This Brilliant Bank Online Banking Agreement (the "Agreement") governs the online and mobile banking network services (referred to as www.brilliant.bank or the "Services") provided by Brilliant Bank a division of Equity Bank (referred to as the Bank, "we," "us," and "our") in connection your deposit account(s) with us. Your deposit account(s) (the "Deposit Account(s)") is governed by the Brilliant Bank Deposit Account Agreement (the "Deposit Agreement"), which is provided to you separately. Customer (referred to as the Customer, "you" and "your") agrees to the following terms and conditions of enrollment in www.brilliant.bank. A "business day" under this Agreement is defined as Monday through Friday, excluding federal holidays.
THIS AGREEMENT REQUIRES DISPUTES BETWEEN YOU AND US TO BE RESOLVED IN INDIVIDUAL ARBITRATION. THE TERMS OF THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER APPEAR IN SECTION 18 OF THIS AGREEMENT.
1. Services. The following are the Services governed by this Agreement:
By using these Services as they become available, you agree to be bound by the terms and conditions contained in this Agreement, as amended or supplemented from time to time. We will generally process your enrollment request by the business day following the day your submit your request. If all required information has been received, we will send you a welcome message to the email address you provided us. You will allow us a reasonable time in which to process any service requests made through www.brilliant.bank.
Brilliant Bank is a division of Equity Bank and shares processing software for some transactions. You may receive communication from Equity Bank and some transactional activity may show Equity Bank on your Brilliant Bank account activity and statements.
2. Security. Once you complete the Enrollment Form and create a user ID and password for access to the Services, you will have an account that gives you access to the Services and your Deposit Accounts with us (the "Account"). You agree that we are entitled to act upon instructions we receive under your user ID, password, test key or other code or authentication method that we require (these components are referred to herein collectively as your "Authentication Method"). We have no responsibility for establishing the identity of any person who uses your Authentication Method. You agree that if you give any component of your Authentication Method to anyone or fail to safeguard its secrecy, you will be in violation of your obligations under your Deposit Agreement and this Agreement. You agree to take appropriate steps to ensure that all components of your Authentication Method are protected and kept confidential. When initiating certain transactions, you may be asked to reauthenticate your logon credentials prior to completing the transaction. We have the right to monitor and review all banking activity conducted on www.brilliant.bank. To prevent unauthorized entry to your Account and Deposit Account, you agree to install, monitor and maintain adequate security measures and/or software programs on any and all computers and/or wired or wireless networks that you use to access the Services.
By accessing the Services with your Authentication Method, you authorize us to complete the requested transaction(s). Any requests or instructions we receive from you through the Services using your Authentication Method shall be considered authorized by you and shall be considered "in writing" under all applicable law and shall have the same force and legal effect as a writing signed by you. This includes, but is not limited to, inquiries, internal and external transfers, deposit transactions, changes to accounts or services or any other communication you provide us through the Services using your Authentication Method.
3. Service Charges. You are responsible for any service charges incurred by any user with authorized access to your Account. We may deduct service charges separately from your Deposit Account in accordance with our schedule of fees, which is provided to you with your Deposit Agreement and is available by calling Bank at 833-605-1037.
4. Account transfers. You may use the Services to transfer funds between your accounts with us.
You also may use the Services to transfer funds from your Deposit Account(s) to an account you hold at another depository institution. We will charge you $2.55 each time you use the Services to initiate an external transfer of funds from your Deposit Account to an external bank account.
External transfers you submit after 5:00 p.m. CST or on a non-business day will be processed by us our next business day. Availability of your funds in your external bank account are subject to your external bank's funds availability rules. You must have enough available funds in your Deposit Account from which you instruct us to make a transfer. All transfers will be made in U.S. Dollars. When initiating an external transfer, you may be asked to reauthenticate your logon credentials prior to completing the external transfer.
If any Deposit Accounts from which you choose to make an external transfer are money market deposit accounts or savings deposit accounts, you are limited to [insert number] external transfers from the account for the specified period. The specified period for money market deposit accounts is the monthly statement period. The specified period for savings deposit accounts is a calendar month.
Transfers are not final at the time we receive your instructions, but we will begin to process your instructions promptly. You should allow at least one (1) business day for the transfer to post to your Deposit Account(s) after the business day on which you submit the transfer. Please note that for external fund transfers, the time for completion and posting of the transfer may be extended due to processing times and delays by other financial institutions and intermediaries. We will not be responsible for any delay regarding a fund transfer due to any processing time or delay of other financial institutions and intermediaries.
If you want to cancel or modify transfers you have instructed us to make, you must do so by no later than the day before the business day on which the transfer is scheduled to be made by logging into your Account and making the changes. You also may call us at 833-605-1037 during normal business hours or write us at: Brilliant Bank a division of Equity Bank, Attn: Electronic Services, PO Box 782378 Wichita, KS 67278. If you call or write, you must do this in time for us to receive your request at least three (3) business days before the transfer is scheduled to be made. If you call, we may also require you to put your request in writing and have it delivered to us within fourteen (14) days after you call.
Brilliant Bank is a division of Equity Bank and shares processing software for some transactions. You may receive communication from Equity Bank and some transactional activity may show Equity Bank on your Brilliant Bank account activity and statements.
5. Mobile Check Deposit.
The Mobile Check Deposit capture service (the "MCD Service") allows you to use a compatible camera-enabled mobile phone or device ("Mobile Device") to scan original checks or other deposit items that meet our required standards ("Checks") and electronically transmit images of the Checks and associated deposit information us for deposit to your designated Deposit Account(s). The MCD Service converts your scanned Checks into digital images, which are then cleared and presented for payment as either substitute checks, in accordance with the Check Clearing for the 21st Century Act ("Check 21 Act") or electronically converted checks which are processed in accordance to the National Automated Clearing House Association rules ("NACHA"), or through other image exchange programs.
Your use of the MCD Service will be subject to all of the terms or instructions which may appear on-screen when you access the MCD Service, or in user guides, and/or other information or documentation that we may provide to you from time to time regarding the MCD Service. Your use of the MCD Service is also subject to, and you agree to comply with, the applicable rules and regulations of the NACHA, all other applicable clearing house rules, regulations, operating circulars and agreements, the Check 21 Act, Office of Foreign Assets Control sanction laws, the Bank Secrecy Act, the USA PATRIOT Act, the Uniform Commercial Code (UCC) as enacted in Kansas, and all other applicable state and federal laws and regulations, all as amended from time to time.
Brilliant Bank is a division of Equity Bank and shares processing software for some transactions. You may receive communication from Equity Bank and some transactional activity may show Equity Bank on your Brilliant Bank account activity and statements.
5.1. Hardware and Software Requirements. In order to use the Service, you must have a Mobile Device that is acceptable to us and a wireless plan from a compatible mobile wireless provider. You must also use the operating system(s) and software that satisfies all technical specifications and other requirements that we and/or our service provider(s) establish and specify. We and/or our service provider(s) may change these specifications and/or requirements from time to time.
Unless otherwise provided in this Agreement, you are solely responsible, at your own expense, for purchasing, installing, operating, testing and maintaining all hardware and software necessary to use the Service. You must install and test your Mobile Device, your system, and any other required hardware and software before you make your first deposit through the Service. We are not responsible for any third party software that you may need to use the Service. You accept any such software "as is" and subject to the terms and conditions of the software agreement that you enter into directly with the third party software provider at the time of download and installation.
We are not responsible for providing, maintaining or servicing your Mobile Device or any other equipment for you, nor are we responsible for any costs you incur in using your Mobile Device or in accessing the Service. You agree that you will perform, or cause to be performed by properly trained personnel, all vendor recommended maintenance, repairs, upgrades and replacements.
We are not responsible for, and you release us from, any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using the Service, e-mail or the Internet. You agree that all images and files transmitted to us through the Service will contain no viruses or any other disabling features that may have an adverse impact on our network, data, or related systems.
5.2. Check Requirements. Both the front and back of each Check must be transmitted to us as provided in any user guide or other instructions we may provide to you, including on-screen instructions. We in our sole discretion may refuse to accept Checks that do not meet our image quality requirements. This includes, without limitation Checks where:
- the front and/or back image is too large or too small;
- the front and/or back image is too light or too dark;
- the front and back images have a dimension or other mismatch or discrepancy;
- the image has torn or folded edges, cut corners, or other damage;
- the image does not comply with the standards for image quality established from time to time by the American National Standard Institute (ANSI), the Federal Reserve Board, any other regulatory agency, clearing house or association, or by us, or by applicable law.
Any image of a Check that you transmit through the Service must accurately and legibly provide all of the information (within the edges of the check) on the front and back of the Check at the time it was presented to you. You must endorse the original Check with the restrictive endorsement "For Mobile Deposit Only" and your signature or legal mark before scanning it. You authorize the Bank to supply an endorsement on your behalf for deposit to your Deposit Account if a Check is missing or has an improper endorsement.
You agree that the scanned image of each Check shall provide the following information: (1) identification of the drawer and the paying bank that is preprinted on the Check, including complete, full-field, and accurate MICR (magnetic ink character recognition) line, routing transit number, number of the account on which the Check is drawn, and drawer signature(s); (2) amount, payee, date, Check number; and (3) other information placed on the Check before imaging, such as any required identification written on the front of the Check and any endorsements applied to the back of the Check.
We in our sole discretion may refuse to accept, and you represent and warrant that you shall not use the MCD Service to deposit, any Checks that:
- are payable to any person other than you;
- contain obvious alterations to any of the fields on the front of the Check, or which you know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the account holder;
- are substitute checks as defined by Check 21 or IRDs (image replacement documents) that purport to be substitute checks and which have been previously endorsed by a financial institution;
- are drawn on a financial institution located outside the United States or are not payable in United States currency;
- are dated more than six (6) months prior to the date of deposit;
- have a duplicate MICR code line;
- are missing or have an invalid or incorrect routing number;
- are photocopies or otherwise not original paper Checks when they are scanned;
- are issued to multiple parties;
- are third party or second endorsed Checks;
- have been previously returned to you as unpaid or dishonored by the payor financial institution;
- do not qualify as "original checks" as defined in Regulation CC.
5.3. Rejection of Deposits by the Bank. After we receive Check images and all other required deposit information from you through the MCD Service, we shall provisionally credit your designated Deposit Account for the total amount of such Checks. The provisional credit is subject to final payment of the Checks and is also subject to your Deposit Agreement.
You agree that all deposits received by us are subject to verification and final inspection and may be rejected by us in our sole discretion, and you shall be liable to us for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against us relating to such deposits.
The Bank is not liable for any service or late charges that may be imposed against you due to the Bank's rejection of any Check that you transmit for deposit through the Service. In all cases, you are responsible for any loss or overdraft plus any applicable fees to your Deposit Account due to a Check being returned.
You acknowledge and agree that, while we normally provide notice of rejected deposits, we may reject any Check transmitted through the Service in our sole discretion without notice to you, and we will not be liable for any such rejection or failure to notify you of such rejection. If we reject a Check for remote deposit, you must physically deposit the original Check.
5.4. Checks Returned Unpaid. You are solely responsible for verifying that Checks that you deposit by using the Service have been received and accepted for deposit by us. We will provide you with notice of any deposits that we are unable to process because Checks were returned unpaid by the payor financial institution. You agree to accept such notices at your email address on file with us, but we may choose any reasonable method for providing such notices to you. You agree to notify us in the event you change or cancel your on-file email address.
In the event that we credit your Deposit Account for a Check that is subsequently dishonored and returned, you authorize us to debit the amount of such Check plus any associated fees from the Deposit Account. To the extent that funds in your account are insufficient to cover such amount, we shall debit the deficiency amount from any of your other Deposit Account(s) with us in our sole discretion. Our right to charge your Deposit Account(s) will apply without regard to whether the Check was timely returned or whether there is any other claim or defense that the Check was improperly returned.
You understand and agree, since you will retain possession of the original check when using the MCD Service, the original check will not be returned and we may charge back an image of the Check, an ACH debit, or other electronic or paper debit, as applicable, to your Deposit Account if the item is returned unpaid to us. See Section 5.8 for retention requirements. You further agree that any image that we charge back may be in the form of an electronic or paper reproduction of the original Check or a substitute check.
You may not use the MCD Service to deposit a substitute check and you may not deposit the original Check through the MCD Service or in any other manner if you receive a dishonored Check. You agree to comply with any additional instructions we may provide to you in connection with returned Checks.
5.5. Your Duty to Report Errors. We will provide you with periodic statements that will identify the deposits that you make through the MCD Service. In addition, you may access the Services for information about your deposits, return items, deposit adjustments, Checks and other transactions on your Deposit Accounts. You agree that it is your responsibility to review all such information we make available to you in a timely manner to verify that deposits made through the MCD Service have been received and accepted by us and are accurate. Receipt of a Check by us through the MCD Service does not constitute an acknowledgement by us that the Check is error-free or that we will be liable for the Check.
You agree to notify us promptly of any errors, omissions or discrepancies in a deposit within the time periods established in your Deposit Agreement.
You may notify us by e-mailing us at firstname.lastname@example.org or writing to us at: Brilliant Bank a division of Equity Bank, Attention Deposit Processing, PO Box 782378, Wichita, KS 67278 or telephoning us at 1-833-605-1037.
You agree to cooperate in any investigation by us of any unsuccessful or lost transmission. Subject to applicable law, any failure by you to notify us of any error, omission or other discrepancy in accordance with this Agreement and your Deposit Agreement shall relieve us of any liability for such error, omission or discrepancy.
5.6. Availability of the Service. The MCD Service is generally available 7 days a week, 24 hours a day. At certain times the MCD Service may not be available due to system maintenance or technical difficulties, including those of the wireless service provider, the software, or circumstances beyond our control. If you are not able to use the MCD Service to make deposits you may physically mail your deposits to us. Deposit of original Checks received via mail shall be governed by the terms and conditions contained in your Deposit Agreement and not by the terms of this Agreement. We are not responsible for providing an alternate method of remote deposit if the MCD Service is not available.
5.7. Funds Availability. "Funds Availability" refers to your ability to use the funds that you deposit into your Deposit Account through the MCD Service. This funds availability policy only applies to deposits made using the MCD Service.
The funds for the Checks that you deposit through the MCD Service may not be immediately available to you. In order to determine the availability of your funds, you will need to determine the date and time that the Checks and all required data and information are received by us. You understand and agree that we shall not be deemed to have received a Check deposit through the MCD Service until we notify you via onscreen messaging and/or email that we received the Check deposit.
The deposit cut-off time for the MCD Service is 6:00 p.m. CST. We reserve the right to change the cut-off time in our sole discretion. Such change shall be effective immediately and may be implemented before you receive notice of the change. You may contact us at any time to verify our current cut-off time. If you complete the scanning and transmission process and receive your deposit receipt, Checks that you deposit before the cut-off time on our business days will be considered as received that same business day. Checks that are received by us through the MCD Service after the cut-off time on a business day, or on any day that is not a business day, will be considered as received by us on the next business day. For purposes of determining when a deposit is received, the Bank's records shall be determinative.
Funds from a Check you deposit using the MCD Service that are under $1,000 will generally be available on the next business day after the day we receive the Check. Funds from a Check you deposit using the MCD Service that are $1,000 or greater will generally be available on the 5th business day after the day we receive the Check. We may delay availability of funds based on such factors as creditworthiness, the length and extent of your relationship with us, transaction and experience information, and such other factors as we, in our sole discretion, deem relevant. We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. In general, funds delayed for the above reasons will be available no later than the 7th business day (Monday thru Friday, excluding federal holidays) after the day of your deposit. You agree that it is your responsibility to understand and build into your transmission schedules the appropriate deadlines necessary to meet our funds availability schedule.
We are not liable for transactions you initiate before the funds are available for your use. Until the funds are made available, you may not withdraw the funds in cash and we will not use the funds to pay items that you have written or honor other withdrawals you request. If we pay items that you have written or honor other withdrawals before funds are available to you, we may charge a fee for this. Even after the item has "cleared," we have made funds available to you, and you have withdrawn the funds, you are still responsible for items you deposit that are returned to us unpaid and for any other problems involving your deposit.
5.8. Storage, Security and Destruction of Original Checks. You agree that once a Check has been deposited through the MCD Service, the original Check is your property and not our property of the Bank. You shall securely store the original Check for a reasonable period, not to exceed 14 days, after you receive a deposit receipt through the MCD Service that the Check has been accepted. While the original Check is in your possession, you agree to use a high degree of care to safeguard the original Check and related files against security risks. Security risks include, without limitation, the theft or reproduction of the original Check or unauthorized use of the information on the Check or in the file. You shall take appropriate security measures to ensure that: a) only authorized persons shall have access to the original Check; b) the information contained on the Check shall not be disclosed to unauthorized persons; and c) the original Check will not be duplicated, will not be scanned more than one time, and will not be presented, deposited or negotiated again in any way. Upon our request you will promptly provide us a retained original Check, or a sufficient copy of the front and back of the Check in form acceptable to us, to aid in the clearing and collection process, or to resolve claims by third parties, or for our audit or fraud loss prevention purposes.
After the 14-day retention period expires, you shall destroy the original Check by shredding it or by any other permanent deletion manner that does not allow the original Check to be accessed by an unauthorized person(s) and in a manner that the original Check is no longer readable or capable of being reconstructed. After destruction of an original Check, the image will be the sole evidence of the original Check.
You agree to be responsible to us for any losses, costs, expenses, and damages we may incur as a result of your failure to comply with the provisions of this Section.
5.9. Prohibition Against Presenting Checks More Than Once. Once you have used the MCD Service to deposit a Check, you agree not to present, or allow anyone else to present, that original Check or a substitute check of that original Check again for deposit through the MCD Service or by any other means. If you or anyone else present a Check or substitute check for deposit more than once, in violation of this Agreement, you agree to indemnify, defend and hold us harmless from and against all liability and damages that may result from any claims, suits or demands from third parties with respect to such Check or substitute check.
You agree that we may debit from your Deposit Account the aggregate amount of any Checks that that are deposited more than once. To the extent that funds in your Deposit Account are insufficient to cover such amount, we shall debit the deficiency amount from any other of your Deposit Account(s) with us in our sole discretion.
5.10. Compliance with Law; Prohibited Activities. You agree to use the MCD Service for lawful purposes and in compliance with all applicable laws, rules and regulations.
You are prohibited from engaging in, and you represent and warrant to us, that you do not and shall not engage in, any business or activity that: a) would result in your being or becoming a money service business that regularly cashes third-party checks, sells money orders, or handles wire transfers or other financial services for third parties; b) would result in your accepting restricted transactions in connection with another person in unlawful Internet gambling; c) would result in the Bank being used as a conduit for money laundering or other illicit purposes; or d) would directly or indirectly result in any activity or use of the MCD Service that may be illegal or fraudulent.
5.11. Your Financial Information. We may request financial and other information from you from time to time in order to evaluate the risks of providing the MCD Service to you. You agree to promptly provide any such financial and other information we request. You authorize us to review your financial information, including consumer reporting agency reports, before we authorize you to use the MCD Service and for as long as you use the MCD Service. If you do not provide any requested financial or other information, or if we determine that the credit, security or other risks of continuing to provide the MCD Service to you are not acceptable, we may immediately terminate your access to the MCD Service without prior notice.
5.12. Bank's Duties and Responsibilities. Our duties and responsibilities are limited to those described in this Agreement, your Deposit Agreement, and any other agreements governing your Deposit Account(s) or the Services. We shall exercise reasonable due care in performing our responsibilities with respect to the MCD Service. We agree to transmit all the financial data under our control that is required for you to use the MCD Service and to act on appropriate instructions that we receive from you in connection with the MCD Service. We shall exercise reasonable due care in seeking to preserve the confidentiality of your user ID, password, and/or other code or identifier and to prevent the use of the MCD Service by unauthorized persons. We shall not otherwise be liable or responsible for any loss you incur or damage you suffer as a result of any unauthorized person accessing or using the MCD Service.
You agree that implementation by us of our standard procedures for maintaining the confidentiality of customer information, and where practicable, our obtaining similar undertakings from any third parties who are engaged in installing, maintaining, or operating the Service, shall constitute fulfillment of our obligation to exercise reasonable due care. You assume full responsibility for the consequences of any misuse or unauthorized use or access to the MCD Service or disclosure of any of your confidential information or instructions by your agents or other third parties.
We shall not be responsible for suspension of performance of all or any of our duties or responsibilities with respect to the MCD Service if at any time, or from time to time, such performance is prevented or hindered by, or is in conflict with, any federal or state law, regulation or rule, or court order. We shall not be responsible or liable for any loss you incur or damage you suffer in the event of any failure or interruption of the MCD Service or any part of the MCD Service, resulting from the act or omission of any third party, or from any other cause or circumstance not reasonably within our control.
5.13. MCD Service Fees. Currently we do not impose any fees for the MCD Service. We reserve the right to impose fees for the MCD Service in the future and we will notify you of any such fees, in the manner and to the extent required by this Agreement, your Deposit Agreement, and by law. Your use of the MCD Service after the effective date of any fee changes shall constitute your agreement to such fee changes. You also understand and agree that you are responsible for any wireless service provider charges and any and all other fees and charges that you may incur by accessing and using the MCD Service. If we do impose fees for the MCD Service in the future, you may avoid these fees by notifying us of your intent to discontinue the use of the MCD Service (if monthly fee; no notice required for per Check fee) and mail your deposits to us.
5.14. Your Representations and Warranties. In addition to your representations and warranties contained in other provisions of this Section 5, you represent and warrant that:
- Each Check you deposit through the MCD Service will be an item as defined in the Kansas UCC Article 4, and that item, once negotiated by you, carries your transfer and presentment warranties as described in said UCC;
- Each image of a Check you transmit to us is a true and accurate rendition of the front and back of the original Check, without any alteration, and the drawer of the Check has no defense against payment of the Check.
- You are authorized to enforce each Check you transmit for deposit or are authorized to obtain payment for each Check on behalf of a person entitled to enforce such transmitted Check.
- You are solely responsible for any and all financial risk that may be associated with your use of the MCD Service, including without limitation the risk that a Check will be returned for insufficient funds.
- You are solely responsible for the instructions you provide us and for failing to properly access or use the MCD Service, including without limitation input errors.
- You will not deposit or otherwise endorse to a third party the original Check, and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original Check or a paper or electronic representation of the original Check such that the person will be asked to make payment based on an item that has already been paid.
- You will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations.
If you breach any of these representations and warranties, you agree to indemnify, defend and hold us harmless from and against any and all liability, damages or losses arising from any claims, suits or demands from third parties with respect to such breach. You further authorize us to debit your Deposit Account for the amount of any such claim, suit or demand that results from a breach of warranty claim under the provisions of Check 21, Regulation CC, and/or the Uniform Commercial Code. You will maintain funds in your account(s) in amounts and for a period of time as we determine in our sole discretion to cover any outstanding Checks and your obligations for returns of Checks, warranty claims, fees and other obligations. If any such liabilities exceed the amount in the applicable Deposit Account(s), we may charge such excess against any of your other Deposit Accounts at the Bank and you will pay us any amount remaining unpaid immediately upon our demand.
5.15. Your Authentication Method. You agree that we are entitled to act upon instructions we receive with respect to the MCD Service under your user ID, password, test key or other code or authentication method that we require (these components are referred to herein collectively as your "Authentication Method"). You are liable for all transactions made or authorized with the use of your Authentication Method. We have no responsibility for establishing the identity of any person who uses your Authentication Method. You agree that if you give any component of your Authentication Method to anyone or fail to safeguard its secrecy, you will be in violation of your obligations under your Deposit Agreement and this Agreement. You agree to take appropriate steps to ensure that all components of your Authentication Method are protected and kept confidential.
You agree to indemnify and release us from any and all liability, and agree not to make any claim or bring any action against us, relating to our honoring or allowing any actions or transactions that are conducted under your Authentication Method or acting upon instructions, messages or authorizations provided to us using your Authentication Method.
By accessing the MCD Service with your Authentication Method, you authorize us to complete the requested transaction(s) through the MCD Service. Any requests or instructions we receive from you through the MCD Service using your Authentication Method shall be considered "in writing" under all applicable law and shall have the same force and legal effect as a writing signed by you. This includes, but is not limited to, inquiries, deposit transactions, Checks deposited, Check images, changes to accounts or services or any other communication you provide us through the MCD Service using your Authentication Method.
5.16. Mobile Deposit Security; Data Security. You understand that Check images captured using your Mobile Device are stored on the Mobile Device only until the associated deposit has been successfully submitted. You agree to promptly complete each deposit. In the event that you are unable to promptly complete your deposit, you agree to ensure that your Mobile Device remains securely in your possession until the deposit has been completed or to delete the associated images from the application.
It is your responsibility to notify us immediately by telephone at 833-605-1037 if you learn of any loss or theft of original Checks. We also may require written confirmation. You will ensure the safety and integrity of original Checks from the time of receipt until the time of destruction. You agree to protect the confidentiality of your Deposit Account and Deposit Account number, your data, and your personal identification information. Notwithstanding our efforts to ensure that the MCD Service is secure, you acknowledge that the Internet is inherently insecure and that all data transfers, including e-mail, occur openly on the Internet and potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the MCD Service or email transmitted to and from us, will not be monitored or read by others.
5.17. Proprietary Rights. You acknowledge and agree that we and our service providers retain all ownership and proprietary rights in and to the MCD Service, associated content, technology and website(s). You are permitted to use the MCD Service only as expressly authorized by this Agreement. In addition, you agree that you will not: a) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or MCD Service; b) copy or reproduce all or any part of the technology or MCD Service; or c) interfere, or attempt to interfere, with the technology or the MCD Service.
6. Bill Pay. The bill pay service we offer as part of the Services under this Agreement ("Bill Pay Service") permits you to pay merchants, businesses, individuals, and other third parties ("Payees") that you have selected to receive payment in the amounts and on the days you request. The Bill Pay Service is accessible online and in our mobile app. The Bill Pay Service is available only for checking accounts. We reserve the right to decline to make payments to certain persons and entities. The Bill Pay Service is intended for your use only to pay bills and not for any other purpose. Using the Bill Pay Service to process payments on behalf of someone else is prohibited and will be grounds for termination of the Bill Pay Service, the Services, and your Deposit Account. You represent and warrant to us that you will use the Bill Pay Service solely for personal, family or household purposes and not for any business or commercial purpose.
6.1 Payee List. For each Payee to which you wish to send payments using the Bill Pay Service, you must provide us sufficient information about each Payee for us to properly direct a payment to such Payee and to direct such Payee how to identify the correct account to credit with your payment. The information that is required about each Payee is subject to change from time to time and includes, without limitation, the name, address, and phone number of the Payee and your account number for your account with the Payee. In order to facilitate payments to each Payee, we may modify or delete some or all of the information you have entered about the Payee with information provided to us by or on behalf of the Payee. This information may include, but is not limited to, routing information required for electronic payments or information that identifies the Payee or your account with the Payee. You cannot use the Bill Pay Service to make payments to Payees located outside the U.S. All Payees must have valid U.S. mailing addresses that we are able to verify.
6.2. Scheduling Payments. You may use the Bill Pay Service to schedule payments to Payees on a one-time or recurring basis. A payment may be scheduled to be initiated on the current business day, on a future date, or on a recurring monthly basis. Payments can be initiated only on business days. You may enter payment information through the Bill Pay Service whenever the service is available. Any payment scheduled to be initiated on a date that is not a business day will be initiated on the first business day after the scheduled date. Payments must be scheduled prior to 3:00 pm CST on any business day in order for the payment to be initiated on that business day. When scheduling a payment to arrive at the Payee by a particular future date, you will enter the date the payment is due, and based on that date the Bill Pay Service will display the date on which the payment will be initiated (the "Process Date") in order for the payment to arrive to the Payee by the due date you have provided. The Process Date typically must be up to five business days before the due date in order for the payment to arrive to the Payee by the due date. You are solely responsible for scheduling the payment to be initiated in time for the payment to arrive at the Payee by the Payee's due date and for the accuracy of the payment instructions you enter through the Bill Pay Service.
6.3. Delivery of Payments and Posting to Your Deposit Account. We reserve the right to select the method by which to remit funds on your behalf to your Payee. These payment methods include an electronic fund transfer and check payment. For a payment we make electronically by electronic fund transfer, the Process Date also will be the date on which we will debit funds from your Deposit Account for that payment. For a payment we make by check, we will not debit your Deposit Account until the check is presented to us by the Payee and processed by us. We cannot control when your Payee presents the check for payment. Because of the time it takes to send your payment to the Payee, whether by electronic fund transfer or by check, your Payee may not receive payment when due depending on when you schedule the payment to be initiated. If you wish to provide sufficient time for payment to be received by your Payee by the time it is due, you may enter into the Bill Pay Service a payment due date (that is a business day) that is prior to the date your payment is actually due.
6.4. Changing and Stopping Payments. You may delete or edit any scheduled payment before the Process Date. Once we have begun processing a payment on the Process Date, the payment cannot be cancelled or edited. If you desire to stop any single payment that we have begun processing, you must contact us. See the Electronic Fund Transfer Disclosures in your Deposit Agreement for more information about stopping payments.
6.5. Electronic Fund Transfer Disclosures. For disclosures applicable to payments made using the Bill Pay Service regarding payment frequency and amount limitations, stop payment procedures, our liability for failure to stop payment, notice of varying amounts of regular payments, our liability for failure to make transfers, our confidentiality rights and obligations, unauthorized transfers, and error resolution, see the Electronic Fund Transfers Disclosure in your Deposit Agreement.
6.6. Fees There are no fees for use of the Bill Pay Service. Any other fees you may incur in relation to a payment processed using the Bill Pay Service, such as a stop payment fee, overdraft fee or returned payment fee, may apply as disclosed in your Deposit Agreement.
6.7. Overdraft. You understand that we may, but have no obligation to, honor Bill Pay Service payment requests that overdraw your Deposit Account. It is your responsibility to ensure that your Deposit Account has sufficient funds to pay Bill Pay Service payments as you schedule them.
6.8. Authorization to Obtain Information. When you enroll in the Bill Pay Service, you agree that we and our service providers have the right to request a consumer report about you from time to time to evaluate your initial and continuing eligibility for the Bill Pay Service. You also agree that we have the right to obtain financial information regarding your account with any Payee (for example, to resolve payment issues or for verification). Information we obtain about you is subject to our Federal Privacy Notice.
6.9. Joint Accounts. If your Deposit Account is a joint account, each of you agrees that any account holder has authority to use the Bill Pay Service as it relates to the Deposit Account. We are authorized to follow the instructions of any such account holder. You are both jointly and severally liable for use of the Bill Pay Service by either or both of you.
6.10. Termination; Account Closure. You may terminate the Bill Pay Service in accordance with this Agreement. If the Bill Pay Service, or all Services, are terminated, any payment we have already processed as part of the Bill Pay Service before the requested termination date will be completed. All scheduled payments will not be processed once the Bill Pay Service has been terminated and we have had a reasonable time to process your termination request. We may terminate or suspend your access to the Bill Pay Service at any time and for any or no reason. Termination or suspension does not affect your liability or obligations under this Agreement. If your Deposit Account is closed, we will cancel all scheduled payments associated with the Bill Pay Service. It is your responsibility to make all your payments to Payees by other means when payments are cancelled upon termination or suspension of the Bill Pay Service or closure of your Deposit Account.
7. Disclaimer of Warranties. YOU AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTY SERVICE PROVIDERS) IS AT YOUR RISK AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF ANY ONLINE OR MOBILE BANKING SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT ANY ONLINE OR MOBILE BANKING SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE MAKE NO WARRANTY THAT THE RESULTS THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE OR, EXCEPT AS REQUIRED BY LAW, THAT ANY ERRORS IN ANY ONLINE OR MOBILE BANKING SERVICE OR TECHNOLOGY WILL BE CORRECTED.
YOU FURTHER ACKNOWLEDGE THAT THERE ARE CERTAIN SECURITY, CORRUPTION, TRANSMISSION ERROR AND AVAILABILITY RISKS ASSOCIATED WITH USING OPEN NETWORKS SUCH AS THE INTERNET, AND TELECOMMUNICATION LINES OR CIRCUITS. YOU HEREBY ASSUME ALL OF THE FOREGOING RISKS.
YOU AGREE THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR THE SERVICE.
8. Limitation of Liability. We are not liable to you for any damages or losses that you may suffer or incur in connection with the Services, including, without limitation, any failure to provide, or delay in providing, access to the Services, except: a) as specifically stated in this Agreement; b) to the extent such damages or losses are solely and proximately caused by our gross negligence or willful misconduct; or c) as required by applicable law.
Without limiting the foregoing, except as required by law, we shall not be liable to you for any of the following: a) any damages, losses, costs or other consequences caused by our actions that are based on information or instructions you provide; b) any actions initiated or caused by you or your agents or representatives; c) any refusal of a payor financial institution to pay a Check deposited using the MCD Service for any reason (other than that caused by our gross negligence or willful misconduct), including without limitation, that the Check was unauthorized, counterfeit, altered, or had a forged signature; d) your or any other parties' inability to transmit or receive data; e) if you do not comply with your representations or warranties in this Agreement. Our liability for errors or omissions with respect to the data transmitted or printed by us in connection with this Agreement will be limited to correcting the errors or omissions and performing any other duties required by law. With respect to the MCD Service, correction will be limited to reprocessing, reprinting and/or representing the Checks to the payor financial institution.
The limitations of liability and remedies in this Section are in addition to, and not in lieu of, other limitations or remedies contained elsewhere in this Agreement.
EXCEPT AS OTHERWISE PROVIDED BY LAW OR YOUR AGREEMENTS WITH US, YOU AGREE THAT IN NO EVENT WILL WE OR ANY THIRD PARTY SERVICE PROVIDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES INCURRED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE USE, INABILITY TO USE, OR THE TERMINATION OF THE USE OF ANY ONLINE OR MOBILE BANKING SERVICE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF WE OR ANY THIRD PARTY SERVICE PROVIDER HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF.
YOU ACKNOWLEDGE THAT, IN PROVIDING THE SERVICES, WE MAY UTILIZE AND RELY UPON CERTAIN THIRD PARTY SERVICE PROVIDERS TO PROVIDE SERVICES TO US. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR RIGHTS UNDER THIS AGREEMENT SHALL BE SOLELY AND EXCLUSIVELY AGAINST US, AND YOU SHALL HAVE NO RIGHT OR RECOURSE AGAINST ANY THIRD PARTY SERVICE PROVIDER HEREUNDER WHATSOEVER, AND YOU HEREBY WAIVE ANY AND ALL SUCH RIGHTS OR RECOURSE, DIRECTLY OR INDIRECTLY, AGAINST ANY THIRD PARTY SERVICE PROVIDER.
9. Your Indemnification Obligation. You understand and agree that you are required to indemnify us and hold us harmless against any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys' fees and other legal expenses arising from your use of the Services and/or breach of this Agreement, unless otherwise prohibited by law. You understand and agree that this paragraph shall survive the termination of this Agreement.
You understand and agree that you are required to indemnify all of our service providers, and hold all of our service providers, their parents, subsidiaries, affiliates, directors, officers, shareholders, employees and agents, harmless from and against any third party claims, suits, proceedings, actions or demands, including claims of another financial institution, business entity or governmental authority, and all losses, liabilities, damages, fines, penalties, costs, and expenses, including court costs and reasonable attorneys' fees and other legal expenses, arising from such claims, to the extent any such claim is related to us or your use of the Services, or our service providers' applications, unless such claim directly results from an action or omission made by us or said applications in bad faith, or otherwise is prohibited by law. You understand and agree that this paragraph shall survive the termination of this Agreement.
10. Waivers. We will not be deemed to have waived any of our rights or powers under this Agreement unless such waiver is in writing and such writing is signed by an authorized representative of the Bank. No delay, extension of time, compromise or other indulgence that may occur or we may grant from time to time under this Agreement will impair our rights or powers under this Agreement.
11. Amendment. We reserve the right to modify the Services and this Agreement from time to time. We will generally send you advance notice of the change. If a change is favorable to you, however, we may make the change at any time without advance notice. In most cases, you will receive the notice through the Services; however, we reserve the right to notify you by email or by U.S. Postal Service mail, in our discretion. You may decline a change by notifying us prior to the change's effective date to discontinue the Services. If you do not accept and agree to the change, you will not be entitled to use the Services. However, if you do not terminate the Services and you use the Services on or after the effective date of the change(s), you will be deemed to have accepted and agreed to the change(s), and the changes to the Services and the Agreement, as amended, will become legally binding upon you.
12. Notices. All notices from us to you shall be in writing and shall be made either via email, U.S. Postal Service mail or messages delivered through the Services, at our discretion. Any written notice that we give to you will be effective when it is deposited in the U. S. mail or delivered to you to the email address in our records or made available for you through the Services. If your Deposit Account is a joint or multiple party account, notice from us to any one of you is notice to all of you.
Unless otherwise provided in this Agreement, any notice from you to us must be in writing. Any written notice that you give us will be effective when it is actually received by us, provided we have a reasonable opportunity to act on it. You may notify us by emailing us at email@example.com or writing to us at: Brilliant Bank a division of Equity Bank, PO Box 782378, Attention Deposit Processing, Wichita, KS 67278, or telephoning us at 833-605-1037.
13. Assignment. You may not assign any of your rights, duties and obligations under this Agreement. We may assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors, service providers, or other third parties.
14. Governing Law. This Agreement is governed by, and is subject to, the laws of the state of Kansas, without regard to its choice or conflicts of laws provisions, except that the arbitration provision is governed by and subject to the Federal Arbitration Act.
15. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of such provision in other jurisdictions, and of the remaining provisions of this Agreement in all jurisdictions, will not in any way be affected or impaired.
16. Entire Agreement. In the event of any inconsistency between your agreements with us, the provisions of this Agreement shall control with respect to the matters within the scope of this Agreement. You agree that the most current version of this Agreement as it appears on our website, including any amendments that we may make from time to time, constitutes the entire agreement between us with respect to the Services. Any prior or contemporaneous agreements, representations, statements, negotiations, undertakings, promises or conditions, whether oral or written, with respect to the Services which conflict with the provisions in this Agreement are superseded by this Agreement.
17. Address Change. You agree to promptly notify us in writing of any change in your contact information, including U.S. Postal Service mailing address and email address.
18. Termination or Discontinuance. In the event you wish to discontinue the Services, you must contact us in writing. Such notice of service discontinuance must be supplied ten (10) days prior to the actual discontinuance date and must be sent to: Brilliant Bank a division of Equity Bank, Attn: Electronic Services, PO Box 782378, Wichita, KS 67278. We may terminate the Services at any time and/or revoke your right to use any part of the Services. Neither termination nor discontinuation shall affect your liability or obligations under this Agreement.
19. Arbitration. You and we agree in this Arbitration and Waiver of Class Action ("Arbitration Agreement") that you and we shall attempt to informally settle any and all disputes arising out of, affecting, or relating to the Services, this Arbitration Agreement or any other aspect of your relationship with us, whether the dispute is in contract, tort, statute, or otherwise (hereafter referred to as the "Claims"). If that cannot be done, then you agree that any and all Claims shall be resolved by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its applicable rules and procedures for consumer disputes ("Rules"). The Rules can be obtained on the AAA website free of charge at www.adr.org. Any determination as to whether this Arbitration Agreement is valid or enforceable, including, without limitation, whether a Claim is subject to arbitration, shall be made solely by the arbitrator; provided, however, the enforceability of the Class Action Waiver set forth below shall be determined by a court, and either you or we may appeal such court's decision regarding such enforceability. By agreeing to arbitration, you are waiving your right to a jury trial.
19.1. Federal Arbitration Act. This Arbitration Agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act set forth in Title 9 of the U.S. Code.
19.2. Arbitration Proceedings. Either you or we may elect to resolve a particular Claim through arbitration, even if one of us has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court. Arbitration proceedings shall be conducted within 50 miles of your residence at the time the arbitration is commenced. The arbitrator may award remedies permitted by applicable law, including injunctive relief, and shall give effect to applicable statutes of limitation. Discovery shall be available for non-privileged information to the fullest extent permitted under the Rules. The arbitrator's decision shall be final and binding, and either party may seek entry of the arbitrator's award as a judgment in court. We will pay for any filing, administration, and arbitrator fees imposed on you by the AAA or any other applicable arbitration forum. You and we each shall be responsible for its own attorneys' fees, except as awarded by the arbitrator in accordance with applicable law.
19.3. Other Proceedings. Nothing contained in this Arbitration Agreement shall prevent either you or us from (i) bringing any Claim in small claims court, so long as such Claim remains in small claims court, (ii) applying to any court of competent jurisdiction for provisional prejudgment relief, such as a temporary restraining order, a temporary protective order, an attachment, or any other pre-judgment remedies or (iii) enforcing self-help remedies, such as setoff and repossession.
19.4. Selection of Arbitrator. Claims shall be resolved by a single arbitrator. The arbitrator shall be selected in accordance with the Rules and must have experience in the types of transactions at issue in the Claims. If AAA is unavailable to resolve the Claims, and if you and we do not agree on a substitute arbitration administrator, then you can select the arbitration administrator for the resolution of the Claims.
19.5. Class Action Waiver. ANY ARBITRATION OF A CLAIM SHALL BE ON AN INDIVIDUAL BASIS. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT ("CLASS ACTION WAIVER").
19.6. Rules. In the event of a conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall supersede the conflicting Rules only to the extent of the inconsistency.
19.7. Severability. In the event the Class Action Waiver in this Arbitration Agreement is found to be unenforceable for any reason, the remainder of this Arbitration Agreement shall also be unenforceable. If any provision in this Arbitration Agreement, other than the Class Action Waiver, is found to be unenforceable, then the remaining provisions shall remain fully enforceable.
19.8. Survival. This Arbitration Agreement shall survive the termination of the Services, any agreement between you and us, and our relationship with you.
19.9. Right to Opt-Out. You have the right to opt out of this Arbitration Agreement. To opt out, you must notify us in writing of your intent to do so within 30 days after we provide you this Arbitration Agreement. Your opt-out notice must be sent to us at Equity Bank- 7701 E. Kellogg, Wichita, KS 67207, ATTN: Senior Compliance Officer or ArbitrationOptOut@equitybank.com. Your notice of intent to opt out can be a letter that is signed by you or an email sent by you that states "I elect to opt out of the Arbitration Agreement" or any words to that effect.