This service is provided to you by Industrial Credit Union and powered by a Third Party mobile technology solution owned by MFoundry, Inc. (the "Licensor").
This document consists of two contracts. BY USING THE APPLICATION AND OR SERVICES AND OR CLICKING "YES" OR "ACCEPT Terms & Conditions" YOU ARE AGREEING TO BE BOUND TO BOTH AGREEMENTS.
Section A is your agreement with Industrial Credit Union that supplements the terms of your Deposit Account Agreement.
Section B is your Mobile Banking Software License agreement with the Licensor of the software allowing you to use mobile banking and is a legal agreement between you and the Licensor.
Industrial Credit Union
MOBILE BANKING SERVICES AGREEMENT
This Mobile Banking Services Agreement ("Agreement") is between Industrial Credit Union and the Mobile user ("Customer"), and shall supplement the terms and conditions and Electronic Transfers disclosure given at account opening. Notwithstanding signing this Agreement, Customer remains subject to all of the terms and conditions of the Account Agreement, as it may be amended or changed from time to time. This Agreement sets forth additional terms and conditions governing Customer's enrollment of one or more of Customer's bank accounts to the software applications (the "Applications") that will be used in connection with providing of certain banking services ("Services") through a cellular telephone or other wireless communication device (a "Device"), and Customer's use of the Applications to access those accounts. By clicking "I Agree" on the Customer's Device or by using the Services, Customer agrees to be bound by the terms and conditions of this Agreement. The Credit Union reserves all rights not expressly granted to Customer in this Agreement. As used below, the term ("Agreement") refers to this agreement with the Credit Union as contained in Section A hereof.
1. Charges. The Services are separate and apart from any other charges that may be assessed by your wireless carrier for text messages sent to or from the Credit Union. Customer is responsible for any fees or other charges that your wireless carrier may charge for any related data or message services, including without limitation short message service.
3. Other Agreements. Customer is also subject to the terms and conditions of Customer's agreements with the provider of wireless communication services ("Carrier") for Customer's Device. The Credit Union is not affiliated or associated with the Carrier. This Agreement does not affect Customer's agreements with Carrier. Those agreements may provide for fees, limitations and restrictions which might impact Customer's use of the Services (for example, charges for data usage or short message service charges), and Customer is solely responsible for all such fees, costs, limitations and restrictions.
4. Account Ownership and Access. Customer warrants and represents that Customer is a legal owner of the accounts that have enrolled in the Services. By enrolling the accounts in the Services and conducting transactions on the accounts using the Services, Customer represents that Customer is not violating the rights of any other person, nor is the consent of any third person required for Customer to enroll in the Services or conduct transactions on the accounts. Customer is also authorized to permit Credit Union or any third party vendors of the Credit Union to use any information submitted by Customer to configure the Services to be compatible with the accounts and the Device.
5. Accurate Information. All information Customer provides Credit Union in connection with the Services is accurate, current and complete. Customer will not misrepresent Customer's identity or account information to Credit Union. CUSTOMER AGREES THAT Credit Union WILL NOT BE LIABLE FOR ANY COSTS, FEES, LOSSES OR DAMAGES OF ANY KIND INCURRED AS A RESULT OF ANY INACCURACY, INCOMPLETENESS OR MISINFORMATION CONTAINED IN THE INFORMATION CUSTOMER PROVIDES TO Credit Union.
6. Security. Customer agrees to use the Services carefully, to keep any passwords, usernames, security information and PINs for using the Services confidential and secure and not share them with others. Credit Union shall be entitled to presume that any person using Customer's username and PIN or possessing Customer's security information is authorized to receive information about and perform transactions relating to the accounts enrolled in the Services. CUSTOMER AGREES THAT Credit Union WILL NOT BE LIABLE FOR ANY LOSS THAT CUSTOMER MAY INCUR AS A RESULT OF SOMEONE ELSE USING CUSTOMER'S PASSWORD OR ACCOUNT, EITHER WITH OR WITHOUT CUSTOMER'S KNOWLEDGE. FURTHERMORE, Credit Union IS NOT LIABLE TO CUSTOMER FOR ANY LOSSES INCURRED AS A RESULT OF THE THEFT, LOSS OR MISAPPROPRIATION OF CUSTOMER'S DEVICE OR LOSSES INCURRED AS A RESULT OF THE THEFT, LOSS OR MISAPPROPRIATION OF ANY DATA OR INFORMATION STORED ON THE CUSTOMER'S DEVICE. Customer agrees not to provide other persons with access to the Services using Customer's password, PIN, user names or security information, nor will Customer impersonate or use anyone else's password, PIN, user name or security information at any time, even if authorized by that person to do so.
7. Other Conduct. Customer will not, directly or indirectly, acting alone or in concert with others: (a) participate in or assist in any fraudulent or deceptive act or practice; (b) use of the Services or Software to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation; (d) make a statement to Credit Union that is false, misleading or inaccurate; (e) be defamatory, libelous, unlawfully threatening or unlawfully harassing; (f) interfere with or disrupt the Services, Applications or Software; (g) interfere with or disrupt the use of the Services by any other user; (h) use the Services or the Software to gain unauthorized entry or access to the systems or information of others.
8. Indemnification. Customer shall indemnify, defend, and hold harmless Credit Union and its affiliates and service providers (including all of their respective directors, officers and employees) from and against any and all claims, liability, damages, expenses and costs (including without limitation reasonable attorneys' fees, court costs and associated expenses) caused by or arising from Customer's use of the Services, the Applications and or the Software, Customer's violation of this Agreement, or Customer's violation of applicable federal, state or local law, regulation or ordinance, or Customer's infringement (or infringement by any other user of Customer's account) of any intellectual property or any third party's rights, or any claim by Customer that any person possessing Customer's User ID, password, PIN or authorization credentials did not have the authority or Customer did not properly grant authorization for the use of Customer's User ID, password, PIN or authorization credentials, or otherwise in connection with the use of or access to Customer's account(s).In the case in which Credit Union is determined to be liable, the total liability of Credit Union to Customer shall in no event exceed the greater of $10.00 or the sum of all fees paid to Credit Union for the Service.
9. Waiver of Credit Union's Liability for Certain Damages. CUSTOMER AGREES THAT Credit Union SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR ANY OTHER DAMAGES OF ANY KIND, OR FOR ANY LOSS OF FUNDS, PROFITS, BUSINESS, OR DATA, WHETHER BASED IN STATUTE, CONTRACT, TORT OR OTHERWISE, EVEN IF THEY HAVE BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES, AND CUSTOMER WILL NOT BRING ANY CLAIM AGAINST Credit Union RELATING IN ANY WAY TO THE SERVICES, APPLICATIONS OR THE SOFTWARE. Not all states permit the waiver of such damages, so this waiver may not be applicable to Customer.
10. Termination. Customer will have access to the Services until terminated by Credit Union, by Customer, or by a third party such as Customer's Carrier or Device Vendors. Customer may cancel participation in the Services by following the steps provided for in the Software, including deleting the Software from the Device or unenrolling Customer's accounts in the Services. Customer agrees that Credit Union or its third party vendors may change or cancel the Services, or may suspend Customer's access to the Services at any time without notice and for any reason, including but not limited to, Customer's non-use of the Services or the Software. Credit Union and its third party vendors shall not be liable for any modification or discontinuance of the Services. Termination shall not affect Customer's liability under this Agreement for transactions commenced or taken by Credit Union on Customer's behalf.
11. Survival. The provisions of this Agreement that by their nature are intended to survive the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.
12. Warranty Disclaimers. Credit Union EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICES, THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT.
13. Miscellaneous Provisions.
a. Construction. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and the parties expressly consent to jurisdiction and venue thereof and therein. The parties confirm that this Agreement and all related documentation is written in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.
b. Dispute Resolution. THE PARTIES AGREE THAT ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, THE SERVICES, THE APPLICATIONS AND OR THE SOFTWARE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. Such arbitration shall take place in Boston, Massachusetts, and shall be administered by the American Arbitration Association under its Commercial Arbitration Rules (and not under any other or ancillary rules or procedures such as the Supplementary Procedures for Consumer-Related Disputes or the Wireless Industry Arbitration Rules). This includes any claims Customer may assert against third parties relating to this Agreement, the Services, or the Software. The parties acknowledge that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATORS MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS' FEES). The parties waive any right they may have to proceed on behalf of or against a class, and agree that any claim, counterclaim, cross-claim or the like shall be brought on an individual basis and not consolidated with any other party's claim, counterclaim, cross-claim or the like. The arbitration award shall be in writing, shall be signed by the arbitrator(s), and shall include a reasoned opinion setting forth findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the immediately preceding paragraph or the Severability section below, if the foregoing prohibition on class arbitration is not enforced for any reason, then the arbitration clause contained above shall not be enforced and any class action claims shall be brought exclusively in the United States District Court for the District of Massachusetts, sitting in Boston, Massachusetts (or, if federal jurisdiction is lacking, in the Plymouth County Superior Court), and not in arbitration. Any demand for arbitration or claim in litigation must be filed within one (1) year of the time the cause of action accrued, or the cause of action shall forever be barred.
c. Severability. If any provision of this Agreement is declared invalid by a court or other tribunal of competent jurisdiction then such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
d. Entire Agreement. This Agreement and the Account Agreement constitute the entire agreement between Customer and Credit Union relating to the Services, and supersede any agreements between us other than this Agreement relating to the Services, and may only be amended by a subsequent written agreement posted on Credit Union's website (with subsequent use of the Services by Customer), sent to Customer by e-mail or SMS (with subsequent use of the Services by Customer), clicked through by Customer on Customer's Device or otherwise, or signed by Customer. If there are any conflicts or inconsistencies between a specific term or condition of this Agreement and a specific term or condition of the Account Agreement, the specific term or condition of this Agreement will control.
e. Notices. Any notice to be delivered to Customer shall be sent to Customer by regular mail or e-mail to the most recent address of Customer on Credit Union's records. Notices to Credit Union shall be sent by first class mail, postage prepaid to Industrial Credit Union One Liberty Square, Boston, MA 02109.
Mobile Banking Software License Agreement
1. General. Access to Industrial Credit Union Mobile Banking service via your mobile device is powered by the mobile technology solution owned by mFoundry, Inc. (the "Licensor"). The Licensor is not the provider of any of the financial services available to you through the Software (defined below), and the Licensor is not responsible for any of the materials, information, products or services made available to you through the Software.
2. Ownership. You acknowledge and agree that the Licensor is the owner of all right, title and interest in and to the mobile technology solution made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the "Software"). You may not use the Software unless you have first accepted the terms of this Agreement.
3. License. Subject to the terms and conditions of this Mobile Banking Software License ("MBSLA"), you are hereby granted a personal, nonexclusive, nontransferable license to use the Software (in machine readable object code form only) in accordance with the terms of this MBSLA and for the sole purpose of enabling you to use and enjoy the benefits of Industrial Credit Union Mobile Banking service made available via the Software. This is not a sale of the Software. All rights not expressly granted to you by this MBSLA are hereby reserved by the Licensor. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This license may be terminated at any time, for any reason or no reason, by you or the Licensor. Upon termination, you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or otherwise in your possession or control.
4. Restrictions. You shall not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.
5. Updates. The terms of this Agreement will govern any updates that replace and or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern.
6. Text Messages. Text messaging services are provided by Industrial Credit Union and not by any other third party. You and Industrial Credit Union are solely responsible for the content transmitted through the text messages sent to and from Industrial Credit Union. You must provide source indication in any messages you send (e.g. mobile telephone number, "from" field in text message, etc.) You are responsible for any text message fees charged by your wireless carrier.
7. Consent to Use of Data. You agree that the Licensor may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software. The Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies.
8. Export Restrictions. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
9. U.S. Government Restricted Rights. The Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this Agreement.
10. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS AFFILIATES OR LICENSOR'S BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, THE LICENSOR'S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. Miscellaneous. This MBSLA constitutes the entire agreement between you and the Licensor concerning the subject matter hereof. This MBSLA will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of this MBSLA is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this MBSLA are subject to the exclusive jurisdiction of the courts of California and you expressly consent to jurisdiction and venue thereof and therein. This MBSLA and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.