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Mobile Deposit Service Agreement
Smart Financial Credit Union

Mobile Deposit Service Agreement for Smart Financial Credit Union Mobile Application the "Agreement") is made as of the date you first elect to use the Smart Financial Credit Union Mobile Deposit Service ("Mobile Deposit Service ") to supplement the deposits account agreement(s) (the "Deposits Agreement"), the mobile app general terms and conditions ("Mobile App User Agreement") and other agreements, between Smart Financial Credit Union (the "Credit Union") and you ("Member", "you" or "your"). The Mobile Deposit Services are only for use with respect to your accounts used primarily for personal, family or household purposes and may not be used for any business purposes. Capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them in the Mobile Deposit Agreement or the Rules (as defined below).

Definitions

The meanings of the defined terms set forth below are also applicable to this Agreement and any Documentation (defined herein). If any capitalized term defined below is used in Federal Reserve Board’s Regulation CC (Vol. 12 of the U.S. Code of Federal Regulations, part 229) promulgated to comply with Check 21, as it may be amended, substituted for, or recoded from time to time ("Reg. CC"), then such terms generally shall have the meaning assigned to it in Reg. CC. To the extent that any of the defined terms in this Agreement or in the Documentation use a term not defined herein but otherwise defined in Reg. CC, then such definition also incorporates the meaning assigned to the applicable term as set forth in Reg. CC. To the extent that any term used by the Credit Union in providing you the Mobile Deposit Service is a term that is not used or defined in this Agreement or in the Documentation, you and the Credit Union agree to such terms commonly used with regard to Mobile Deposit Service services shall have the meaning as defined in Reg. CC if such terms are so defined.

All other capitalized terms used that are not otherwise defined in this Agreement or in the Documentation shall have the meaning given to such term in Article 3 or Article 4 of the Uniform Commercial Code (as amended from time to time ("UCC")) effective in Texas as adopted in the Texas Business and Commerce Code. In addition, you acknowledge that the Electronic Image of the Original Check submitted to us shall be deemed an “item” within the meaning of Article 4 of the Uniform Commercial Code as adopted in the Texas Business and Commerce Code.

(a) "Check 21" means Federal Reserve Board Reg. CC, Subpart D, promulgated to implement the provisions of the Check Clearing for the 21st Century Act.

(b) "CTA" means the Check Clearing for the 21st Century Act, which became effective October 28, 2004.

(c) "Documentation" means the online help files or written instructions and materials made available or supplied by the Credit Union that provide the description, methods of operation, and required procedures to engage in Mobile Deposit Service activities.

(d) "Electronic Image" means a digital or electronic representation of an Original Check that is a Sufficient Copy and meets all of the Standards and is submitted by you to Credit Union for processing and collection as a Substitute Check.

(e) "Electronic Deposits" means a file that contains information regarding each Electronic Image(s) to be submitted by you to the Credit Union that meets all of the requirements imposed from time to time by the Credit Union as set forth in this Agreement and the Documentation.

(f) "Magnetic Ink Character Recognition Line" or "MICR Line" means the numbers, which may include the routing number, account number, check number, check amount and other information, that are printed near the bottom of a check in magnetic ink in accordance with the Standards.

(g) "Original Check" means the first paper check issued to or endorsed in your favor with respect to a particular payment transaction.

(h) "Processing Software" means the software for any mobile device hosted by the Credit Union that administers the Mobile Deposit Service and captures Electronic Images for deposits.

(i) "Reconverting " means: (1) the financial institution that creates a Substitute Check; or (2) with respect to a Substitute Check that was created by a person that is not a the Credit Union, the first financial institution that transfers, presents, or returns that Substitute Check or, in lieu thereof, the first paper or electronic representation of that Substitute Check.

(j) "Standards" means the applicable standards set forth in CTA, Check 21 or as promulgated by the American National Standards Institute ("ANSI") for image quality and transmission protocols, including but not limited to, ANS X9.13, ANS 9.37 and ANS X9.100-140 (or any amendment or substitute for such standards as may be promulgated from time to time), whether such standard pertains to the MICR Line, the image quality of the Original Check, the placement of an image of the Original Check on the Substitute Check, or the manual or electronic transfer of a Sufficient Image Copy or other electronic representation of an Original Check or a Substitute Check, unless the Federal Reserve Board, by rule or order determines that a different standard is to apply.

(k) "Substitute Check" means a paper reproduction of an Original Check that: (1) contains an image of the front and back of the Original Check; (2) bears a MICR line that, except as provided under the applicable Standard, contains all the information appearing on the MICR line of the Original Check at the time that the Original Check was issued and any additional information that was encoded on the Original Check’s MICR line before an image of the Original Check was captured; (3) conforms in paper stock, dimension, and otherwise with ANS X9.100-140 (unless the Federal Reserve Board by rule or order determines that a different standard applies); and (4) is suitable for automated processing in the same manner as the Original Check.

(l) "Sufficient Copy" and "Copy" means: (1) A sufficient copy is a copy of an Original Check that accurately represents all of the information on the front and back of the Original Check as of the time the Original Check was Truncated or is otherwise sufficient to determine whether or not a claim is valid. (2) A copy of an Original Check means any paper reproduction of an Original Check, including a paper printout of an electronic image of the Original Check, a photocopy of the Original Check, or a Substitute Check.

(m) "Sufficient Image Copy" means an Electronic Image of an Original Check or Substitute Check that is capable of printing a Sufficient Copy of such Original Check or Substitute Check.

(n) "Truncate" means to remove an Original Check from the forward collection or return process and send to a recipient, in lieu of such Original Check, a Substitute Check or, by agreement, information relating to the Original Check (including data taken from the MICR line of the Original Check or an electronic image of the Original Check), whether with or without the subsequent delivery of the Original Check.

(o) “Notification”, “Notify” means through the electronic means chosen by you at enrollment. Alerts via SMS (text), email, and/or push notifications are available options for Mobile services

Services

Subject to the terms and conditions herein, Member subscribes to, and the Credit Union agrees to provide, the Mobile Deposit Service to be used by Member in accordance and in compliance with and the Check Clearing for the 21st Century Act ("Check 21"). The Mobile Deposit Service enables you to create and submit electronic check images (also known as Image Replacement Documents ("IRD") to the Credit Union, for deposits to your personal deposit account(s) with the Credit Union that are used primarily for personal, family or household purposes, in lieu of the Original Checks (as defined herein) from which such check images were obtained. The dollar amount of each Mobile Deposit shall not exceed $10,000.00 and $10,000.00 daily limits to be set as determined by the Credit Union in its sole discretion.

Credit Union retains the ability to either approve or deny your use of Mobile Deposit Services at the Credit Union’s sole and absolute discretion. If the Credit Union approves you to use such Services, then by using such Services, you agree to the provisions set forth in this Agreement, you agree to pay any fees the Credit Union may charge in conjunction with such Services (as set forth in the Credit Union’s Fee Schedule) and you understand and agree that the meanings of the defined terms set forth in this Agreement and any Documentation (as defined below) made available to you by us for use with the Mobile Deposit Service.

For any questions or to report any problems with the Mobile Deposit product please call Smart Financial Credit Union at 1-800-392-5084, or write to us at this address: Smart Financial Credit Union, PO Box 920719, Houston, Texas 7792-0719, Attention: Mobile Banking.

In the event of any unforeseen issues or failure of this product for deposits, your deposits can be made in person at any Credit Union branch or by any one of our ATMs located at the branch location.

Processing Equipment and Processing Software

You must obtain the Mobile Deposit Services within the Credit Union’s Mobile App. You must comply with the mobile device hardware, software, and other requirements, as well as applicable Security Procedures, as set forth in this Agreement and in any Documentation Mobile Deposit Service Terms & Conditions or any supplemental information and/or instructions provided by the Credit Union. You understand that failure to comply with such mobile device hardware, software and other requirements regarding the Mobile Deposit Services may result in you being unable to generate a Sufficient Image Copy in order to create an Electronic Image to complete a Mobile Deposit. The Credit Union reserves the right as encryption technology develops to impose further reasonable requirements to maintain the appropriate level of security for Mobile Deposit Services and transactions contemplated hereunder, and you agree to abide by such requirements. Furthermore, you understand and acknowledge that if you do not implement and follow your own commercially reasonable hardware, software, physical access and physical storage security procedures regarding any of the data owned by you, which includes such data containing your sensitive personally identifiable information ("PII") of any individual, the security of your Mobile Deposit may be compromised. You understand, acknowledge and agree that installation, maintenance and operation of your mobile device (hardware and software) and related security procedures that you adopt and follow, including, but not limited to, data security protection, firewalls and anti-virus software, is your sole responsibility, and that you are solely responsible for securing, encrypting, protecting and otherwise safeguarding the data owned by you.

In addition to other limitations on the Credit Union’s liability contained elsewhere in this Agreement, you understand, acknowledge and agree that the Credit Union is not responsible for any loss or damages resulting from any errors or failures of your mobile device or data processing systems, including, but not limited to any mobile device virus or malware attack (such as a keystroke logging program or similar malware), any attack by a person attempting or actually gaining unauthorized access to the data owned by you, or any mobile device network problems that may be associated with your access and use of our Mobile Deposit Services.

For avoidance of doubt, you understand, acknowledge and agree that all data provided by you to the Credit Union (including, but not limited to, Electronic Images or Substitute Checks retained on any processing equipment, processing software, or any other processing equipment or software (including your mobile device used by you in conjunction with Mobile Deposit Services), and all data produced, compiled or otherwise provided by Credit Union to you, in any form or format, is your sole and exclusive property and copies thereof shall be provided to you at your request from time to time and at any time. Once such data owned by you is delivered by the Credit Union to you, retrieved by you from the Credit Union, or otherwise created as a byproduct of a transaction between you and the Credit Union and retained by you, such data owned by you is solely within your possession and control.

The software used to provide the Mobile Deposit Services is governed by the Mobile Service User Agreement.

Prohibited Transactions

If you have met, in our sole discretion, the conditions we have established for use of Mobile Deposit Services to make deposits via Electronic Images, we will provide for acceptance for deposits to your Account(s) the Electronic Images of Original Checks for collection as allowed under this Agreement and the Documentation.

You agree that you will not scan and deposit any of the following types of checks or other items which shall be considered ineligible items:

Such Electronic Images shall be deemed received by us for deposits based upon time of receipt as well as successful receipt of Electronic Images that are complete, usable, and adhere to the Standards. If any Electronic Image is not complete, is not usable, or does not adhere to the Standards, the Electronic Image may not be processed by us, in which event your deposits will be adjusted and notification provided. You understand we will process only your Electronic Images that comply with the Standards and are Sufficient Image Copies, and we will use commercially reasonable efforts to present these Sufficient Image Copies for collection under the Check 21 framework. The daily cut-off time for Mobile Deposits is 6:00 p.m. CST. Such daily cut-off times may be adjusted by the Credit Union in its sole discretion from time to time upon notice to you. The availability of funds for deposits via Mobile Deposit Service is set forth in the Funds Availability section of this Agreement.

You agree that you will submit to us for deposits to your account only Electronic Images that are Sufficient Image Copies of Original Checks for deposits via Mobile Deposit Services. No Electronic Image submitted by you to us represents an Original Check that has already been collected. You further agree that you will retain each Original Check that is Truncated through any Mobile Deposit Services activity for a reasonable period of time, but in no event fewer than fourteen (14) Business Days from the date of deposits Mobile Deposit Service Terms & Conditions or such longer time as we may request from time to time with respect to any specific Original Check. You understand that in all cases you are solely responsible for safeguarding all items you retain, during the reasonable period of time described above, as required or permitted by Mobile Deposit Services from destruction, alteration or theft.

You understand and acknowledge that we are relying on the truth and the Credit Union of all Electronic Images submitted for deposits via Mobile Deposits Services by you to us, and you warrant that such Electronic Images accurately reflect Original Checks that are, or at the time of the creation of the Substitute Checks, were, in your possession. You also understand that issues regarding returned item collection, returned deposits, and other issues regarding deposits of Items not specifically addressed in this Agreement shall be governed by the terms and conditions of the Deposit Agreement.

Endorsements and Procedures – Electronic Images shall be deemed received by Smart Financial Credit Union for deposits based upon time of receipt as well as successful receipt of Electronic Images that are complete, usable, and adhere to the standards discussed herein. If any Electronic Image is not complete, is not usable, or does not adhere to the standards, the Electronic Image may not be processed by Smart Financial Credit Union, in which even your deposits will be adjusted and notification provided. You understand we will process only your Electronic Images that comply with the standards discussed above and are Sufficient Image Copies, and we will use commercially reasonable efforts to present these Sufficient Image Copies for collection under the Check21 framework. The daily cut-off time for Mobile Deposits is 6:00 p.m. CST. Such daily cut-off times may be adjusted by Smart Financial Credit Union in its sole discretion from time to time upon notice to you. If the deposits are not received by the end-of-day cutoff time, Smart Financial Credit Union will not guarantee that deposits will be processed that day. Smart Financial Credit Union may accept these deposits and they will be processed on Smart Financial Credit Union’s next Business Day. Smart Financial Credit Union shall give provisional credit for deposits subject to revocation of credit for deposits as provided in Regulation CC and the Uniform Commercial Code. The availability of funds for deposits via the Services is set forth in this Agreement. All checks submitted through the Services must be properly endorsed by you prior to transmittal. Unless otherwise instructed by the Smart Financial Credit Union, you agree that all checks deposited through this Service must (a) be signed by all required payees, and (b) state that they are “Deposit only – Mobile Deposits Service via Smart Financial Smart Financial Credit Union”. You agree to follow any and all other procedures and instructions for use of this Service as the Smart Financial Credit Union may establish from time to time. Any loss that Smart Financial Credit Union incurs from a delay or processing error resulting from an irregular endorsement or other markings by you will be your responsibility. Smart Financial Credit Union has no responsibility or liability for any fees incurred due to the rejection of transmitted items for missing/incomplete endorsements.

Receipt of Items – In general, all images processed for deposits through the Services will be treated as “deposits” under your current Deposits Account Terms and Conditions with Smart Financial Credit Union. Any confirmation from Smart Financial Credit Union that we have received the image does not mean that the image contains no errors. Smart Financial Credit Union is not responsible for any image it does not receive. The Smart Financial Credit Union reserves the right to reject any item transmitted through this Service, at the Smart Financial Credit Union’s discretion and without liability. The Smart Financial Credit Union is not responsible for items the Smart Financial Credit Union does not receive or for images that are dropped during transmission. The Smart Financial Credit Union further reserves the right to charge back to Member’s account at any time any item that the Smart Financial Credit Union subsequently determine was not an eligible item. You agree that the Smart Financial Credit Union is not liable for any loss, costs, or fees you may incur as a result of a chargeback of an ineligible item. Following receipt, Smart Financial Credit Union may process the image by preparing a “substitute check” or clearing the item as an image.

Availability of Funds – You agree that items transmitted using this Service is not subject to the funds availability requirements of Federal Reserve Board Regulation CC because this is considered an “electronic” deposits. Generally, and except as otherwise provided herein, items transmitted using this Service will be available subject to the Smart Financial Credit Union’s approval. If you make a deposit using this Service before 6:00p.m.CST, on a business day that the Smart Financial Credit Union is open, the Smart Financial Credit Union will consider that day to be the day of your Deposits. However, if you make a deposits using this Service after 6:00p.m.CST, or on a day that we are not open, the Smart Financial Credit Union will consider that deposits to have been made on the next business day that the Smart Financial Credit Union is open. You acknowledge that all credits given by the Smart Financial Credit Union for an item are provisional, subject to verification and final settlement. The Smart Financial Credit Union shall have no liability for the return or refusal of any item.

The Smart Financial Credit Union may also delay in making funds available due to the following circumstances:

Smart Financial Credit Union exercises its rights to investigate any unusual or suspicious items as determined by the Smart Financial Credit Union’s sole discretion.

The availability of Funds you deposit via Mobile Deposit Services may also be delayed for a variety of additional reasons as determined at the Credit Union’s sole discretion, including, but not limited to:

We will generally notify you if we delay your ability to withdraw funds for any of these or other reasons, and we will attempt to tell you when such funds will be available. If you will need the funds from a deposits via Mobile Deposit Services, you should contact us to inquire when the funds will be available.

Smart Financial Credit Union will notify you if there is any type of delay in your ability to withdraw funds for any of these or other reasons, and the Smart Financial Credit Union will attempt to notify you when the funds will be available.

Retention and Security of Original Checks – Upon your receipt of a confirmation from Smart Financial Credit Union that we received an image that you have transmitted, you agree to retain the check in safekeeping in a secure environment for at least sixty (60) calendar days from the date of the image transmission. After sixty (60) days, you agree to destroy the check that you transmitted as an image, mark it “VOID” or otherwise render it incapable of further transmission, deposits, or presentment. Image quality is reviewed by Smart Financial Credit Union after submission; however, if the receiving financial institution does not accept the image, you may be required to present the original check for payment. During the time the retained check is available, you agree to promptly provide it to the Smart Financial Credit Union upon request. Smart Financial Credit Union assumes no liability for losses you may incur if the receiving financial institution does not accept your image and you are unable or unwilling to present the original check for payment. You agree that you will never re-present the original check. You understand that you are responsible if anyone is asked to make a payment based on an original check that has already been paid.

Deposit Limits –Smart Financial Credit Union may establish limits on the dollar amount and/or number of items or deposits from time to time that you make via the Services. If you attempt to initiate a deposits in excess of these limits, Smart Financial Credit Union may reject your deposits. If Smart Financial Credit Union permits you to make a deposits in excess of these limits, such deposits will still be subject to the terms of this Agreement, and Smart Financial Credit Union will not be obligated to allow such a deposits at other times. The current dollar daily limit is $10,000.00 per item and $10,000.00 total deposits per business day. There is currently no daily or monthly statement cycle limit on the number of items, as long as the respective dollar limits are not exceeded. Daily and monthly deposits limits may vary for users of other services provided by Smart Financial Credit Union.

Presentment –The manner in which the items are cleared, presented for payment, and collected shall be in the Smart Financial Credit Unions sole discretion, subject to the Deposits Terms and Conditions or other agreements governing your account.

Errors – You agree to notify Smart Financial Credit Union of any suspected errors regarding items deposited through this Service right away, and in no event later than sixty (60) days after the applicable Smart Financial Credit Union account statement is sent. Unless you notify Smart Financial Credit Union within sixty (60) days, such statement regarding all deposits made through this Service shall be deemed correct, and you are prohibited from bringing a claim against Smart Financial Credit Union for such alleged error.

Errors in Transmission – By using this Service you accept the risk that an item may be intercepted or misdirected during transmission. Smart Financial Credit Union bears no liability to you or others for any such interception or misdirected items or information disclosed through such errors.

Returned Deposits – Any credit to your account for checks deposited using the Services is provisional. If original checks deposited through Services are dishonored, rejected or otherwise returned unpaid by the drawee financial institution, or any rejected or returned by a clearing agent or collecting financial institution, for any reason, including, but not limited to, issues relating to the quality of the image, you agree that an original check will not be returned to you, but that Smart Financial Credit Union may charge back the amount of the original check and provide you with an image of the original check, a paper reproduction of the original check or a substitute check. You will reimburse Smart Financial Credit Union for all loss, cost damage or expenses caused by or relating to the processing of the returned item. Without Smart Financial Credit Union’s approval, you shall not attempt to deposit or otherwise negotiate an original check if it has been charged back to you.

Image Quality – Each image must provide all information on the front and back of the original check at the time presented to you by the drawer, including, but not limited to, information about the drawer and the paying financial institution is preprinted on the original check, MICR information, signature(s), any required identification written on the front of the original check and any endorsements applied to Smart Financial Credit Union of the original check. The image of an item transmitted to Smart Financial Credit Union using this Service must be legible, as determined in the sole discretion of the Smart Financial Credit Union. Without limiting the foregoing, the image quality of the items must comply with the requirements established under Reg. CC and otherwise from time to time by Smart Financial Credit Union, the Board of Governors of the Federal Reserve Board, or any other regulatory agency, clearinghouse or association. Smart Financial Credit Union accepts no liability and makes no guarantee that its image standards will be acceptable to other financial institutions when presented for payment.

Member Representations and Warranties – Member represents and warrants to Smart Financial Credit Union; (a) Member has the authority to enter into this agreement and perform its obligations hereunder and all information supplied by Member to Smart Financial Credit Union is accurate and true; (b) Member will provide all reasonable assistance to Smart Financial Credit Union in providing the Service set forth herein; (c) Member and any authorized users will only use this Service for lawful purposes and in compliance with all applicable rules and regulations and with Smart Financial Credit Union’s reasonable instructions, rules, policies, specifications, terms and conditions, and operating procedures and will not violate any law of any country or the intellectual property rights of any third party; (d) Member has only transmitted acceptable items for deposit and has handled the original items following transmission to Smart Financial Credit Union as agreed to or directed by Smart Financial Credit Union and in accordance with applicable law; (e ) Member is a person authorized to enforce each item or is authorized to obtain payment of each item on behalf of a person entitled to enforce an item; (f) the items have not been altered; (g) each item bears all applicable endorsements in a restricted format as directed by the Smart Financial Credit Union; (h) all the warranties set forth in and subject to the terms of 4-507 of the Uniform Commercial Code as adopted in the state of Texas, and as may be modified from time to time, as well as any other applicable section thereof; (i) the electronic image portion of each item accurately and legibly represents all of the information on the front and back of the original check as of the time the original check was truncated, the information portion of the item contains a record of all applicable micr-line information required for a substitute check, and the item conforms to the technical standards for an electronic item as specified by the Smart Financial Credit Union from time to time; (j) Member will submit only one accurate and clear image of the front and back of each item to Smart Financial Credit Union only one time; (k) Member will not deposit the original item and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the item (either the original item, or a paper, or electronic representation of the original item) such that the person will be asked to make payment based on an item it has already paid; (l) the amount of an item, and such other information contained in such item which is accurate and complete. Member agrees that these representations and warranties shall be true and correct as of the date of each item and that the submission of each item to Smart Financial Credit Union for processing shall be an acknowledgement of each such representation and warranty as of that date.

Rejection of Mobile Deposits

The Credit Union may reject any Mobile Deposit which does not comply with the requirements in this Agreement. The Credit Union shall notify Member electronic transmission, including text alerts as request by you, such rejection no later than the Business Day such deposits would otherwise have been transmitted by the Credit Union to the Federal Reserve.

Furthermore, your deposits of a check image via Mobile Deposits Services is subject to the Credit Union’s verification and final inspection process. The Credit Union is under no obligation to inspect or verify an Electronic Image to determine accuracy, legibility or quality of such image or MICR line information associated with such image, or for any other purpose. However, the Credit Union may correct or amend MICR line information associated with an Electronic Image to facilitate processing of the Electronic Image or a Substitute Check created from that Electronic Image. Notices of rejection shall be effective when given. The Credit Union shall have no liability to you by reason of the rejection of any such Mobile Deposit or the fact that such notice is not given at an earlier time than that provided for herein.

Security Procedures

You agree to the security procedures ("Security Procedures") used by the Credit Union in connection with the Mobile Deposit Services. Such Security Procedures offered by the Credit Union are described herein and in the Documentation applicable to such services. As part of the Security Procedures, the Credit Union may employ various authentication technologies, including, but are not limited to, use of User IDs, passwords and other "Additional Authentication Information" ("AAI") that the Credit Union may require you to provide at the Credit Union’s sole discretion. The Credit Union employs various security and authentication technologies to ensure that you are communicating directly with the Credit Union, and also to ensure that your mobile device is communicating with a legitimate Credit Union computer. You are responsible for the establishment and maintenance of your internal procedures reasonably adapted to insure the confidentiality and security of Security Procedures. YOU UNDERSTAND AND AGREE THAT YOU WILL BE RESPONSIBLE FOR MAINTAINING SECURITY AND CONTROL OVER YOUR USER ID AND PASSWORD PROVIDED BY CREDIT UNION, AND SHALL USE SECURITY FOR SUCH ITEMS COMPARABLE TO THE SECURITY AND CONTROL YOU WOULD USE FOR CASH, BUT IN NO EVENT LESS THAN REASONABLE SECURITY AND CONTROL IN THE CIRCUMSTANCES.

If you have reason to believe that any Security Procedure has or may have become known by unauthorized persons, you shall immediately notify the Credit Union by telephone and confirm such oral notification in writing to the Credit Union within twenty-four (24) hours of the oral notification. The Credit Union will replace the Security Procedures in accordance with the Credit Union’s standard security requirements related to Mobile Deposit. To the maximum extent permitted by applicable law, you will be solely liable for all transactions initiated before the Credit Union has received such notification and has had a reasonable opportunity to act on such notification. The Credit Union reserves the right to change any or all of the Security Procedures offered and/or used at any time by giving oral or written notice to you. You agree that your use of the Mobile Deposit Services after the Credit Union provides notice of such changes constitutes your acceptance of the new Security Procedures. You acknowledge that the purpose of Security Procedures is to authenticate the identity of the person initiating the action, not to detect errors in any transmission or content. The Credit Union is not agreeing to any Security Procedures or other procedure for the detection of errors. You represent that for Mobile Deposit, you consider the Security Procedures to be commercially reasonable with respect to the size, type, and frequency of deposits you anticipate submitting.

The Credit Union Responsibilities

The Credit Union will provide access to the processing equipment and software for Mobile Deposit Services through the Credit Union’s Mobile App. Credit Union will also provide maintenance and support for the Mobile Deposit Services to ensure the accurate processing of checks, including but not limited to:

1. Corrections, contingent or alternate work methods, and repairs to any known system bugs or errors.

2. Modifications, enhancements, or updates that Smart Financial Credit Union elects to make generally available to its members.

3. Telephone and email support during Smart Financial Credit Union’s normal business hours.

B. The Credit Union will provide the required User ID and password to Member in order to engage in Mobile Deposit Services

C. The Credit Union will provide Documentation as well as training materials and support reasonably required for Member’s use of Mobile Deposit Services.

D. The Credit Union will accept for deposit and collection to the Member’s designated account(s) the Electronic Images of Original Checks that are transmitted to the Credit Union in compliance with this Agreement and all applicable laws, rules and regulations. Mobile Deposits are deemed to have been received upon confirmation by the Credit Union of successful receipt of the transmission of Electronic Images that are complete, usable, and adhere to the data specifications set forth in this Agreement. If the Electronic Images are not complete, are not usable, or do not adhere to data specifications, the images may not be processed by the Credit Union. In such event, your deposits will be adjusted and notification will be provided to you.

E. The Credit Union will process your Electronic Images that are Sufficient Image Copies after it has received your transmission of Electronic Images. The Credit Union will use commercially reasonable efforts to present the Sufficient Image Copies for collection under the Check 21 framework. Unless the Credit Union notifies you otherwise, the Credit Union will provide same day ledger credit to your deposits account for all Sufficient Image Copies transmitted by you and received by Credit Union in accordance with the requirements of this Service and within the timelines established by the Credit Union. However, the Credit Union shall not be responsible for providing ledger credit on the same day a file has begun to be transmitted to the Credit Union by you unless the file containing the Electronic Image is fully received by the Credit Union prior to the cut-off time of 6 p.m. CST.

F. If a Drawee Financial Institution returns an image representing an item to the Credit Union unpaid, the Credit Union may charge your applicable account for such returned item, whether or not the return is timely and properly made, and may either (i) return the item to you, or (ii) re-present it to the Drawee Financial Institution before returning it to you. Items may be returned as Image Exchange Items, rather than Substitute Checks. If a Drawee Financial Institution or other third party makes a claim against Credit Union or seeks re-credit with respect to any electronic item, the Credit Union may provisionally freeze or hold aside a like amount in your applicable account pending investigation and resolution of the claim.

G. The Credit Union will provide information detailing Items processed, return items, deposit adjustments, and other related information in your applicable account statement. Credit Union will also retain any Electronic Images contained in Credit Union’s cash letter file for a period of up to five (5) years

H. The Credit Union may refuse to process any non-conforming items, including without limitation, any items that do not meet the definition of a “check”.

Member Responsibilities

A. Member will maintain at least one or more checking accounts at the Credit Union eligible for the receipt of Mobile Deposit.

B. Member will inspect and verify the quality of Electronic Images, ensuring that the Electronic Images of the front and back of the Original Checks are legible for all posting and clearing purposes by the Credit Union. Specifically, the Member is warranting that:

C. The Member’s applicable account will be charged for any deposited check that is later returned to the Credit Union owing to an actual or alleged breach of any such warranty above or otherwise made in this Agreement.

D. Member will assist in the installation and implementation of any changes and upgrades to the Mobile Deposit Services as required by the Credit Union to ensure compliance with regulatory changes and developments, or to protect the integrity and security of such Services.

E. Member will use the Mobile Deposit Services to enter, process, and transmit Original Checks in accordance with procedures and transmission deadlines outlined in this Agreement.

F. Member will verify Credit Union’s receipt of its Mobile Deposit by reviewing deposits that have been posted to the designated accounts, in addition to cooperating with the Credit Union in any investigation and resolving any unsuccessful or lost transmissions.

G. Member will comply with all Security Procedures outlined in this Agreement and any Documentation and agrees not to bypass, override or disable any security mechanisms in the processing software or processing equipment.

I. Member will retain each Original Check for the time frame specified in this Agreement after an Electronic Image of the check has been created and will promptly provide any related Original Check (or Sufficient Copy of the front & back of the Original Check) to Credit Union as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any check. Member understands that in all cases it is solely responsible for safeguarding all such images from destruction, alteration or theft in accordance with the provisions of this Agreement.

I. Member will use commercially reasonable methods to destroy the Original Checks after the required retention time has expired to render them unusable or otherwise unreadable.

J. Member will cooperate with the Credit Union in providing information and access to Member records in the event of lost, mistaken, incomplete, or unusable Electronic Images, or in the event of claims of fraud, alteration, counterfeit or otherwise.

K. Member may not perform Mobile Deposit Services for any third party, and any attempt to do so shall automatically terminate this Agreement, except for any provisions of this Agreement that are expressly to survive such termination.

Representations and Warranties

By depositing Electronic Images with the Credit Union via the Mobile Deposit Services, you give us the same warranties and indemnities that we, as a reconverting bank, would give under applicable law or regulation. You understand and acknowledge that all of the warranties deemed given by a depositor of a check under the Uniform Commercial Code (“UCC”), as applicable from time to time in the State of Texas, shall also apply to any Electronic Image of an Original Check the same as if such Electronic Image or Substitute Check were a paper check within the meaning of the UCC as adopted by the State of Texas (“Texas UCC”). Accordingly, except to the extent that any warranties deemed given under the Texas UCC are expressly superseded by the Check 21 Act or the Check 21 regulations, you understand that you are deemed to give us all the same warranties you would have given under the Texas UCC for the deposit of an Original Check by transferring to us: (a) any Substitute Check; (b) an IRD or other item purporting to be a Substitute Check; or (c) any Electronic Image that purports to contain a Sufficient Copy of an Original Check or a Substitute Check. Such warranties also include the following two (2) specific warranties regarding transfer and presentment:

The above warranties are deemed given to the Credit Union and any person, company or Credit Union to which the Credit Union transfers, presents or returns any of the Images included in such electronic file as a Sufficient Image Copy or that purports to be a Sufficient Image Copy created by the Credit Union or any subsequent bank receiving a copy of such image. Member represents that it shall permit no third parties to use the Mobile Deposit Services to deposits Original Checks to Member’s Account.

With respect to each and every Mobile Deposit initiated by you, you represent and warrant to, the Credit Union and agrees, that you shall perform your obligations under this Agreement in accordance with all applicable laws and regulations, including the sanctions laws administered by OFAC and the Bank Secrecy Act.

Liability

A. In the performance of this Agreement, the Credit Union shall be entitled to rely solely on the information, representations, and warranties provided by Member pursuant to this Agreement and the use of the Mobile Deposit Services, and shall not be responsible for the accuracy or completeness thereof. The Credit Union shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its gross negligence or willful misconduct in performing those services.

The Credit Union shall not be responsible for Member’s acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal, or authorization of any deposits received from Member) or those of any other person, including, without limitation, any Federal Reserve Credit Union, or transmission or communications facility, and no such person shall be deemed the Credit Union’s agent.

The Credit Union makes no warranty of any kind, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, the existence of any latent or patent defects, viruses, or the accuracy or freedom from error, of the data or the program used by or furnished to the Credit Union or to you by licenser or others, in connection with any software or Service(s) provided to you under this Agreement. Without limiting the generality of the foregoing, the Credit Union makes no representation or warranty, expressed or implied, against any infringement of any proprietary rights of any other party. You assume the entire risk as to the quality and performance of the software provided, the suitability of the Mobile Deposit Services, and with respect to any documentation. This paragraph shall survive the termination of this Agreement by either you or the Credit Union, and also limits the liability of any agent, employee, or affiliate of the Credit Union. We do not and cannot warrant that the software provided will operate without errors, or that any or all Mobile Deposit Services will be available and operational at all times.

You agree to indemnify the Credit Union against any loss, liability, or expense (including attorney’s fees and expenses) resulting from or arising out of any claim of any person that the Credit Union is responsible for any act or omission of Member or any other person described in this Section 11.

B. The Credit Union shall be liable only for Member’s actual damages; in no event shall the Credit Union be liable for any consequential, special, incidental, punitive, or indirect loss or damage which Member may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by the Credit Union and regardless of the legal or equitable theory of liability which Member may assert, including, without limitation, loss or damage from subsequent wrongful dishonor resulting from the Credit Union’s acts or omissions pursuant to this Agreement.

Liability shall not exceed the sum of the amount of any loss suffered by the Member as a result of a breach of warranties under Regulation CC (12 CFR Part 229) up to the amount of any Substitute Check, interest and expenses (including cost and reasonable attorney fees and other expenses of presentation) related to the Substitute Check reduced by any amount that the Member receives and retains as a re-credit. Furthermore, such liability shall be further reduced by the amount of any damages incurred as a result of the negligence or bad faith of the Member.

C. Without limiting the generality of the foregoing provisions, the Credit Union shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission of communication facilities, equipment failure, war, adverse weather, terrorism, emergency conditions, or other circumstances beyond the Credit Union’s control.

In addition, the Credit Union shall be excused from failing to transmit or delay in transmitting a deposits if such transmittal would result in the Credit Union’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in the Credit Union’s reasonable judgment otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. In such event, Member shall be responsible for having a contingency plan in place including temporarily depositing original, paper items at any branch facility of the Credit Union.

D. Subject to the foregoing limitations, the Credit Union’s liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of Dallas for the period involved. At the Credit Union’s option, payment of such interest may be made by crediting the account resulting from or arising out of any claim of any person that the Credit Union is responsible for any act or omission of Member or any other person described in Section 11.

Termination

The Credit Union reserves the right to terminate this Agreement immediately upon providing written notice to you of such termination. We may also, in our sole discretion, terminate your Mobile Deposit effective immediately if: (i) there is an occurrence of a material change in your account activity or other risk analysis criteria as determined by us in our sole and absolute discretion; (ii) we at any time determine that you do not meet our risk or other qualification requirements; (iii) we discover any willful misconduct (including but not limited to types of fraudulent activity) on your part or any other party with respect to Electronic Images submitted for deposits by you; (iv) you are in default of any terms of this Agreement where such default gives us the right to terminate, immediately or otherwise, or close your account; (v) you have not used Mobile Deposit Services for a period of time deemed to constitute an inactive service by us (in our sole discretion); or (vi) you are in default of any terms of the Agreement or any other agreement with us. In any of these events, you agree that our sole obligation shall be to provide notice of our termination of Mobile Deposit Services to you, and that such notification will be reasonable if it is mailed to your statement mailing address immediately upon termination.

Either you or the Credit Union may terminate Mobile Deposit Services, with or without cause, upon thirty (30) calendar days’ written notice to the other of its intent to do so, sent to you at your statement address and sent to us at the address provided herein. In the event of termination of Mobile Deposit Services, your rights and responsibilities as well as ours, shall continue through any applicable settlement period, including your responsibility to pay us for Mobile Deposit Services and with respect to transactions processed prior to the effective date of termination. If Mobile Deposit Services are terminated by us, we may accelerate all amounts due and to become due, and you agree to promptly make full payment to us of all amounts due and amounts incurred by you through your use of our Mobile Deposit Services.

Any termination of this Supplemental Agreement shall not affect any of the Credit Union’s rights and Member’s obligations with respect to deposits initiated by you prior to such termination, or the payment obligations of Member with respect to services performed by the Credit Union prior to termination, or any other obligations that survive termination of this Agreement.

Amendments

From time to time, the Credit Union may amend any of the terms and conditions contained in this Agreement, including, without limitation, any cut- off time or any Business Day. Such amendments shall become effective upon receipt of notice by Member or such later date as may be stated in the Credit Union’s notice to Member. You agree that your use of the Mobile Deposit Services after the Credit Union provides notice of such changes constitutes your acceptance of the changes.

Entire Agreement

This Agreement (including the Documentation) together with the Deposits Agreement, Mobile App User Agreement and other applicable agreement between Member and the Credit Union is the complete and exclusive statement of the agreement between the Credit Union and Member with respect to the subject matter hereof and supersedes any prior agreement(s) between the Credit Union and Member with respect to such subject matter.

In the event of a conflict or inconsistency between the terms of the Deposits Agreement, or any other agreement between you and the Credit Union and the terms of this Agreement, with respect solely to the Mobile Deposit Services, the terms of this Agreement shall control, but only to the extent of such conflict or inconsistency. In the event performance of the services provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulation, or government policy to which the Credit Union is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation, or policy, and the Credit Union shall incur no liability to Member as a result of such violation or amendment. No course of dealing between the Credit Union and Member will constitute a modification of this Agreement or the Security Procedures or constitute an agreement between the Credit Union and Member regardless of whatever practices and procedures the Credit Union and Member may use.

Non-Assignment

Member may not assign this Agreement or any of the rights or duties hereunder to any person.

Waiver

The Credit Union may waive enforcement of any provision of this Agreement. Any such waiver shall not affect the Credit Union’s rights with respect to any other transaction or modify the terms of this Agreement.

Binding Agreement

This Agreement shall be binding upon and solely for the benefit of the parties hereto and their respective legal representatives, successors, and assignees. This Agreement is not for the benefit of any other person, and no other person shall have any right against the Credit Union or Member hereunder.

Severability

In the event that any provision of this Agreement shall be determined to be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

Governing Law/ Venue/ Jurisdiction

This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. This Agreement is performable in Harris, Brazoria, Montgomery or Fort Bend counties Texas, and venue shall be proper in such County for all purposes. Member consents to jurisdiction in any state or federal court in the State of Texas.