The following are the terms and conditions of use (“Terms and Conditions”) of the mobile banking application (“Mercantil Mobile”) offered by Mercantil Commercebank, N.A. (referred to herein as “Mercantil Commercebank”, “the Bank”, “we”, or “our”). These Terms and Conditions shall govern the relationship between any person (referred to herein as “you” or “your”) who accesses or uses any feature of Mercantil Mobile, and the Bank; including the use of the software application that is compatible for use on (i) the iPhone® mobile devices, iPod®Touch mobile devices, iOS Touch ID, Apple Watch® and other devices operating on the Apple® mobile operating system, and/or (ii) mobile devices operating on the AndroidTM, and other wireless web-enabled cell phones, tablet computers, personal digital assistants, and/or any other type of electronic mobile device that may be compatible with Mercantil Mobile from time to time (“Mobile Device”). These Terms and Conditions shall also govern the use of the mobile check deposit (“Mobile Check Deposit”), and other services of the Mercantil Commercebank Personal Online Banking (“Personal Online Banking”) that are available to you through Mercantil Mobile such Mercantil Commercebank Credit Card and Loan payments, Transfers Between Own Mercantil Commercebank Accounts, Third Party transfers to Mercantil Commercebank customers and Bill Pay (Bill Payment), among others.
By using Mercantil Mobile, you are agreeing to comply with and be legally bound by the Terms and Conditions set forth herein. If these Terms and Conditions are not acceptable to you, please do not use Mercantil Mobile.
1. General Terms
a. Mercantil Mobile is a service available to the customers of the Bank with a Mobile Device and a User ID that provides account access online using Mercantil Mobile. You can enroll to obtain account information and make selected transactions using your Mobile Device. Mercantil Mobile may not have all of the features of the Mercantil Commercebank website available to you, and consequently, it may be required that you sign-in directly through the Personal Online Banking in order to access all of the features and services offered by Mercantil Commercebank therein. You may be required to visit Mercantil Website in order to register as a user of Mercantil Mobile before you start using the application. Also, we recommend you visit Mercantil Website in order to obtain information about the compatible Mobile Devices and instructions about the enrollment process and the use of Mercantil Mobile.
b. Mercantil Mobile will not work unless you use it properly. You accept responsibility for making sure that you understand how to use Mercantil Mobile before you actually do so. You also accept responsibility for making sure that you know how to properly use your Mobile Device and its software. We may change or upgrade Mercantil Mobile from time to time. In the event of such changes or upgrades, you are responsible for making sure that you understand how to use Mercantil Mobile as changed or upgraded. The Bank will not be liable to you for any losses caused by your failure to properly use Mercantil Mobile or your Mobile Device. We reserve the right to modify the scope of Mercantil Mobile at any time. We reserve the right to refuse to make any transaction you request through Mercantil Mobile. You agree and understand that Mercantil Mobile may not be accessible or may have limited utility over some mobile networks, such as while roaming.
c. You must have the ability to receive and retain electronic communications if you decide to enroll and use Mercantil Mobile. You agree to receive notices and information about Mercantil Mobile electronically.
2. Relationship to Other Agreements
a. You agree that when you use Mercantil Mobile, you will remain subject to all Personal Online Banking agreements and the terms and conditions of your accounts, in addition to all of your existing agreements with the Bank (jointly “Other Banking Agreements”) including, but not limited to, the Personal Online Banking Agreement, Understanding Your Deposits disclosure, the Funds Transfers Agreement, and the Electronic Funds Transfers disclosure; and that the Terms and Conditions do not amend or supersede any of those agreements. Any agreement you may have with our affiliates and/or any unaffiliated service providers, including, but not limited to, your mobile service carrier or provider, also remain in full force and effect. You agree that only your mobile service carrier or provider is responsible for its products and services. Accordingly, you agree to resolve any problems with your carrier or provider directly with such carrier or provider without involving us. You also agree that if you have any problems with Mercantil Mobile, you will contact us directly.
3. Mobile Check Deposit
The following terms of this Section 3 (“Mobile Check Deposit Terms”) will govern your use of the Mobile Check Deposit service that may be available to you as part of Mercantil Mobile features, and are incorporated by reference in and made a part of the Terms and Conditions if you use the Mobile Check Deposit service.
a. Procedure. The Mobile Check Deposit allows you to make deposits of certain checks to your Mercantil Commercebank deposit accounts remotely by using Mercantil Mobile and transmitting images of such checks to us in compliance with our requirements. If we accept the image for collection, we will then attempt to collect the item by presenting the image or converting the image to a substitute check. Unlike traditional check deposits, you retain the original paper check when you use the Mobile Check Deposit, and you will remain responsible to retain, storage, and manage the original checks in compliance with these Mobile Check Deposit Terms. We may change, modify, add, or remove all or portions from Mobile Check Deposit Terms at any time, with or without notice to you.
b. Eligibility and Termination. We will determine whether you are eligible for Mobile Check Deposit in our sole discretion. We may suspend or terminate your use of Mobile Check Deposit at any time and without prior notice to you. If you violate the Mobile Check Deposit Terms or the Terms and Conditions, then we also may use such actions as a basis to terminate your account relationship with us. In the event of suspension or termination of your use of the Mobile Check Deposit, you will remain liable for all transactions performed on your account.
c. Check Requirements. Any image of a check that you transmit to us must accurately and legibly provide all of the information on the front and back of the check at the time of presentment to you by the drawer. Prior to capture the image of the original check, you will restrictively endorse any item transmitted through Mobile Check Deposit as “For deposit only, Mercantil Commercebank account #______” or as otherwise instructed by the Bank. You agree to follow any and all other procedures and instructions for use of the Mobile Check Deposit as the Bank may establish from time to time. The image of the check transmitted to us using Mobile Check Deposit must accurately and legibly provide, among other things, the following information:
i. your endorsement;
ii. the information identifying the drawer and the paying bank that is preprinted on the check, including complete and accurate information about the bank code, account number, check number, and any other information contained in the bar code;
iii. the signatures; and
iv. other information placed on the check prior to the time an image of the check is captured, such as any required identification written on the front of the check and any endorsements applied to the back of the check.
The image quality of the check must comply with the requirements established from time to time by the Bank, the Board of Governors of the Federal Reserve Board, including the requirements under federal Regulation CC, or any other regulatory agency, clearing house or association. The Mobile Check Deposit may reject your deposit if the image is not satisfactory. Receipt of the image by the electronic system does not guarantee that the Bank will accept the image.
d. Eligible Checks. You agree to capture and deposit only “checks” as that term is defined in Federal Reserve Regulation CC. You agree that the image of the check transmitted to the Bank shall be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code. You agree that you will not transmit and deposit any of the following types of checks or other instruments which shall be considered ineligible items for purposes of Mercantil Mobile:
i. Checks payable to any person other than you;
ii. Checks that have been altered in any way, or that you know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the check is drawn;
iii. Checks payable to you jointly with one or more other persons, unless deposited into an account in the name of all payees;
iv. Checks that contain evidence of alteration to the information on the check;
v. Checks previously converted to a “substitute check”, as defined in Reg. CC;
vi. Checks that are remotely created checks, as defined in Reg. CC;
vii. Checks drawn on a financial institution located outside the United States;
viii. Checks not payable in United States currency;
ix. Checks dated more than 6 months prior to the date of deposit;
x. Checks payable on sight or payable through drafts, as defined in Reg. CC;
xi. Checks with any endorsement on the back other than that specified in these Mobile Check Deposit Terms;
xii. Checks that are drawn or otherwise issued by the U.S. Treasury Department;
xiii. Checks that have previously been submitted through Mobile Check Depositor through the Mobile Check Deposit service offered at any other financial institution, or that have otherwise been deposited with the Bank or any other financial institution, including checks that have been returned unpaid;
xiv. Checks that are “non-negotiable”;
xv. Traveler checks;
xvi. Personal money orders;
xvii. Cashier’s checks.
e. Amount Limits. The following amount limits apply to your use of the Mobile Check Deposit:
i. The maximum amount per single deposit may not exceed US $3,500;
ii. The aggregate amount of your combined deposits may not exceed US $3,500 per day;
iii. The aggregate amount of your combined deposits may not exceed US $7,500 per calendar month.
You agree that you will not make deposits through Mobile Check Deposit in excess of these limits. The Bank may refuse to accept and process any deposits that exceed these limits. In addition, the Bank reserves the right, from time to time, and in its sole discretion, to change these limits or impose additional limits or restrictions.
f. Availability of Funds. You understand that following our receipt and processing of the image, funds from the check will be made available for your withdrawal and/or use at a future time, in accordance with our funds availability policies. You also understand that credit is provisional until settlement is final.
For purposes of determining the availability of funds, checks deposited via Mobile Check Deposit are considered received by the Bank when the Mobile Check Deposit system effectively delivers the checks to the Bank in order to be processed.
All checks deposited via Mobile Check Deposit on Monday through Thursday after 5:00 p.m. local time, Friday after 6:00 p.m. local time or on a Saturday, Sunday, or a bank holiday, will be processed by the Bank on the next business day. The term “business day” shall mean every Monday through Friday, excluding Federal Reserve holidays.
g. Collection of Check Images. The Bank may in its sole discretion determine the manner in which we will seek to collect a check image deposited by you via Mobile Check Deposit. Without limiting the generality of the preceding sentence, the Bank may, at its option: (i) present or transfer the check image to the paying bank, a Federal Reserve Bank, image share/exchange network, or other collecting bank; (ii) create a substitute check from the check image and collect the substitute check; or (iii) request that you provide to the Bank the original paper check from which the check image was created and then collect the original paper check.
h. Deposit and Destruction. The Bank advises you to store the original checks you submit through the Mobile Check Deposit until you see the deposit post as ‘available’ to your account. Once ‘available’ in your account, please mark your check as ‘void’ or destroy it. You further agree that you shall be solely responsible for the original checks, including storage, retrieval, annulment and destruction. You will provide the Bank with any original checks that are still in your possession (or a sufficient copy) within five (5) business days of the Bank requesting the same in order to resolve claims or to aid in the clearing and collection process.
You agree that after the check has been copied and submitted for deposit through the Mobile Check Deposit, you shall not otherwise transfer or negotiate the check, substitute check, or any other image thereof.
You agree to notify the Bank of any suspected errors regarding items deposited through the Mobile Check Deposit right away, and in no event later than sixty (60) days after the applicable account statement is sent by Mercantil Commercebank. Unless you notify the Bank within sixty(60) days, such statement regarding all deposits made through Mobile Check Deposit shall be deemed correct, and you will be prohibited from bringing a claim against the Bank for such alleged error.
i. Place of Deposit. You understand and agree that, for purposes of deposits made using the Mobile Check Deposit, the place of deposit is Miami-Dade, Florida.
j. Warranties and Indemnification. You represent and warrant the following with respect to each image of a check that you transmit through Mobile Check Deposit:
i. The check image is an eligible check in accordance with Section 3.d of these Terms and Conditions;
ii. The check transmitted through Mobile Check Deposit is made payable to you;
iii. You have the legal right to accept the check for deposit and negotiation;
iv. The check transmitted to the Bank is a true and correct image of the original paper check and has not been altered in any manner by you or any third party acting on your behalf;
v. You have not taken any action that would alter or impair the capture or transmission of the information on the front or back of the check;
vi. You will not transmit any check if you are aware of any facts or circumstances that may impair the collectability of that check;
vii. You have reviewed and confirmed that the image captured is identical in all respects to the original paper check and that the amount of the check captured is accurate;
viii. You will not re-deposit or re-present the original check;
ix. All information you provide to the Bank is accurate and true;
x. You will comply with these Mobile Check Deposit Terms, the Terms and Conditions, and all applicable rules, laws and regulations in using the Mobile Check Deposit;
xi. You will use Mobile Check Deposit in accordance with all instructions provided by Mercantil Commercebank, including those set forth herein with respect to the retention and management of original checks.
You agree to indemnify, defend, and hold Mercantil Commercebank, its vendors and licensors harmless against any and all actions, proceedings, liabilities, losses, costs (including attorney’s fees), penalties, and claims, including (without limitation) warranty claims, that result from or arise in connection with:
i. Mercantil Commercebank’s processing of check images and associated deposit information in accordance with the Mobile Check Deposit Terms and the Terms and Conditions;
ii. Your breach of any warranty or failure to comply with the Terms and Conditions; and,
iii. Multiple payments with respect to the same original check.
We reserve the right to charge back to your account at any time, any check that was subsequently returned to us or that we subsequently determine was not an eligible check. You agree that the Bank is not liable for any loss, costs, or fees you may incur as a result of our chargeback of an ineligible item.
k. Cooperation with Investigations. You agree to cooperate with us in the investigation of unusual transactions or poor quality transmissions, and in the resolution of claims related to checks transmitted through Mobile Check Deposit, including by providing, upon request, without further cost, and in accordance with Section 3.h. of the Mobile Check Deposit Terms, any originals or copies of items deposited through the Mobile Check Deposit service in your possession and your records relating to such checks and transmissions.
4. Transfers and Payments
The following terms of this Section 4 will govern your use of the Transfers and Payments services (“Transfer and Payments Services”) that may be available to you as part of Mercantil Mobile features, and are incorporated by reference in and made a part of the Terms and Conditions.
a. Generalities. Certain transactions initiated using Mercantil Mobile may constitute electronic funds transfers under federal law and regulation. Please review the Funds Transfers Agreement issued by the Bank for important information on your rights and responsibilities when making transactions using Mercantil Mobile, including the instructions for reporting unauthorized electronic fund transfers. You may only receive information about and/or make transfers between the accounts that are linked to your Mercantil Commercebank Personal Online Banking account. You may only make bill payments to payees that are included in the Mercantil Commercebank, N.A. bill payment Merchant Directory or to other personal payees and/or Mercantil Commercebank Credit Cards and Loans that you previously set up in your Personal Online Banking account. The standard limitations on transfers and bill payments apply to transactions made through Mercantil Mobile, as more fully explained in the Other Banking Agreements. There may be certain restrictions applicable to the loan advances made on eligible Mercantil Commercebank Loans that could affect their availability through Mercantil Mobile. Please referrer to your loan terms and conditions for more information.
b. Amount Limits. The following amount limits apply to your use of the Mercantil Commercebank Wire Transfers to U.S. Banks:
i. The maximum amount of each transfer may not exceed US $2,000
ii. The aggregate amount of all transfers may not exceed US $6,000 per calendar month.
There are no daily and/or aggregated monthly limits to the amount of funds transferred between your own accounts at Mercantil Commercebank.
You agree that you will not make transfers or payment through the Mobile Banking in excess of these limits. The Bank may refuse to accept and process any transfer that exceed these limits. In addition, the Bank reserves the right, from time to time, and in its sole discretion, to change these limits or impose additional limits or restrictions.
c. Transfers and Payments Fees. The following fees applies to the Transfer and Payment Services:
i. There is a U.S. $5 fee for each transfer made to a third party at Mercantil Commercebank.
ii. There is a U.S. $35 fee for each Wire Transfers to U.S. Banks.
iii. There are no fees for the use of Online Bill Pay.
iv. There are no fees for transfers or payments made for a Mercantil Commercebank Credit Card or Loan.
v. There are no fees for fund transfers between your accounts at Mercantil Commercebank.
d. Transfers and Payments Availability of Funds. You understand that following our receipt and processing of the funds transfers, they will be made available for your withdrawal and/or use at a future time, in accordance with our funds availability policies. You also understand that credit is provisional until settlement is final.
5. Other Fees
a. Except for those fees listed in Section 4.c. above and other fees that may apply in accordance with the Personal Online Banking Agreement and the Mercantil Commercebank Miscellaneous Services Fees, there is no charge from the Bank to download or use Mercantil Mobile. However, the telecommunications carrier may impose connectivity or usage fees for your Mobile Device. Fees as provided in your Other Banking Agreements, if any, still apply.
6. License and Restrictions
a. Mercantil Mobile, and all the materials contained in it, are the property of Mercantil Commercebank or of non-affiliated third parties that may be hired by the Bank from time to time (each a “Third Party Licensor”) and are protected by copyright, trademark law, patent law, and any other applicable law.
b. You are granted a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license, and right for the sole purpose of your personal use of Mercantil Mobile on a Mobile Device that you own or control and as expressly permitted herein. This limited right to use Mercantil Mobile is revocable in the discretion of the Bank; the Bank and its Third Party Licensors retain all right, title, and interest in and to the Mercantil Mobile and any modifications and updates thereto. You agree not to decompile or reverse engineer any software used by Mercantil Mobile. All rights not expressly granted to you herein are reserved.
c. Except as provided above, you may not copy, display, download, distribute, modify, reproduce, republish or retransmit any information, text or documents contained in Mercantil Mobile or any portion thereof in any electronic medium or in hard copy (including posting to news groups, mail lists, or electronic bulletin boards), or create any derivative work based on such images, text, or documents, without written consent from the Bank.
d. The Bank and the Third Party Licensors reserve the right to add or delete features or functions, or to provide programming fixes, updates, and upgrades, to Mercantil Mobile. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of Mercantil Mobile.
e. The Bank and the Third Party Licensor have no obligation whatsoever to furnish any maintenance and support services with respect to Mercantil Mobile, and any such maintenance and support services provided will be provided at our discretion.
7. Statement Relating to Intellectual Property Rights of Third Parties
a. All references in Mercantil Mobile to the trade names, trademarks, and service marks of third parties, including those related to the Third Parties Licensors, belong to such parties, and are intended to accurately identify such parties as the sources of the specific products and services. The Bank makes no claim of license or interest in the intellectual property rights of such third parties. No claim of association by the Bank with any third party or its products and services is intended or should be inferred. Reference herein to any products, services, processes, hypertext links to third parties or other information by trade name, trademark, service mark, manufacturer, and supplier, or otherwise, does not constitute or imply its endorsement, sponsorship, or recommendation by the Bank.
b. You agree that the Third Parties Licensors may rely upon your agreements and representations in these Terms and Conditions, and such Third Parties Licensors are third party beneficiaries of such agreements and representations, with the power to enforce those provisions against you, as applicable, and as the circumstances or context may require.
8. Limitation of Liability
a. The Bank specifically disclaims any liability for any loss or injury resulting directly from the use of Mercantil Mobile and the Mobile Check Deposit, except when that loss or injury is a direct result of the Bank’s gross negligence or willful misconduct. In no event will the Bank be liable to any user of Mercantil Mobile or to anyone else for any decision made or action taken in reliance on the content of Mercantil Mobile.
b. THE CONTENT PROVIDED ON MERCANTIL MOBILE (INCLUDING DESCRIPTIONS OF AND REFERENCES TO PRODUCTS, SERVICES, AND PUBLICATIONS OF MERCANTIL COMMERCEBANK AND THIRD PARTIES) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. MERCANTIL COMMERCEBANK, ITS AFFILIATES, AGENTS, LICENSORS, AND SERVICE PROVIDERS, OR THEIR RESPECTIVE EMPLOYEES MAKE NO REPRESENTATIONS, AND DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING ACCURACY, TIMELINESS, COMPLETENESS, SATISFACTORY QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME,MERCANTIL MOBILESERVICE MAY BE DELAYED, INTERRUPTED, OR DISRUPTED FOR AN INDETERMINATE PERIOD OF TIME DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF MERCANTIL COMMERCEBANK INCLUDING, WITHOUT LIMITATION, ANY INACCURACY, INTERRUPTION, OR DELAY IN TRANSMISSION BY THE TELECOMMUNICATIONS CARRIER USED WITH THE ELIGIBLE MOBILE DEVICE TO ACCESS THE WIRELESS WEB, OR ANY INTERRUPTION, DISRUPTION, OR FAILURE IN THE PROVISION OF THE SERVICE, WHETHER CAUSED BY STRIKES, POWER FAILURES, EQUIPMENT MALFUNCTIONS, OR OTHER REASONS. MERCANTIL COMMERCEBANK, ITS AFFILIATES, OR A THIRD PARTY LICENSOR SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE MOBILE SERVICE ARISING FROM ANY SUCH DELAY, INTERRUPTION, DISRUPTION, OR SIMILAR FAILURE. IN NO EVENT WILL MERCANTIL COMMERCEBANK OR ANY AFFILIATE OR THIRD PARTY LICENSOR BE LIABLE FOR INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, ARISING FROM YOUR USE OFMERCANTIL MOBILE, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND NOTICE WAS GIVEN REGARDING THEM. THESE LIMITATIONS WILL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. MERCANTIL COMMERCEBANK RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERRORS, BUGS, DEFECT, OR OMISSIONS IN ANY PORTION OF MERCANTIL MOBILE APPLICATIONAND MAY MAKE ANY OTHER CHANGES TOMERCANTIL MOBILE AT ANY TIME WITHOUT NOTICE.
c. Except as otherwise required by applicable law or regulation, the Bank may terminate your use of Mercantil Mobile and expand, reduce, or suspend the type and/or dollar amounts of transactions allowed using Mercantil Mobile, change the enrollment process, and transaction limits associated with it from time to time based on security issues and other factors at any time in its sole discretion without prior notice.
d. By identifying a cell phone or other device as a Mobile Device for use with Mercantil Mobile, the Bank does not recommend, endorse, or make any representation or warranty of any kind regarding the performance or operation of such device. You are responsible for the selection of your Mobile Device and your telecommunications carrier, and for all issues relating to the operation, performance and costs associated with such device and with your telecommunications carrier.
e. By using Mercantil Mobile you accept the risk that any information may be intercepted or misdirected during transmission. The Bank bears no liability to you or others for any such intercepted or misdirected information, or in case that the information is disclosed inadvertently during the transmission.
9. Prohibit Use
a. You agree not to use Mercantil Mobile for any illegal purpose or in breach of any contract or agreement by which you are bound, and you agree to comply with all applicable laws, rules, and regulations in connection with Mercantil Mobile. You acknowledge and agree that we have no obligation to monitor, review, or evaluate your transactions for legality and that we may presume that all of your transactions are legal in all applicable jurisdictions. However, we reserve the right to decline any transaction that we believe is an illegal transaction or a high-risk transaction in any applicable jurisdiction. You agree not to use Mercantil Mobile to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction. We reserve the right to decline any transaction that we believe is an internet or online gambling transaction. You further agree that we are not responsible for the recovery or reimbursement to you of any funds transferred in connection with any transaction authorized by you that is determined to be illegal. You certify that you have legal capacity to enter into these Terms and Conditions under applicable law. You hereby represent and warrant (i) you are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
10. Confidentiality Policy
a. You acknowledge and agree that the Bank may collect, transmit, store, and use technical, location, and login or other personal data and related information, including but not limited to technical information about your Mobile Device, system, and application software, and peripherals, and information regarding your location, that is gathered periodically to facilitate the provision of Mercantil Mobile updates, product support, and other services to you (if any) related to, or in connection with, Mercantil Mobile.
b. You acknowledge that as part of Mercantil Commercebank’s obligations in regard to the privacy expectations of its customers, the Bank requires independent contractors and outside companies who work with the Bank in everyday business purposes and have access to customers’ information, to adhere to Mercantil Commercebank’s strict privacy standards, and you acknowledge that these independent contractors or outside companies include the Third Party Licensors.
11. Digital Millennium Copyright Act
a. Pursuant to 17 United States Code 512(c)(2) (Digital Millennium Copyright Act of 1998), if you believe that this Mercantil Mobile or the content contained herein infringes on any intellectual property rights, you may give notice to Mercantil Commercebank’s designated agent. The designated agent for notice of alleged copyright infringement in connection with Mercantil Mobile is:
Mercantil Commercebank, N.A.
220 Alhambra Circle
Coral Gables, FL 33134
b. To file a notice of infringement with Mercantil Commercebank, the requirements specified in Title II of the Digital Millennium Copyright Act of 1998 must be fulfilled. The text of this statute can be found at the U.S. Copyright Office website, located at http://www.copyright.gov.
12. Security Policy
a. We are confident of our system’s ability to protect all transactions; however, this is not an invitation for people to attempt unauthorized access to the system. Mercantil Mobile is a private application which is restricted to authorized individuals. Actual or attempted unauthorized use of Mercantil Mobile will result in criminal and/or civil prosecution. We reserve the right to view, monitor, and record activity on the application without notice or permission. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on the system. If you are not an authorized user of Mercantil Mobile or do not consent to continued monitoring, please exit the application at this time.
13. Dispute Resolution Procedure: Arbitration
PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES GENERALLY ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES.
a. Any dispute, claim, or controversy (“Claim”) by or between you and us (including each other’s employees, agents, or assigns) arising out of or relating to these Terms and Conditions, the Other Banking Agreements, our relationship, or the validity or scope of any provision of these Terms and Conditions, including this arbitration clause, will upon election by either you or us be resolved by binding arbitration. This applies to all Claims, irrespective of what legal theory they are based on or what remedy they seek, and whether arising in the past, present, or future. Claims and remedies sought as part of a class action, private attorney general, or other representative action, are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Arbitration may be selected at any time unless a judgment has been rendered or the other party would suffer substantial prejudice by the delay in demanding arbitration. A single, neutral arbitrator will resolve the Claim. Arbitration, including selection of an arbitrator, will be conducted in accordance with the rules and procedures of the American Arbitration Association (“AAA”). You may contact AAA at 335 Madison Avenue. Floor 10. New York. NY 10017¬-4604, 800-778-7879 (toll free), or http://www.adr.org, to obtain rules and forms to initiate arbitration. If AAA is unable or unwilling to serve as the provider of the arbitration or enforce any of the provisions of these Terms and Conditions, we may substitute another national arbitration firm with similar procedures such as JAMS. This arbitration section of these Terms and Conditions are governed by the Federal Arbitration Act (the “FAA”). Judgment upon arbitration may be entered in any court having jurisdiction. Arbitration will be conducted in the federal judicial district in which your billing address is located at the time the claim is filed; however, if your billing address is outside the United States, arbitration will be conducted in Miami-Dade County, Florida. Whoever files the arbitration will pay the initial filing fee. If we file, we will pay; if you file, you will pay, unless you get a fee waiver under the applicable rules of the arbitration firm. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. However, we will advance or reimburse your fees if the arbitration firm or arbitrator determines there is good reason for requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
b. Claims must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party.
c. If you or the Bank requires arbitration of a Claim, neither you, the Bank, nor any other person may pursue the Claim in arbitration as a class action, private attorney general action, or other representative action, nor may such Claim be pursued on your or our behalf in any litigation in any court. Claims, including assigned Claims, of two (2) or more persons may not be joined or consolidated in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are considered as one person for these purposes.
d. The arbitrator’s award will be final and binding on the parties unless a party appeals it in writing to the arbitration firm within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three (3) neutral arbitrators designated by the same arbitration firm. The panel will consider all factual and legal issues anew, follow the same rules that apply to a proceeding using a single arbitrator, and make decisions based on the vote of the majority. Costs will be allocated in the same way they are allocated for arbitration before a single arbitrator. An award by a panel is final and binding on the parties after fifteen (15) days has passed. A final and binding award is subject to judicial review and enforcement as provided by the FAA or other applicable law.
e. YOU UNDERSTAND AND AGREE THAT IF EITHER YOU, OR THE BANK, ELECT TO ARBITRATE A CLAIM. THIS ARBITRATION SECTION PRECLUDES YOU AND US FROM HAVING A RIGHT TO OR OPPORTUNITY TO LITIGATE CLAIMS IN COURT, OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION IF YOU OR THE BANK ELECT TO ARBITRATE.
a. These Terms and Conditions shall be governed by federal laws and regulations. To the extent such laws and regulations do not apply, these Terms and Conditions are governed by the laws of the State of Florida.
b. If any part of these Terms and Conditions is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
c. The Bank reserves the right to seek all remedies available at law and in equity for violations of these Terms and Conditions.