This Online Banking Agreement and Disclosure Statement (the “Agreement”) is a legal agreement establishing the terms and conditions under which you are authorized to use Northwest FCS’s online banking services. Please read this Agreement carefully. By clicking “I Accept” or by otherwise accessing or using Northwest FCS’s online banking services, you agree to be bound by the terms and conditions of this Agreement. This Agreement includes, among other things, terms and conditions with respect to:
• our obligations to you;
• your obligations as a user of Northwest FCS’s online banking services (the “Services,” as further defined below);
• our mutual agreement to arbitrate disputes;
• the ways in which we may send you notices and disclosures;
• limitations on our liability to you; and
• your mutual agreement with us that the laws of the State of Washington will govern and control this Agreement, without regard to its conflict-of-laws principles.
If you do not want to agree to the terms and conditions of this Agreement, you must not access or use the Services. Your electronic consent to this Agreement is also your acknowledgement that you have received or were offered a copy of this Agreement in electronic form.
This Agreement consists of three separate parts:
PART I of this Agreement describes the general terms and conditions that apply to all uses of the Services and any and all features, products or services that we may make available to you as part of the Services.
PARTS II and III of this Agreement are product- or service-specific terms and conditions that apply to specific products, services or features that we may make available to you as part of the Services. In particular:
PART II describes the terms and conditions that apply to your use of ACH services.
PART III describes the terms and conditions that apply to your use of Mobile Check Capture.
PART I. GENERAL TERMS AND CONDITIONS FOR USE OF ONLINE BANKING
In addition to the definitions appearing elsewhere in this Agreement, the following capitalized terms shall have the meanings indicated in this Section 1:
“Access Codes” include the customer identification number, log in, password and any other means of access to the Services we establish or provide to you.
“Additional Services” means each of the optional products and services you may access, use or enroll in through Services as described more fully in Parts II and III of this Agreement.
“Authorized User” means a person given authority to take action on your behalf with respect to the Services.
“Northwest FCS,” “we,” “us” or “our” means Northwest Farm Credit Services, FLCA, Northwest Farm Credit Services, PCA, or Northwest Farm Credit Services, ACA, as applicable.
“Services” means all of the various products, services or features that Northwest FCS provides as part of its online banking services, including without limitation, this website and any software applications or software as a service services Northwest FCS offers or makes available as part of its online banking services. The “Services” include any Additional Services.
“Third Party Service Providers” means third parties with which Northwest FCS has contracted to provide you with products and/or services through the Services.
“You” or “your” means the customer or user of the Services.
2. Services Features, Functionality and Availability
You may use the Services when and as available. Although Northwest FCS generally intends for the Services to be available on an uninterrupted basis, the Services will not always be available (e.g., during maintenance, changes, outages and for other reasons). We further reserve the right to change, modify, eliminate and/or restrict or block access to all or any part of the Services, including any products, services, features or content displayed or made available through the Services, from time to time with or without notice to you, in our discretion. We will not be liable to you if for any reason all or any part of the Services is unavailable at any time for any period.
3. Third Party Products or Services
The Services may include or may permit you to access and/or use third party products or services. Any product or service offered by a Third Party Service Provider through Services may be subject to other terms, agreements, restrictions and limitations of liability as required by the applicable Third Party Service Provider. You may be required to accept any such terms and conditions as part of the enrollment process.
You acknowledge and agree that Northwest FCS’s providing any third party products or services does not constitute or imply an endorsement by Northwest FCS of the Third Party Service Provider or its products or services. Any Third Party Service Provider may be a third party beneficiary of this Agreement having the right to enforce this Agreement in accordance with its terms.
Unless we expressly say so in this Agreement, you acknowledge and agree that Northwest FCS shall not be responsible for, and shall have no liability to you in connection with, the unavailability, failure of, or your inability to use, any such third party products or services. Notwithstanding the preceding sentence, we use CoBank ACB (“CoBank”) to provide certain money transmittal aspects of the Services. You agree with Northwest FCS and CoBank that CoBank may consider you to be its customer solely for purposes of the money transmittal aspects of the Services that CoBank provides to Northwest FCS, using accounts at CoBank in Northwest FCS’s name and/or your name. You also agree with Northwest FCS and CoBank that you will not bring any claims, disputes, demands, actions, suits or other litigation, arbitration, or other dispute resolution or administrative proceedings against CoBank; rather, any such claims, disputes, demands, actions, suits or other litigation, arbitration, or other dispute resolution or administrative proceedings relating to CoBank’s acts or omissions will be brought directly against Northwest FCS to the same extent as if Northwest FCS has performed that portion of the Services itself.
Each time you access and use the Services, your use constitutes your continuing agreement: (i) to use the Services in strict accordance with the terms and conditions of this Agreement; and (ii) to be legally bound by the terms and conditions of this Agreement, even as those terms and conditions may change following your initial enrollment. Among other things, you agree:
• To use the Services only for those accounts for which you have authorized access;
• To use the Services only in accordance with the terms and conditions of this Agreement and all applicable laws;
• To grant access to the Services to Authorized Users in accordance with the terms and conditions of this Agreement and apply the appropriate permissions as made available by the Services;
• To comply with any user instructions and requirements as they may be promulgated by Northwest FCS and/or its Third Party Service Providers from time to time (these instructions and requirements are part of this Agreement); and
• To remain bound by the terms and conditions of all of your loan documents, which will always control and may not be changed by any transaction made through the Services or without the express written consent of Northwest FCS.
Certain loan products or services offered by Northwest FCS may not be made available through the Services. If any transaction requiring prompt completion cannot be made or concluded through the Services, you must telephone online banking support at 866-552-9172
during Northwest FCS’s normal business hours or email us at email@example.com.
The Services are provided as a privilege and convenience to Northwest FCS customers. Northwest FCS reserves the right to terminate the entire online banking program offered through the Services or to prohibit, limit or restrict your ability to access any of your account(s) through the Services, at any time with or without cause or prior notice to you. Northwest FCS also reserves the right to terminate your ability to access your account(s) through the Services if your account becomes delinquent, is declared to be in default, becomes subject to litigation or other court proceedings, is restructured, or in Northwest FCS's sole and absolute discretion, is determined to be in violation of applicable law or this Agreement. While Northwest FCS will use commercially reasonable efforts to notify you if your access to the Services is terminated for any reason (using the contact information for your account on file by Northwest FCS), you acknowledge and agree that Northwest FCS is under no obligation to do so.
It is your responsibility to obtain and maintain your online communications link to the Services to ensure that your use of such communications link is in compliance with applicable requirements, including any requirements of telecommunications companies and authorities. You are responsible for obtaining, installing, maintaining and operating, at your sole cost and expense, all hardware, software, and Internet access services necessary to access and use the Services.
The Services may provide the ability for you to administer and delegate Authorized Users to access your accounts through the Services. You would be required to define the accounts, transactions types, features and permissions for each Authorized User. Additionally, you would be responsible to add, change, and remove all features and permissions granted to Authorized Users who can access, administer, manage, view and transact on your accounts. By granting Authorized Users access to your accounts, you are ensuring compliance by each Authorized User with all such terms and conditions set forth in this Agreement.
5. Transaction Posting
Transactions processed using the Services are not final at the time we receive your instructions. Rather, unless we inform you otherwise or as provided in connection with the Additional Services, online banking transactions made through the Services will be posted to your account(s) as follows:
• Transactions initiated prior to the deadline established by Northwest FCS, will be effective that same day.
• Transactions initiated after the deadline established by Northwest FCS, will be effective the next business day.
• Transactions initiated on a weekend or Northwest FCS holiday will be effective the next business day.
• A “business day” is every day except Saturdays, Sundays and holidays.
Transactions processed using the Services are further subject to review by Northwest FCS in accordance with your loan documents and the credit policies of Northwest FCS. For security reason, Northwest FCS may implement limits on the number or amount of transactions you can make using the Services.
If you want to stop or change the transactions you have instructed Northwest FCS to make, you must notify Northwest FCS before we have started processing the transaction, this applies to both individual transactions and preauthorized recurring transactions. You can log in to the Services and access the appropriate function to either delete or make the change. If you need assistance, you can telephone online banking support at 866-552-9172 during Northwest FCS’s normal business hours or email us at firstname.lastname@example.org.
6. Processing Restrictions
Northwest FCS may refuse to process online banking transactions made through the Services, as determined by Northwest FCS in its sole and absolute discretion. In particular, Northwest FCS will decline to process your transaction if:
• Your account does not have sufficient funds to cover the transaction or transaction is over the allowable limit;
• Your loan is in default or the requested transaction will result in a default;
• Your transaction violates the terms and conditions of this Agreement, your loan documents, or any other agreement you may have with us or with any of our Third Party Service Providers;
• A legal order prohibits Northwest FCS from processing the transaction;
• Northwest FCS terminates your ability to access your account(s) through the Services;
• Northwest FCS terminates this Agreement and/or its online banking program;
• You (or anyone you allow to access or use your account) commits or attempts to commit fraud or violate any applicable laws;
• The electronic terminal, telecommunication device, Internet access service or any electronic fund transfer system required for the transaction is not working properly;
• You do not provide complete and correct information required for the transaction;
• You do not follow all applicable instructions and requirements necessary to use the Services;
• Circumstance beyond Northwest FCS's control (including without limit fire, flood, acts of God, unexpected disruption of service, or action of any third party) prevent the processing of the transaction; or
• Northwest FCS or its Third Party Service Providers have any reasonable basis to suspect improper or irregular use of or access to the Services.
7. Account Errors
If an error occurs in a transaction made using the Services, you must immediately telephone online banking support at 866-552-9172 during Northwest FCS’s normal business hours or email us at email@example.com. If you discover a transaction
error as a result of reviewing your periodic statement, you must notify Northwest FCS of the suspected error within 60 days of your first receiving the initial account billing statement on which that error appears.
To report an error, please provide the following information:
• Your name and account numbers;
• A brief description of the suspected error or nature of the problem;
• The dollar amount of the suspected error; and
• Any other information you believe is relevant or that Northwest FCS may require to determine the nature of the error.
If you report a suspected error by email or telephone, we may ask you to provide a written confirmation (by postal mail or facsimile) of your complaint or question within 10 business days.
Northwest FCS will investigate your reported error within 10 business days. If an error is discovered, it will be corrected promptly. If we need more than 10 days to investigate your complaint or question, we may take up to 45 days to complete our investigation. In this case, we will provisionally credit your account within 10 business days for the amount you think is in error. That way, you will have use of the money during our investigation. However, if you reported the suspected error and thereafter failed to confirm your complaint or question in writing within 10 business days after we requested you to do so, we will not provisionally credit your account during the investigation.
If we find no error, we will send you a written explanation of our findings within three business days after we finish our investigation. You may request copies of the documents that we used in our investigation. If we have made a provisional credit, a corresponding debit will be made from your account.
You agree to promptly remit any fees and charges for the Services utilized by you in accordance with Northwest FCS's statement of fees. Northwest FCS reserves the right to change the stated fees from time to time upon reasonable notice. Northwest FCS is authorized to debit your accounts with Northwest FCS for the payment of such fees. You further agree to pay any additional reasonable charges for services requested by you that are not covered by this Agreement. You are also responsible for paying for any telephone or Internet service fees incurred by you in connection with your use of the Services.
9.Access Codes and Security
Northwest FCS has adopted standard security measures and security practices with respect to the use of the Services. Your compliance with these measures and practices is a required condition of your use of the Services. Our security measures are outlined on Northwest FCS’ website, www.northwestfcs.com. You acknowledge that the security measures are commercially reasonable. We may change the security measures applicable to the Services. By continuing to use the Services following any such change, you agree that such changed measures are commercially reasonable.
You further acknowledge the importance of your own role in preventing the unauthorized access to or use of the Services. In particular, you agree to promptly examine any and all statements provided by Northwest FCS as soon as you receive them. You agree to protect and ensure the confidentiality and security of your account, account number, and Access Codes, in addition to your personal identification information such as your driver’s license number, social security number, and tax identification number. You acknowledge and agree that personal information of this nature can be used by third parties, either alone or with other information, to access and use your account without your authorization.
Your Access Codes are intended to protect your account against unauthorized access or use. You are responsible for establishing and maintaining your security preferences for your Access Codes. If your Access Codes are ever lost, stolen or improperly disclosed,
or you notice any irregularity in your account, you agree to report this fact immediately to Northwest FCS’s online banking support at 866-552-9172, and to immediately change your Access Codes or email us at firstname.lastname@example.org.
None of our employees or any employees of our Third Party Service Providers will contact you via phone or email requesting your Access Codes. If you are contacted by anyone requesting this information, please report this fact to Northwest FCS’s online banking support at 866-552-9172 or email us at email@example.com.
Northwest FCS shall be entitled to act on all instructions or transactions provided or made through the Services with respect to any account where such instructions or transactions are provided or made using the correct Access Codes for that account. Northwest FCS is not liable for any unauthorized transaction or access to your account, or for any damages resulting from such use, if such action was initiated using your Access Codes. Anyone to whom you give your Access Codes to will have full access to all of your accounts which are accessed by that Access Codes.
Certain information and/or records may be downloadable or transferrable via the Services (“Electronic Records”). You acknowledge and agree that it is your responsibility to ensure that any such Electronic Records cannot be intercepted or viewed by others. Because Northwest FCS has no control as to the persons who have access to your personal computer, your mobile device, or your Access Codes, Northwest FCS will have no liability to you for any unauthorized access to or use of your personal computer, your mobile device, or your Access Codes.
Northwest FCS has no control over any Electronic Records once they are downloaded or otherwise transferred by you outside of the Services, so you agree to be solely and exclusively responsible for the confidentiality and security of any such Electronic Records. In the event that you transfer or forward your Electronic Records to a third party, you understand that you have no expectation of privacy with respect to the content of any such Electronic Records. Accordingly, you hereby agree to release and do hereby release Northwest FCS for, from and against any and all liability of any kind with respect to the confidentiality or security of any Electronic Record once that Electronic Record is downloaded by you or otherwise forwarded or transferred by you.
10. Electronic Statements
Certain features of the Services enable Northwest FCS to send periodic statements or other special notices to you in secure electronic form rather than in paper form for your selected accounts. In order to receive electronic statements, you or your Authorized User must configure your account to receive such electronic statements. Once your account is configured to receive electronic statements, you will be deemed to have expressly consented to receive such electronic statements, and you will no longer receive a paper copy of your periodic statement sent by United States mail.
Upon election to receive electronic statements, an email notification will be sent to the email address associated with the account each time we prepare a statement. That email will inform you or your Authorized User that the electronic statement is available online via the Services. You will be required to log in to the Services in order to view your electronic statement.
By providing your consent as described above, you hereby authorize Northwest FCS to provide notification of periodic account statements and other periodic or special notices to you by email. Other periodic or special notices may include hold notices on availability of funds, error resolution notices, privacy notices, or any other notice that applicable laws and regulations from time to time may require us to provide to you. Your authorization means that we can provide you with periodic statements of your account and special notices electronically. You are solely responsible for notifying us of any changes to your email address and for ensuring your email address is correct. If your email is returned as undeliverable, we will not attempt re-delivery to an alternative email. Notification of any email change should be received before the end of the normal statement cycle. You may telephone online banking support at 866-552-9172 during Northwest FCS’s normal business hours or email us at firstname.lastname@example.org.
The email address for receiving electronic statement notifications may be changed by logging into your account via the Services and using the standard process for changing the email address associated with your account. Once the email address associated with your account has been changed as set forth in the preceding sentence, we will commence sending electronic statement notifications to the changed email address. Northwest FCS will have no liability to you or to any third party (including any joint owner of the account) in the event the email address associated with your account is changed as described in this paragraph.
Your electronic statement will be available on the same day you are notified by email. Any applicable time periods within which you must notify us of any errors on your statements shall begin on the email date, regardless of when you receive and/or open your electronic statement. We will not charge you a fee if you request a paper copy of a regulatory notice or a copy of a change of fees or terms applicable to your account. Furthermore, if you wish to have a paper copy of a statement or check, our standard fees will apply.
If you believe that your electronic statement is lost or that someone has obtained access to your electronic statement without your permission, telephone online banking support immediately at 866-552-9172 during Northwest FCS’s normal business hours or email us at email@example.com.
You have the right to withdraw your consent to receive electronic statements at any time. To withdraw your consent, simply log in to your Services account and configure your account to no longer receive electronic statements. The withdrawal of your consent should be received before the end of your normal statement cycle.
Please note that to receive electronic statements, you must have access to a computer with Internet access such that you can access the Services. If you wish to download or forward electronic statements, you must also have a valid email address. In order to print electronic statements, you must also have a printer and have installed Adobe Acrobat Reader 5.0 or above on your computer.
11. Data Privacy
Please note that if you select a product or service offered by a Third Party Service Provider, your transaction may be governed by the Third Party Service Provider’s terms and conditions, including the Third Party Service Provider’s privacy notice. You should review the Third Party Service Provider’s privacy notice prior to completing your transaction with the Third Party Service Provider.
You agree that we are permitted to electronically record telephone calls and data transmissions between us and any person acting on your behalf, and we may keep those recordings for as long as we consider it necessary to do so. If our records regarding your use of the Services are different than yours (including our records regarding transactions processed through the Services), our records will govern. Our records include our written records, records of transactions made and/or processed using the Services, and tape recordings.
You represent and warrant to Northwest FCS as follows: (i) that all necessary corporate or other action required to authorize you to enter into this Agreement has been taken; (ii) that any individual acting on your behalf has full authority to enter into and agree to this Agreement on your behalf; and (iii) this Agreement does not contravene your organizational documents or any agreement to which you are a party or by which you are otherwise bound.
14. Proprietary Rights
Northwest FCS and/or its Third Party Service Providers and other licensors or suppliers are the owners of all intellectual property rights and other proprietary rights applicable to the Services. You agree that the Services may display or contain trademarks, data, text, information, programs and materials (collectively called “Information”) protected by copyright, trademark and other forms of intellectual property protection under the laws of the United States and international treaties. You may not copy, use or republish in any form any Information found on the Services without the prior written consent of Northwest FCS, which Northwest FCS may refuse or withhold for any reason or no reason in its sole and absolute discretion. You agree not to assert any claim of ownership over the Information, including any software or data, based on your use of the Services.
THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY PRODUCTS AND SERVICES OFFERED BY THIRD PARTY SERVICE PROVIDERS, AND ANY INFORMATION, SYSTEMS, WEBSITES OR SOFTWARE USED BY NORTHWEST FCS IN ORDER TO PROVIDE THE SERVICES, ARE PROVIDED “AS IS”
AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. NORTHWEST FCS DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL SUCH REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, TITLE, VALIDITY, OR NON-INFRINGEMENT.
IN PARTICULAR, NORTHWEST FCS DOES NOT REPRESENT OR WARRANT THAT: (i) THE SERVICES OR ANY INFORMATION MADE AVAILABLE VIA THE SERVICES WILL BE ACCURATE, ERROR-FREE, COMPLETE OR TIMELY; OR (ii) THE SERVICES WILL BE FREE FROM FAULTS OR INTERRUPTIONS AVAILABILITY. NEITHER NORTHWEST FCS NOR ANY OF ITS THIRD PARTY SERVICE PROVIDERS ASSUMES ANY LIABILITY OR RESPONSIBILITY TO YOU OR TO ANY THIRD PARTY FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, INFORMATION, DATA OR MATERIALS MADE AVAILABLE VIA THE SERVICES, AND EACH OF THEM SPECIFICALLY DISCLAIMS ANY AND ALL DUTIES TO UPDATE OR CORRECT ANY SUCH ERRORS OR OMISSIONS.
16. Limitations of Liability
YOU AGREE THAT NEITHER NORTHWEST FCS NOR ANY OF ITS THIRD PARTY SERVICE PROVIDERS WILL BE RESPONSIBLE TO YOU OR TO ANY THIRD PARTY FOR ANY LIABILITY, CLAIM, LOSS, EXPENSE, COST, OR DAMAGE, INCLUDING PROPERTY DAMAGE, IN ANY WAY ARISING FROM OR RELATING TO THE USE OF THE SERVICES, REGARDLESS OF CAUSE. NEITHER NORTHWEST FCS NOR ANY OF ITS THIRD PARTY SERVICE PROVIDERS WILL BE RESPONSIBLE FOR ACCESS FAILURES OR ERRORS DUE TO ANY CIRCUMSTANCES BEYOND THEIR RESPECTIVE CONTROL.
IN NO EVENT WILL NORTHWEST FCS NOR ANY OF ITS THIRD PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR ECONOMIC DAMAGES, OR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, FOR LOST DATA, LOST BUSINESS OPPORTUNITIES, LOST PROFITS, LOST SAVINGS, OR RESERVES ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES, OR ANY COMPUTER VIRUS OR SYSTEM, NETWORK OR INTERNET FAILURE, REGARDLESS OF WHETHER NORTHWEST FCS OR ANY OF ITS THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER NORTHWEST FCS NOR ANY OF ITS THIRD PARTY SERVICE PROVIDERS SHALL BE LIABLE FOR DAMAGES, UNDER ANY THEORY OF LIABILITY WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES, OR ANY INFORMATION OR CONTENT PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES, OR THE INABILITY TO USE THE SERVICES AND/OR ANY INFORMATION OR CONTENT PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, IF FOR ANY REASON NORTHWEST FCS OR ANY OF ITS THIRD PARTY SERVICE PROVIDERS IS FOUND LIABLE FOR ANY DAMAGES IN CONNECTION WITH THE SERVICES, NORTHWEST FCS’S AND/OR THE THIRD PARTY SERVICE PROVIDER’S TOTAL AGGREGATE LIABILITY SHALL BE LIMITED TO THE REASONABLE COST OF TAKING CORRECTIVE ACTION REGARDING THE CIRCUMSTANCE GIVING RISE TO THE LIABILITY BEING CLAIMED. SUCH LIMITATION SHALL BE THE MAXIMUM EXTENT OF NORTHWEST FCS'S AND/OR ANY THIRD PARTY SERVICE PROVIDERS’ LIABILITY, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST NORTHWEST FCS.
FOR PURPOSES OF THIS SECTION 16 ONLY, “NORTHWEST FCS” SHALL MEAN THE ENTITIES DESCRIBED IN SECTION 1 OF THIS AGREEMENT, INCLUDING ALL OF THEIR PAST, PRESENT AND FUTURE DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS AND SUPPLIERS, AND ANY PERSON OR ENTITY INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICES OR ANY INFORMATION OR CONTENT PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES.
17. Changes to this Agreement
Northwest FCS reserves the right to change or modify the terms and conditions of this Agreement at any time. If any such changes or modifications are made, the revised Agreement will be updated and posted on our website, www.northwestfcs.com/onlinebanking. Generally, a change in terms will become effective 30 days after the date notice is posted on the Services. Your continued use of the Services after the effective date will be your agreement to be bound by this Agreement, as amended by the new terms. If Northwest FCS determines, in its sole discretion, that any change is needed immediately, Northwest FCS will post notice that such change becomes effective immediately. You are always free to reject any change in the terms of this Agreement by terminating your use of the Services.
18. Termination of this Agreement
Northwest FCS reserves the right to terminate your access to the Services or any product or service offered through Services, at any time for any reason or no reason, without prior notice to you. In the event Northwest FCS decides to terminate this Agreement, Northwest FCS will use commercially reasonable efforts to notify you of such termination, unless circumstances do not allow for Northwest FCS to provide such notification. Northwest FCS may routinely terminate the Services if you have not used the Services after activation or if the Services have been inactive for a year.
You may terminate this Agreement at any time by providing Northwest FCS written notice and ceasing your use of the Services. Your termination shall be effective when your written notice has been received by Northwest FCS and Northwest FCS has been afforded a reasonable opportunity to act on your notice. Once Northwest FCS acts upon your notice and terminates the Services, no further or pending transactions will be made, including but not limited to any transfers scheduled in advance or any preauthorized recurring transfers.
All notices or other communications required to be made by this Agreement shall be in writing and shall be given to each of the parties at their address or email or at such other address or number as such party may designate to the other in writing. Unless otherwise expressly agreed to by the parties in writing: (i) any notice to you shall be effective when sent or when we make such notice available to you through electronic means; and (ii) any notice to Northwest FCS shall be effective when received and when Northwest FCS has a reasonable opportunity to act on such notice. You agree to notify us promptly of any change in your mailing address, email address or telephone number.
You and Northwest FCS mutually agree that any disputes arising out of related to this Agreement and/or the Services (including all actions and transactions made by or through Services) that are not satisfactorily resolved through good faith negotiations
shall be submitted to final and binding arbitration in the State of Washington, or any other mutually agreed upon location. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association, unless
the parties mutually agree in writing to different rules or procedures. Each party shall bear its own costs in connection the with arbitration, and the parties shall comply promptly with any award or ruling of the arbitrator. The prevailing party
in the arbitration shall have the right to enter, without contest by the other party, an order reflecting the arbitrator's decision in any court of competent jurisdiction.
Except where prohibited, you agree that all disputes, claims and legal proceedings in any way arising out of or relating to the Services or this Agreement shall be resolved individually, without resort to any form of class action. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
21. Electronic Signatures
You consent to the use of electronic records and signatures in connection with the execution of this Agreement and any other agreements relating to the Services. The effectiveness of any such agreements and signatures shall, subject to applicable law, have the same force and effect as manually signed originals and shall be binding on you. This consent is provided in accordance with the Electronic Signatures in Global and National Commerce Act, as amended, and any other applicable law addressing the use of electronic records and signatures.
22. Governing Laws and Jurisdiction
This Agreement shall be governed, construed and enforced, in accordance with the laws of the United States of America, applicable to Northwest FCS, and otherwise by the laws of the State of Washington, without regard to its conflicts of laws principles. You hereby consent to personal jurisdiction in any court within the State of Washington which has jurisdiction over the subject matter of any action arising out of this Agreement, and waive all defenses of lack of personal jurisdiction, improper venue, “forum non conveniens” and the like with respect to such courts. If any of the terms of this Agreement cannot be legally enforced, they will be considered changed to the extent necessary to comply with applicable law.
PART II. ADDENDUM FOR ACH SERVICES
(This is an Addendum to the Agreement)
This Part II describes the additional terms and conditions that apply to electronic funds transfers made through the Services. Unless otherwise indicated below, these additional terms and conditions supplement and are in addition to the general terms and conditions described in Part I above. Although all of the terms and conditions in Part I apply to electronic funds transfers made through the Services, please take particular notice of the following important items found in this Part II:
• Our obligations to you in connection with electronic funds transfers; and
• Your responsibility for unauthorized activity.
Northwest FCS’s Electronic Funds Transfer Program (“EFTP”) allows you to use the Services to transfer funds to and from your Northwest Farm Credit Services PCA or Northwest Farm Credit Services, FLCA loan account(s) or future payment fund (“FPF”) account(s). Access to the EFTP through the Services is subject to the terms and conditions of this EFTP addendum (the “EFTP Addendum”), which is hereby made part of the Agreement. Your transactions through EFTP are further subject to your Electronic Funds Transfer Agreement with us, which is incorporated into this EFTP Addendum by this reference. To the extent there is an inconsistency between this EFTP Addendum and the Electronic Funds Transfer Agreement, this EFTP Addendum governs and controls with respect to any and all transactions ordered through EFTP.
For purposes of this EFTP Addendum, the terms “Northwest FCS,” “we”, “our” and “us” refer to Northwest Farm Credit Services PCA or Northwest Farm Credit Services, FLCA, as applicable, and the terms “you” and “your” refer to you, the Loan Account holder(s) and anyone with the authority to exercise control over the Loan Accounts. “Loan Account(s)” means all or any single Northwest FCS loan account(s) or FPF account(s) that are designated for EFTP access under this EFTP Addendum. The banking institution in which you have your depository checking or savings account is called your depository financial institution, or “DFI.”
Each time you use the EFTP, you confirm your continuing acceptance of this EFTP Addendum and the Agreement. Under this EFTP Addendum, you authorize Northwest FCS, upon your request, to make loan advances from, or to transfer funds to or from, any of your designated Loan Accounts as you may direct through the Services. Pursuant to your instructions, this EFTP Addendum, and the Agreement, we may:
• Advance funds under an approved Loan Account(s) and transfer those funds for deposit into your DFI business checking or savings account; or
• Transfer funds from your DFI business checking or savings account to your Loan Account(s) as you may specify; or
• Transfer funds from your DFI personal or consumer checking or savings account to apply to your consumer mortgage loan.
2. EFTP Requirements
Generally, EFTP transfers are available only between your Loan Accounts used primarily for business purposes, and your bank accounts at DFIs used primarily for business purposes. However, EFTP transfers are also available to transfer funds from a personal,
non-business or consumer DFI bank account to make a payment on your consumer mortgage loan. Except as stated in the immediately preceding sentence, you represent and warrant to us that in using EFTP, your Loan Accounts and DFI bank account are not
personal or consumer accounts.
Your Loan Accounts and the DFI account must be in the same name(s). If you wish to transfer funds from your DFI business checking account (or, if applicable, personal account for consumer mortgage loan) to your Loan Accounts, your DFI must be able to accept debits through electronic funds transfer.
Any advance from your Loan Accounts must be made in accordance with and is subject to all terms of that loan, as described in the applicable loan documents, letters of understanding, or elsewhere. If a loan advance exceeds your lending arrangement or authorized credit limit, and we inadvertently make the transfer, you are still obligated to repay all amounts advanced according to the interest rate and other terms applicable to your Loan Accounts.
Northwest FCS's role under the EFTP is limited to that of giving a payment order, as a sender, to our receiving bank, and then making funds available to be transferred under that payment order. We are not a bank, and we do not directly transfer or receive funds electronically to or from your DFI; as such, we are not able to respond to stop payments and changes in instructions that are initiated according to this EFTP Addendum.
3. Continuing Agreement
Each time you use the EFTP, you agree that:
• All terms of this EFTP Addendum and the Agreement shall apply to every transaction.
• EFTP transfers shall be requested only by persons authorized to do so for the Loan Accounts and DFI accounts to or from which the transfer is made.
• You will establish and follow appropriate security procedures.
• You will follow applicable security procedures that we establish. Subject to any limitations under applicable law or system rules, we shall have full authority to act without question on any transfer request for any Loan Account(s) if the security procedures for that Loan Account have been satisfied.
• Our disbursement is complete, and you are irrevocably obligated to repay a disbursed amount according to the loan documents, when we issue a payment order for the electronic funds transfer specified in your EFTP instructions and the DFI accepts the payment order.
• Once your DFI accepts outgoing transferred funds, your only recourse is with your DFI. You have no right of offset against the loan balance and Northwest FCS shall have no liability of any kind with respect to such transferred funds, even in the event of any error or omission of Northwest FCS under the EFTP.
• You agree to promptly pay any fees or costs, if applicable, incurred in connection with any EFTP transaction you request. Presently, Northwest FCS provides the EFTP for no fee. However, DFIs or intermediaries may charge fees that are your responsibility to pay. If costs are incurred by Northwest FCS or fees are charged for the EFTP, you authorize us to debit such amount from your account or advance such amount from your loan for the payment of such fees or costs.
• We may refuse to process your EFTP request, without incurring any legal liability, if we reasonably and in good faith believe that your loan is delinquent or otherwise in material default, or that the EFTP request violates loan terms, is in excess of loan funds available, appears to be unauthorized by you or fails applicable security procedures, involves funds subject to a hold, dispute or legal process preventing disbursal, violates the risk control program of the Federal Reserve Bank, or violates the terms of this EFTP Addendum.
• We are not liable for loss or damage if a company or person does not accept your checks for any reason, including an error or omission on our part.
• We are excused from not acting, or a delay in acting, on your transfer instructions when our inaction or delay is due to legal constraint, interruption of transmission or communication facilities, equipment failure, war, emergency conditions, disruptions in the Internet or telecommunications systems, or any other circumstances beyond our reasonable control.
• No instructions limiting our acceptance of your EFTP requests shall be binding on us unless we have previously agreed to them in writing.
• We have complete discretion to select the means for transmission of your EFTP request; while we will make commercially reasonable efforts to affect your transaction request, we do not guarantee any particular result or outcome.
• We are not responsible for an incoming electronic funds transfer until your request is completed and payment from your DFI is properly posted to your Loan Account.
• If you detect an error in an EFTP transaction, you will notify us immediately upon your discovery of the error using the procedure and providing the information set forth in Section 7 of Part I of the Agreement (“Account Errors”).
• This EFTP Addendum is part of the Agreement and the terms and conditions of Part I of the Agreement shall apply to all EFTP transactions made through the Services, including but not limited to, the following provisions: Section 7 (“Account Errors”), Section 15 (“Disclaimers”), Section 16 (“Limitations of Liability”), Section 20 (“Disputes”), and Section 22 (“Governing Laws and Jurisdiction”).
4. Initiation and Completion of Transactions
Depending on when your EFTP transaction request is submitted to us (please refer to Section 5 of Part I of the Agreement (“Transaction Posting”)), your EFTP transaction will be initiated either the same day or the next business day. Initiating a transaction means that we request the transfer of funds through the Automated Clearing House (“ACH”) system, or other electronic funds transfer system, according to your instructions. Generally, you may expect that your EFTP transaction will be completed within one to two business days after initiation. A transaction is completed when the funds are actually deposited or withdrawn in the destination account you request. When transferring funds to your DFI, please consult your DFI's funds availability policy to determine when the funds are available for your use.
5. Corrections and Termination
You authorize us to adjust entries to correct errors in EFTP transfers, and you will not hold us liable for fees that result from these adjustments, unless our actions caused the error. If you request that we stop or redirect a funds transfer or amend, alter or change a disbursement instruction, we will use commercially reasonable efforts to accommodate your request, but we will not be liable or responsible for any failure to do so. If we receive an EFTP transfer instruction that exceeds the balance on your specified Loan Account, you authorize us to adjust the excess payment entry with your DFI. We will use commercially reasonable efforts to notify you by telephone or secure messaging if we are unable to execute your transfer request. However, we have no obligation to re-send an EFTP transfer.
Either you or Northwest FCS may terminate this EFTP Addendum at any time, and Northwest FCS reserves the right to terminate the EFTP at any time. Notwithstanding the preceding sentence, such terminations will not affect your obligation to repay all sums advanced prior to termination under the terms of your applicable loan documents. Upon our receipt of notice of your intention to terminate this EFTP Addendum, we are immediately entitled to stop honoring transfers to your Loan Account(s), and to inform the parties with whom we transact on your behalf that you have terminated your rights to make or receive EFTP transfers and that no further EFTP transactions will be accepted on your behalf.
We reserve the right to change the terms of this EFTP Addendum at any time. If any changes are made, the revised EFTP Addendum will be updated and posted on our website, www.northwestfcs.com/onlinebanking. Generally, a change in terms of this EFTP Addendum will become effective 30 days after the date notice of the change is posted. Your continued use of EFTP services after the effective date will be your agreement to be bound by this EFTP Addendum, as amended by the new terms. If Northwest FCS determines, in its sole discretion, that any change is needed immediately, we will post notice that such change becomes effective immediately.
6. Information Required for External Bank Accounts
It is your responsibility to provide us with all of the correct information needed for making EFTP transfers. Please double-check all information for accuracy, especially bank account numbers, since these are the only means used to identify your accounts for EFTP transfers. We have no obligation to determine whether any information you provide to us is correct, even if we may have reason to know or suspect that certain information may not be correct, and we may rely without question on all information you provide us. We are not liable for problems or errors resulting from incorrect information, or discrepancies between the account names and account numbers you provide us. You are responsible for the completeness, truth, accuracy, correctness and suitability of all information provided to carry out your EFTP transfers.
7. Account Statements
All EFTP transfers will appear on your periodic statements provided by Northwest FCS for your Loan Accounts. You must review each account statement promptly for any discrepancies in EFTP transfers. If you think an EFTP error has been made, follow the procedures in Section 7 of Part I of the Agreement (“Account Errors”).
You agree to indemnify, defend and hold Northwest FCS harmless for, from and against any damage, loss or liability of any kind, including without limitation, reasonable attorneys’ fees and court costs, which may result, directly or indirectly, in whole or in part, from the actions taken or services rendered by Northwest FCS under this EFTP Addendum pursuant to your instructions or the information you provide. For purposes of this Section 8 only, “Northwest FCS” shall have the meaning identified above in this EFTP Addendum, but shall also include Farm Credit Services PCA’s or Northwest Farm Credit Services, FLCA’s past, present and future directors, employees, contractors, agents, any of their respective Third Party Service Providers, and any person or entity involved in processing EFTP transactions hereunder.
9. Your Liability
We agree to exercise commercially reasonable care in processing EFTP transactions under this EFTP Addendum. If we fail to use commercially reasonable care in following the transfer instructions that you have given us, we shall be liable only for your loss of use of the funds, interest, and/or your actual proven expenses directly related to your funds transfer request which were caused solely by our negligence in failing to follow your transfer instructions. We will not, under any circumstances, be liable for any special, incidental, indirect, consequential, or punitive damages, whether or not the likelihood of such losses or damages was known to us at the time the services were first engaged or at the time any instruction or transfer request was made to us pursuant to the provisions of this EFTP Addendum.
Subject to the limitations in the preceding paragraph, and except as otherwise provided by applicable law or applicable system rules, you shall be liable for any loss or damages in all cases where:
• We have followed the security procedures applicable to your Loan Account(s);
• You fail to notify us within a reasonable time, not to exceed 60 days, of any discrepancy in your billing statement regarding an EFTP transaction; or
• You or your current or former Authorized Users attempt or commit unauthorized, fraudulent, or dishonest acts.
Your liability includes, but is not limited to, instances where a current or former Authorized Users or anyone else initiates one or more EFTP transactions to your detriment by obtaining access to your transmitting facilities or your security information, regardless of how that access or information was obtained and regardless of whether the obtaining of such access or information is your fault.
10. Time Period in which to Bring Claims
Except as otherwise prohibited by applicable law or applicable system rules, due to the difficulty of accurately reconstructing events that occurred more than a year previous, we must limit the time period for bringing any claim which in any way relates to any EFTP transaction. Therefore, any action in arbitration or other legal action to enforce any right under this EFTP Addendum must be commenced within one year from the date of the occurrence giving rise to the claim or action. After the expiration of one year, we will not be liable for, and you agree to not bring any action based on, any act or omission arising out of or relating in any way to our delivery of services under this EFTP Addendum. If applicable law does not allow this one-year time limit, then claims must be brought within the shortest applicable time period allowed under that law.
11. Cooperation in Loss Recovery
In any claim for damages, whether between the parties to this EFTP Addendum or with any third party, you agree to use your commercially reasonable best efforts to cooperate with Northwest FCS, to the extent permitted by applicable law, in performing loss recovery efforts, sharing information, or in taking any action that Northwest FCS may be obligated to defend or elect to pursue against a third party.
Any authorized EFTP user may individually cancel or stop the services provided under this EFTP Addendum (to the extent permitted herein). Except for emergency situations, any change must be made in writing, and we must receive at least 30 days prior notice of the change. We are not liable for any loss due to transfers made prior to the expiration of this 30-day period. A change in authorized users must be accomplished in writing or in the same manner as your initial authorization. In emergency situations, deletion of an authorized representative may be made by telephone, followed by your immediate written confirmation.
You acknowledge being provided the information in this EFTP Addendum before you authorized us to transfer funds to or from your Loan Accounts through the Services. You acknowledge and agree that you have read, understand and agree to all terms of this EFTP Addendum.
PART III. ADDENDA FOR ADDITIONAL SERVICES
(This is an Addendum to the Agreement)
This Part III describes the additional terms and conditions that apply to your use of any Additional Services, as described in this Part III. Unless otherwise indicated below, these additional terms and conditions supplement and are in addition to the general terms and conditions described in Part I above. Although all of the terms and conditions in Part I apply to your use of the Additional Services, please take particular notice of the following important items found in this Part III:
• Your responsibility regarding the security of your credentials;
• Your responsibility to report suspected unauthorized access or unauthorized activity; and
• Your responsibility for unauthorized activity.
ADDENDUM FOR MOBILE CHECK CAPTURE SERVICE
This Mobile Check Capture Addendum contains the terms and conditions under which we will provide you with access to Northwest FCS’s service for remotely capturing and processing checks (“Mobile Check Capture”). Mobile Check Capture enables you to electronically capture and transmit an image of a Paper Check to Northwest FCS for credit to your Mobile Check Capture Account using a Mobile Device and the Mobile Check Capture Function. Mobile Check Capture may be provided by Northwest FCS’s Third Party Service Providers.
Your use of Mobile Check Capture is optional. If you do enroll in Mobile Check Capture, your use of Mobile Check Capture is subject to the terms and conditions set forth in this Mobile Check Capture Addendum and Part I of the Agreement.
Details regarding the functionality of Mobile Check Capture and certain formatting and other technical requirements that you must follow when using Mobile Check Capture are set forth in the Mobile Check Capture banking application available from Northwest FCS, or Northwest FCS's Third Party Service Provider, and may be updated from time to time.
In addition to the definitions appearing elsewhere in the Agreement, the following capitalized terms shall have the meanings indicated in this Section 1:
“Authorized User” means a person with authority to take action on your behalf with respect to the Mobile Check Capture Function.
“Check 21” means the Check Clearing for the 21st Century Act (U.S. Public law 108-100) or any successor legislation.
”Device Specifications” means the specifications for Mobile Devices made available to you at the point of download and/or installation of the mobile banking application, as it may be updated from time to time.
“Electronic Check” means the electronic image of the front and back of each Paper Check. An “Electronic Check” is deemed to be an “item” for purposes of the Uniform Commercial Code.
“Electronic File(s)” means an electronic file transmitted to Northwest FCS containing an Electronic Check and other information regarding the Paper Check submitted by you, including, but not limited to, the amount of the Paper Check.
“MICR” means magnetic ink character recognition.
“Mobile Check Capture Function” means that portion of the mobile banking application made available for use by your Authorized Users in connection with Mobile Check Capture.
“Mobile Check Capture Account” means such loan or future payment fund designated by Northwest FCS for Mobile Check Capture purposes, in each instance as determined by Northwest FCS from time to time.
“Mobile Device” means a smart phone, tablet or other device that meets the Device Specifications.
“Paper Check” means an item that is in tangible written form.
“Paying Bank” means the bank on which an original Paper Check is drawn, or at or through which the original Paper Check is payable.
“Retention Period” means the period during which you retain the Paper Check after the Electronic Check is transmitted to Northwest FCS.
“Transaction” means a transaction initiated through Mobile Check Capture.
2. Creating Electronic Checks; Processing and Transmittal
Endorsement Requirements. Before capturing an image of a Paper Check, an Authorized User must manually endorse the original Paper Check for Mobile Deposit to Northwest FCS and payee’s signature in the manner specified in the Mobile Check Capture banking application.
Requirements for use of Mobile Check Capture. To create and transmit Electronic Files to Northwest FCS through Mobile Check Capture, an Authorized User must: (i) use a Mobile Device on which the mobile banking application has been installed and the Mobile Check Capture Function activated; and (ii) have Internet connectivity.
Responsibility for Mobile Device and Internet Connectivity. Each Mobile Device is purchased, owned and maintained solely by you. Any warranties related to the Mobile Device are provided by the Mobile Device manufacturer or a third party vendor and are not provided by Northwest FCS or any of its Third Party Service Providers. You are solely responsible for all aspects of the operation, use, and maintenance of the Mobile Device. Similarly, you are solely responsible for troubleshooting Internet connectivity issues with your mobile broadband and/or Internet service providers.
Responsibility for Image Quality. You are solely responsible for the image quality of each Electronic Check transmitted to Northwest FCS through Mobile Check Capture. Northwest FCS does not guarantee image quality even if you use a Mobile Device meeting the Device Specifications.
Authorized Users. You are responsible for: (i) notifying all Authorized Users of the endorsement requirements and your obligations set forth in this Mobile Check Capture Addendum; and (ii) ensuring compliance by each Authorized User with all such requirements, obligations and restrictions.
Content of Electronic File. The Electronic File must include in a form acceptable to Northwest FCS, all data contained on each Paper Check necessary to create a substitute check, including: (i) an accurate and readable image of the front and back of the original Paper Check; (ii) all necessary information from the MICR line of the original Paper Check that would permit a substitute check to be processed on standard check-sorting equipment; and (iii) all other information required for the Electronic Check.
Processing of Electronic Checks. For each Electronic Check eligible for processing, Northwest FCS will either: (i) create a substitute check that Northwest FCS will present directly or indirectly to the Paying Bank; or (ii) present the Electronic Check as an electronic item (as defined by applicable law) directly or indirectly to the Paying Bank.
3. Acceptance by Northwest FCS; Provisional Crediting; Returns
Electronic Checks transmitted to Northwest FCS for credit to a Mobile Check Capture Account through Mobile Check Capture are not deemed to be credited until accepted by Northwest FCS. Northwest FCS has no responsibility for Electronic Files or Electronic Checks unless and until received by Northwest FCS. Electronic Checks that are received and accepted by Northwest FCS prior to the deadline established by Northwest FCS from time to time will be accepted for credit to your Mobile Check Capture Account on the same business day of receipt. Electronic Checks received and accepted by Northwest FCS after the deadline will be accepted for crediting as of the business day following the day of receipt.
Crediting of each Electronic Check received through Mobile Check Capture is provisional, and an Electronic Check may be returned for any reason permitted under this Mobile Check Capture Addendum or other reasons permitted under applicable law, including claims that a substitute check created from the Electronic Check does not meet legal equivalence requirements under applicable law or that the information provided is incomplete or inaccurate. Northwest FCS has no responsibility for the delayed return of any substitute check that includes any message text or other information added by you in the depositary bank endorsement area on the Electronic Check. If a financial institution returns a transaction using an Electronic Check or substitute check to Northwest FCS for any reason, Northwest FCS may charge Mobile Check Capture Account(s) for the amount of the return and return the substitute check to you or re-present the Electronic Check or substitute check to the financial institution for payment. Returns will be made by Northwest FCS using the Electronic Check or substitute check as the charge-back item.
4. Exception Items
Presentation of Electronic Checks. You will transmit an Electronic Check to Northwest FCS only if the Paper Check is eligible for credit to your Mobile Check Capture Account and as Electronic Check under this Mobile Check Capture Addendum.
Rejection of Electronic Checks. Northwest FCS may, without liability to you, reject Electronic Checks Northwest FCS reasonably determines are ineligible for Mobile Check Capture (each an “Exception Item”). An Exception Item includes, without limitation, an Electronic Check that: (i) is illegible or contains MICR data that is not machine-readable; (ii) was previously processed as an Electronic Check; (iii) is drawn on a financial institution located outside the United States and is not payable at or through a financial institution located within the United States; (iv) did not originate from a Paper Check; (v) relates to a Paper Check that was not originally payable solely to you; (vi) relates to a Paper Check that was not manually endorsed by you prior to the capture of that Electronic Check in accordance with the Endorsement Requirements section of this Mobile Check Capture Addendum; (vii) does not meet image quality standards established by Northwest FCS from time to time; or (viii) is identified as ineligible for Mobile Check Capture.
Notice of Exception Items. Northwest FCS will notify you of each Exception Item through the Services, or any other system designated for Mobile Check Capture or other communication channel at Northwest FCS's discretion.
Presentation of Exception Items. You may present an Exception Item for credit to your Mobile Check Capture Account only in a manner acceptable to Northwest FCS or as otherwise directed by Northwest FCS.
Failure to Identify Exception Item. Even if Northwest FCS does not identify an Exception Item when Northwest FCS processes the Electronic File that includes the Exception Item, the substitute check or purported substitute check Northwest FCS creates from the Electronic Check may be returned to Northwest FCS because, among other reasons, the Paying Bank determines it is illegible or missing an image or for any other reason. Northwest FCS's failure to identify an Exception Item will not limit your obligations to Northwest FCS under this Mobile Check Capture Addendum.
5. Customer's Covenants; Representations and Warranties
The covenants, representations, and warranties set forth in this Mobile Check Capture Addendum survive its termination.
You covenant to:
• use Mobile Check Capture only for Paper Checks originally payable solely to you;
• transmit to Northwest FCS only Electronic Checks representing Paper Checks that have been manually endorsed by you in the manner set forth in the Endorsement Requirements section of this Mobile Check Capture Addendum;
• transmit to Northwest FCS only Electronic Checks suitable for processing, including legible Electronic Checks containing machine-readable MICR data drawn on financial institutions located in the United States and in United States Dollars;
• not transmit to Northwest FCS any Electronic Check that duplicates an Electronic Check previously transmitted to Northwest FCS, a Third Party Service Provider, or any other financial institution for processing or that did not originate as a Paper Check;
• maintain control over, and sole responsibility for, secure retention and destruction of each original Paper Check for which you have created an Electronic Check (including the security and integrity of nonpublic personal information appearing on the original Paper Check throughout the transmission flow and while in storage) and properly secure all equipment and software you use in connection with Mobile Check Capture at all times, including the Mobile Check Capture Function;
• not renegotiate any original Paper Check or any image of a Paper Check with respect to which you have transmitted an Electronic Check to Northwest FCS or any other party, unless Northwest FCS has notified you that the Electronic Check is an Exception Item;
• not electronically transmit to Northwest FCS or any other party any item representing the funds represented by the original Paper Check;
• establish policies and procedures to ensure that original Paper Checks cannot be renegotiated;
• establish policies and procedures to detect fraudulent Paper Checks and to ensure that a Paper Check is suitable, legally and practically, for conversion to a substitute check; and
• establish a policy for retention of the original Paper Checks for a Retention Period that is a minimum of fourteen (14) calendar days from the date the Electronic Check is transmitted to Northwest FCS. During the Retention Period, you will, upon Northwest FCS's request, provide the original Paper Check or an imaged copy of the original Paper Check to Northwest FCS immediately upon request. You may retain original Paper Checks for a longer period; however, such Paper Checks must be retained in a secure manner and you assume all liability for the loss or theft of the original Paper Checks and for the presentment of such Paper Checks in any manner to Northwest FCS or any other financial institution. If you receive notice from Northwest FCS or any third party of any dispute with respect to an Electronic Check or the underlying Paper Check prior to the time the original Paper Check is destroyed, you will retain the original Paper Check until Northwest FCS provides you notice that such dispute has been fully resolved. You will promptly provide any original Paper Check in your possession to Northwest FCS at Northwest FCS's request. You will, at your expense, destroy the original Paper Checks at the expiration of the Retention Period through a commercially reasonable method of destruction designed to render the Paper Check and information contained on the Paper Check unusable and unreadable.
Representations and Warranties. Each time an Electronic Check is transmitted to Northwest FCS, in addition to your representations and warranties made elsewhere in the Agreement, you make: (i) all of the representations and warranties under Check 21 and applicable laws that any person, acting as a “reconverting bank” under Check 21, makes under applicable laws; (ii) the same representations and warranties made by any person in forwarding the Electronic Check under applicable laws; and (iii) all other encoding, transfer, presentment, and other warranties made under applicable laws as if the Electronic Check were a Paper Check. You further represent and warrant to Northwest FCS that:
• the preparation and presentment of the Electronic Check complies with this Mobile Check Capture Addendum;
• the Electronic Check contains all information required to be accurately captured pursuant to this Mobile Check Capture Addendum and such information represents all information on the front and back of the Paper Check and specifically includes all MICR line information needed to create a substitute check or draft;
• the original Paper Check was not altered or modified, except for the addition of any necessary endorsement;
• the original Paper Check is not a “remotely created check” as that term is defined in the Federal Reserve Board’s Regulation CC, 12 CFR part 229;
• neither the original Paper Check nor any paper or electronic representation of the original Paper Check has been previously presented to Northwest FCS for credit to any Mobile Check Capture Account or to any other financial institution for deposit, or otherwise negotiated to any party; and
• You will permanently remove the original Paper Check from the forward collection process and will destroy the original Paper Check after the Retention Period.
In addition to your other indemnification obligations of under the Agreement, you will indemnify, defend and hold Northwest FCS harmless for, from and against any and all claims and losses relating in any way to Northwest FCS or its Third Party Service Providers acting as a “reconverting bank” under Check 21 through the creation of “substitute checks” or purported substitute checks using an Electronic Check, an Exception Item, or an Electronic File.
7. Transaction Limits
Northwest FCS may establish limits on your Transactions through Mobile Check Capture. You acknowledge that such Transaction limits, if any, are solely for the protection of Northwest FCS. Northwest FCS may reject or suspend processing of one or more Electronic Check(s) if any Transaction exceeds your Transaction limits. You will promptly notify Northwest FCS if you anticipate a significant increase in the dollar amount of Transactions to be processed through Mobile Check Capture. Northwest FCS may change the amount of your Transaction limits from time to time.
8. Financial Information and Inspection
Upon request by Northwest FCS, you will permit Northwest FCS to audit or review your compliance with this Mobile Check Capture Addendum. You acknowledge that Northwest FCS may mandate specific internal controls for your location(s) and/or your Authorized Users and Mobile Devices and you will comply with any such mandate. In addition, you will allow Northwest FCS to review available reports of independent audits performed at your location and of your equipment, including Mobile Devices, related to information technology, Mobile Check Capture and any associated operational processes. Upon request by Northwest FCS, you will promptly and accurately complete a self-assessment of your operations, management, staff, systems, internal controls, use of Mobile Devices, training and risk management practices that would otherwise be reviewed by Northwest FCS in an audit of you.
9. Hours of Access
The Mobile Check Capture Function will generally be available twenty-four (24) hours per day, seven (7) days per week. However, at certain times, some or all of the Mobile Check Capture Function may not be available due to system maintenance or failure, or for other reasons outside of Northwest FCS’s and/or its Third Party Service Providers’ control. Northwest FCS is not responsible for your inability to access the Mobile Check Capture Function for any reason. Certain information may be delayed before it is made available on the Mobile Check Capture Function.
10. System Availability
During any period of time in which the Mobile Check Capture is unavailable, you may mail Paper Checks to the local Northwest FCS office from time to time for credit to your Mobile Check Capture Account or take such other actions as directed by Northwest FCS.
We reserve the right to change the terms of this Mobile Check Capture Addendum at any time. If any changes are made, the revised Mobile Check Capture Addendum will be updated and posted on our online banking website, www.northwestfcs.com/onlinebanking. Generally, a change in terms of this Mobile Check Capture Addendum will become effective 30 days after the date notice of the change is posted. Your continued use of Mobile Check Capture services after the effective date will be your agreement to be bound by this Mobile Check Capture Addendum, as amended by the new terms. If Northwest FCS determines, in its sole discretion, that any change is needed immediately, we will post notice that such change becomes effective immediately.
Online Banking Agreement dated March 1, 2021