either in the Zelle mobile app or with a Network Bank, the money is sent directly to their bank account (except as otherwise provided below) and may not be canceled or revoked.
In most cases, when you are sending money to another User, the transfer will occur in minutes; however, there are circumstances when the payment may take longer. For example, in order to protect you, us, Zelle and the other Network Banks, we may need additional time to verify your identity or the identity of the person receiving the money. If you are sending money to someone who has not enrolled as a User with Zelle, either in the Zelle mobile app or with a Network Bank, they will receive a text or email notification instructing them on how to enroll to receive the money. You understand and acknowledge that a person to whom you are sending money and who is not enrolling as a User may fail to enroll with Zelle, or otherwise ignore the payment notification, and the transfer may not occur.
The money may also be delayed, or the transfer may be blocked to prevent fraud or comply with regulatory requirements. If we delay or block a payment that you have initiated, we will notify you in accordance with your User preferences (i.e. email, push notification).
We have no control over the actions of other Users, other Network Banks or other financial institutions that could delay or prevent your money from being delivered to the intended User.
Neither we nor Zelle shall have liability to you for any transfers of money, including without limitation, (i) any failure, through no fault of us or Zelle to complete a transaction in the correct amount, or (ii) any related losses or damages. Neither we nor Zelle shall be liable for any typos or keystroke errors that you may make when using the Service.
THE SERVICE IS INTENDED FOR SENDING MONEY TO FAMILY, FRIENDS AND OTHERS WHOM YOU TRUST. YOU SHOULD NOT USE ZELLE TO SEND MONEY TO PERSONS WITH WHOM YOU ARE NOT FAMILIAR OR YOU DO NOT TRUST. ZELLE DOES NOT OFFER A PROTECTION PROGRAM FOR AUTHORIZED PAYMENTS MADE THROUGH THE SERVICE (FOR EXAMPLE, IF YOU DO NOT RECEIVE THE GOODS OR SERVICES THAT YOU PAID FOR, OR THE GOODS OR SERVICES THAT YOU RECEIVED ARE DAMAGED OR ARE OTHERWISE NOT WHAT YOU EXPECTED).
10. Send Limits
You may not make transfers in excess of the limits described below. The amount of money you can send will vary based on the type of Funding Account you use, your recipient and the transaction history for each recipient. Transfer limits from a FineMark National Bank & Trust Account default to a daily aggregate dollar limit of $300 and a transaction limit of $300.
Transfer limits applicable to Members of other financial institutions are governed by the Member’s Financial Institution’s transfer service agreements. Transfer limits applicable to Members who use the separate Zelle transfer service website or mobile app are governed by Zelle’s separate transfer service agreements.
We reserve the right to change from time to time the dollar amount of transfers you are permitted to make using the Transfer Service. For example, in the event that your use of the Transfer Service has been suspended and reinstated, you understand and agree that your use of the Transfer Service thereafter may be subject to lower dollar amount limitations than would otherwise be permitted by us. All transfer limits are subject to temporary reductions to protect the security of client accounts and/or the Transfer Service. Your transfer limits may vary from those of other Members, depending upon criteria we establish from time to time.
11. Requesting Money
You may request money from another User. You understand and acknowledge that Users to whom you send payment requests may reject or ignore your request. Neither we nor Zelle guarantee that you will receive money from other Users by sending a payment request, or that you will receive the amount that you request. Neither we nor Zelle accept responsibility if the other User rejects or ignores your request or sends you an amount that is less than you request. If a User ignores your request, we may decide or Zelle may decide, in our sole discretion, that we will not send a reminder or repeat request to that User.
By accepting this Agreement, you agree that you are not engaging in the business of debt collection by attempting to use the Service to request money for the payment or collection of an overdue or delinquent debt; to request money that is owed to another person; or to collect any amounts that are owed pursuant to a court order. You agree to indemnify, defend and hold harmless Zelle, its owners, directors, officers agents and Network Banks from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorney’s fees, resulting from or arising out of any request for money that you send that is related to overdue or delinquent amounts.
You agree to receive money requests from other Users, and to only send requests for legitimate and lawful purposes. Requests for money are solely between the sender and recipient and are not reviewed or verified by us or by Zelle. Neither we nor Zelle assume responsibility for the accuracy or legality of such requests and do not act as a debt collector on your behalf or on behalf of the sender of a request for money.
We reserve the right, but assume no obligation, to terminate your ability to send requests for money in general, or to specific recipients, if we deem such requests to be potentially unlawful, abusive, offensive or unwelcome by the recipient.
12. Transaction Errors
In case of errors or questions about your EFT, call us at (833) 461-3802 or the number listed on the statement for your account, or write us at: FineMark National Bank & Trust, 12681 Creekside Lane, Fort Myers, FL 33919 as soon as you can, if you think your statement is wrong or if you need more information about a transfer listed on the statement.
We must hear from you no later than 60 days after the date we send the first statement on which the problem or error appeared:
i. Tell us your name and account number (if any)
ii. 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
iii. Tell us the dollar amount of the suspected error
If you tell us orally, we may require that you send 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 to conduct our investigation, however, we will notify you of our need for an extension, which may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 Business Days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your account.
For errors involving new accounts or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 Business Days to credit your account for the amount you think is in error. We will tell you the results within three Business Days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in the investigation.
13. Your Liability for Unauthorized Transfers
You understand that we must rely on the information provided by you and you authorize us to act on any instruction, which has been or reasonably appears to have been sent by you, to submit fund transfer instructions on your behalf. You understand that financial institutions receiving the fund transfer instructions may rely on such information. We are not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. You agree to accept full responsibility for losses resulting from any of your errors, duplication, ambiguities, or fraud in the information that you provide. You agree not to impersonate any person or use a name that you are not authorized to use. If any information you provide is untrue, inaccurate, not current or incomplete, without limiting other remedies, we reserve the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information.
If you permit other persons to use the Service or your Password, you are responsible for any transaction they authorize from your accounts. If you believe that your Password has been lost or stolen or that someone has transferred or may transfer money from your account without your permission, notify us AT ONCE, by calling (833) 461-3802.
14. Liability for Failure to Complete Transfers
If we do not complete a Transfer Transaction to, or initiate a Transfer Transaction from, your account within any time frames, or in the correct amount, all in accordance with our agreement with you, we will not be liable, for instance:
i. if, through no fault of ours, you do not have enough money in your Funding Account to make the transfer;
ii. if the transfer would go over the credit limit on your overdraft line;
iii. if the system supporting the Transfer Service was not working properly and you knew about the breakdown when you started the transfer;
iv. if the Transfer Transaction is delayed or cancelled for any of the reasons described in other Sections of this Agreement;
v. if circumstances beyond our control (such as a fire or flood) prevent the transfer, despite reasonable precautions that we have taken.
There may be other instances in which we will not be responsible for failure of the service.
We do not charge a fee for using the Transfer Service. However, fees associated with text messaging may be assessed by your mobile carrier, and data rates may apply. In addition, fees may apply if you use the Transfer Service through another financial institution or through Zelle’s separate transfer service website or mobile app. However, we reserve the right to assess fees in connection with the Transfer Service in the future. If we do assess fees, we will give you reasonable notice as required by law and deduct any applicable fees from the Funding Account used for the Transfer Transaction.
16. Use of Our Online Banking Site and Mobile App
You agree to access this website and mobile app in compliance with our Online Banking Disclosure and the Terms & Conditions of our website, which are available at www.finemarkbank.com/disclosures and incorporated into and made part of this Agreement by this reference.
17. Cancellation of the Service
You may cancel the Service by calling (833) 461-3802. By cancelling the Service, any Pending, Repeating and Future Dated transfers, will also be terminated, however any transfer that is In Process cannot be cancelled by you. When you cancel the Service, you will no longer be able to access or use the Service. When you cancel the Service, it will not cancel your other online services or your account relationship with us.
18. Right to Terminate Access
In the event (i) you violate any terms of this Agreement, (ii) there are unauthorized or fraudulent transactions related to your Funding Account, Deposit Account or use of the Transfer Service, or (iii) we incur problems with your use of the Transfer Service, you agree that we may suspend or terminate your access to the Transfer Service at any time.
We may, in our sole discretion, at any time and without prior notice to you or other Transfer Service participants, suspend or terminate:
i. the Transfer Service,
ii. your ability to send or receive funds through a Transfer Transaction,
iii. your ability to send funds through a Transfer Transaction, while continuing to permit you to receive funds through a Transfer Transaction,
iv. your ability to request funds from another Member, or
v. your ability to receive requests for funds from another Member.
19. Disclaimer of Warranties
EXCEPT AS OTHERWISE PROVIDED HEREIN, AND SUBJECT TO APPLICABLE LAW, NEITHER WE NOR ZELLE MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH RESPECT TO THE SERVICE. WE AND ZELLE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICE DESCRIBED OR PROVIDED. NEITHER WE NOR ZELLE WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
20. Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED HEREIN AND SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL WE OR ZELLE, OUR OWNERS, DIRECTORS, OFFICERS, AGENTS OR NETWORK BANKS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES ARISING OUT OF (I) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SERVICE; (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES DESCRIBED OR PROVIDED; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICES DESCRIBED OR PROVIDED, EVEN IF WE OR ZELLE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH OUR SERVICE OR ZELLE’S SERVICE OR WITH THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
IN THOSE STATES WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES MAY NOT APPLY, ANY LIABILITY OF US OR ZELLE, OUR OWNERS, DIRECTORS, OFFICERS AND AGENTS OR THE NETWORK BANKS LIABILITY IN THOSE STATES IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL, IN NO EVENT, EXCEED ONE HUNDRED DOLLARS ($100.00).
You acknowledge and agree that you are personally responsible for your conduct while using the Service, and except as otherwise provided in this Agreement, you agree to indemnify, defend and hold harmless us, Zelle, our owners, directors, officers, agents and Network Banks from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, errors, or inability to use the Service, or any violation by you of the terms of this Agreement.
22. Governing Law; Choice of Law; Severability
This Agreement and its enforcement shall be governed by the laws of the State of Florida, without regard to any choice of law provision, and shall inure to the benefit of our successors and assigns whether by merger, consolidation or otherwise. The account(s), products and services accessed via the Service shall be governed by laws of the applicable account agreements.
We will not be deemed to have waived any of our rights or remedies under this Agreement unless such waiver is in writing and signed by us. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The remaining provisions of this Agreement and the application of the challenged provision to persons of circumstances other than those as to which it is invalid or unenforceable will not be affected thereby, and each of those provisions will be valid and enforceable to the full extent permitted by law.
Subject to the terms of this Agreement, the Services are generally available 24 hours a day, seven days a week with the exception of outages for maintenance and circumstances beyond our or Zelle’s control. Live client service generally will be available Monday through Friday, excluding US bank holidays.
Zelle and the Zelle related marks are wholly owned by Early Warning Services, LLC and are used herein under license.