AGREEMENT
FOR AUTOMATED TELLER MACHINE CARD,
DEBIT CARD,
AND OTHER ELECTRONIC FUND TRANSFERS
By retaining, using or signing an Automated Teller Machine Card or VISA®Debit Card (collectively "Card") issued to you by New South Federal Savings Bank (hereinafter "we," "us," "our," or "Bank"), whether done by you (a New South account holder), by another person with your consent or authorization, or by any other person to whom a Card was issued at your request, or by otherwise initiating an electronic fund transfer ("EFT" or a "Transfer") or requesting us to initiate an EFT on your behalf, and in consideration of the related services performed by us, you agree with us as follows concerning such EFTs and the use of a Card at the automated teller machines ("ATM") or electronic terminals of members of any shared or interchange system in which we may now or hereafter participate (collectively, the "ATM Shared Network") or in connection with any point of sale ("POS") transaction, or otherwise, to access any Account you have with us (whether one or more, each such account is referred to as an "Account").
Types of Transfers Available- You agree that any transaction initiated or requested by you or by any other person with your authorization or consent or through the use of a Card to access any Account you have with the Bank will be subject to and governed by this Agreement and the Terms and Conditions of Your Account and the Electronic Funds Transfers - Your Rights and Responsibilities disclosure ("EFT Disclosure"). You expressly authorize us to debit your Account in the amount of any transfer through the use of a Card or EFT from your Account ordered by you or ordered by any other person with your authorization or consent or to whom a Card was issued at your request. You agree that we may treat any such transfer from an Account the same as a duly executed written withdrawal, transfer or check and that we may treat any such transfer to an Account the same as a deposit, all in accordance with the Terms and Conditions of Your Account now or hereafter in effect, or the written rules and regulations governing any other asset account. You agree that you will be obligated to us for the amount of any such Transfer from an account that has been authorized by us or our agent as of the time of such authorization, even if the transaction is not presented by us for payment until a later date. You agree that we may, from time to time, make other transactions available to you, through the use of a Card, personal identification number, or otherwise, and that all such transactions will be subject to and governed by this Agreement. You agree that we may, without notice, refuse to perform any transaction, whether requested through the use of a Card, personal identification number or otherwise.
1. Use of Card. You agree that a Card will be used solely for those types of transfers described in the EFT Disclosure and solely to access the Account or Accounts for which a Card has been encoded and any Account which has been linked to any such Account pursuant to any agreement with us. You agree not to use a Card for any illegal transaction. All transfers initiated at an ATM of the ATM Shared Network and certain debit POS transactions must be made by a Card in connection with your personal identification number ("PIN").
2. Terminal Availability - Liability Disclaimer and Limitation. Although ATMs of the ATM Shared Network and POS electronic terminals, and the computer and communication systems which operate and link them are ordinarily in proper working condition, they may from time to time, fail to operate properly. Accordingly, the Bank does not warrant, guarantee or otherwise assure to you that any particular terminal will be available or operate properly when you attempt to use it and any such warranty is hereby expressly disclaimed by the Bank. You agree, except as may otherwise be required by applicable federal or state laws, the Bank will have no liability to you for any costs, losses, or damages, including consequential damages, which you may suffer due to the unavailability at any time of any terminal. You agree not to attempt any transaction at a terminal which appears not to be operating property.
3. Personal Identification Number. With the exception of certain POS transactions initiated by a debit card, a Card can only be used in conjunction with your PIN. For your protection, your PIN is confidential. You agree: (a) to commit your PIN to memory; (b) not to write your PIN on a Card or other documents carried with a Card; (c) not to tell your PIN to any person not authorized to use a Card; and (d) to notify the Bank at once, in the manner described in the EFT Disclosure, if you have reason to believe your PIN is known by any person not authorized to use a Card.
4. Liability for Unauthorized Transfers. To the fullest extent permitted by applicable federal and state law, you agree to be responsible for all unauthorized use of a Card, except as otherwise expressly provided in this Agreement or the EFT Disclosure. An "unauthorized electronic fund transfer" means a transfer from your Account that is initiated by another person without actual authority to initiate the transfer and from which you receive no benefit. This term does not include any transfer that is initiated by a person who was furnished with a Card by you, unless you have notified us that transfers by that person are no longer authorized and we have had reasonable opportunity to act on that notification. We may require that such notification be in writing. The term also does not include a transfer you make, or made by any other person acting in concert with you, with fraudulent intent. Please refer to the EFT Disclosure for further information concerning your liability and what to do if your Card is lost or stolen.
5. Amendments. This Agreement may amended in whole or in part from time to time. Any such amendment will be affected by delivering the amendment, revised Agreement and/or notice thereof to you in accordance with applicable federal and state laws and any agreement you have with us concerning the manner of such delivery. If no federal or state law specifically governs the amendment, the amendment shall be electronically delivered to you at least 10 calendar days before the effective date.
6. Cancellation; Return of Card. You agree that we may cancel or suspend use of a Card or any EFT service (either permanently or temporarily) at any time and that we need not give you notice before doing so. You agree that a Card may not be used after it is cancelled or after the expiration date on a Card (but we may honor any such use, at our election). You agree that a Card is our property and you agree to return it to us immediately upon our request. You agree that we, any POS terminal operator or owner, or any other participant in the ATM Shared Network may keep a Card upon notice or suspicion that a Card has been used in violation of this Agreement, or has been used by an unauthorized person.
7. Overdrafts. You acknowledge that we may, at our election and without any obligation to do so, pay or authorize any Transfer even though the payment causes or will cause an overdraft to your Account. If an overdraft occurs in your Account, you acknowledge and agree that we have in addition to any rights we may have under this Agreement, all of our rights under the Terms and Conditions of Your Account governing your Account or otherwise existing under any agreement that you have with us or under applicable law.
8. Transaction Fees. You agree to pay us any transaction fees we may now or hereafter impose for Account Transfers initiated by a Card as disclosed in the Fee Schedule, as amended from time to time. These fees are fully due and payable at the time of the transaction. Please refer to the current Fee Schedule for your Account for details. You authorize us, at our election, to pay all fees mentioned in this section from your primary checking account for which a Card is encoded or any other Account you have with us. These fees may be changed by us from time to time. You may also be charged a fee by the ATM operator or any network used, and you may be charged a fee for a balance inquiry even if you do not complete a funds transfer.
9. Posting of Items; Business Days; Adjustments. Deposits and payments to your Account will be posted as provided in the Terms and Conditions of Your Account. You agree that all deposits and payments to your Account will be subject to verification, that any credit to your Account will be conditional until such item is finally collected, and that deposits and payments made via ATMs will not be immediately available for withdrawal except as described in the EFT Disclosure and, for deposits to an Account, subject to the funds availability disclosure entitled Your Ability to Withdraw Funds. To the extent permitted by applicable law, you authorize us or our agent to initiate debit or credit transfers to your Account from time to time to correct any errors to any previous debit transfers initiated to the Account or to obtain payment of your obligations to us under this Agreement. Such obligations include, without limitation, fees owed to us and Transfers initiated by a debit card that have been authorized but not yet presented for payment. At account closing, you agree that such obligations will be immediately due and payable to us and you authorize us to withhold the amount of any such obligations at Account closing.
10. Agreement. You agree to all the terms contained in this Agreement, on the back of a Card and in any agreement, including without limitation, any signature card and the Terms and Conditions of Your Account and the EFT Disclosure and Your Ability to Withdraw Funds disclosure, now or hereafter in effect, with us concerning any account which may be accessed by the use of a Card or from which you or an authorized user may initiate or request the initiation of EFT's. Use of a Card is also subject to the terms of your Overdraft Protection Personal Line of Credit Agreement, if any. In the event any provision on a Card, and this Agreement, the EFT Disclosure or in any other applicable agreement conflicts with the Federal Electronic Funds Transfer Act or with Federal Reserve Board Regulation E, or any future amendments to any of them (after the date for mandatory compliance has passed), such provision will be of no effect, and the conflicting term or provision of the Electronic Funds Transfer Act or Regulation E, as the case may be, will instead govern our agreement with you. You expressly agree that you will cause any person who initiates or requests transfers with your authorization or consent, or to whom a Card was issued at your request to comply with the terms of this Agreement and that each reference to "You" herein will also include each such person.
11. Severability; Governing Law. If any provision of this Agreement or of any writing used in connection with this Agreement is unlawful or unenforceable, each such provision or writing will be without force and effect without thereby affecting any other provision hereof. This Agreement will be governed by the substantive laws of the United States and the laws of the State of Alabama, without regard to Alabama's rules regarding conflict of laws and without regard to your state of residence or the location of any Transfer or terminal. You agree to be bound by the operating rules and guidelines of the National Automated Clearinghouse Association and the applicable local Automated Clearinghouse Association is in effect from time to time with respect to all Automated Clearinghouse ("ACH") transfers made to or from your account. You acknowledge that the origination of ACH transfers made to or from your account must comply with the provisions of United States law.
12. Arbitration. All disputes, controversies or differences between the parties which arise under or are related to this Agreement (including, without limitation, the construction, performance, or breach of any agreement) upon which an amicable understanding cannot be reached within 30 days shall, upon the written request of either party, be settled and determined by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award entered by the arbitrators may be entered in any court having jurisdiction of these matters.
The parties agree to arbitrate within thirty (30) days following the transmittal of written demand of either party to arbitrate any dispute arbitrable under this Agreement. Each of the parties shall appoint an arbitrator within thirty (30) days following notice of written demand to arbitrate, notifying the other party of the name and address of such arbitrator. The two arbitrators so appointed shall thereupon select the third arbitrator. If either party shall fail to appoint an arbitrator as herein provided, or should the two arbitrators fail to select the third arbitrator within thirty (30) days of this appointment, then, in either event, the president of the American Arbitration Association or its successor shall appoint such second and/or third arbitrator. The three arbitrators so selected shall constitute the court of the Arbitrators.
A decision
of the majority of the court of arbitrators shall be provided within
twenty (20) days of the applicable hearing and shall be final and binding. The court of arbitrators shall not be bound by legal rules of procedure
and may receive evidence in such a way as to do justice between the
parties. The court of arbitrators
shall promptly enter an award which shall do justice between the parties
and the award shall be supported by a written opinion.
The cost of arbitration, including the fees of the arbitrators,
but not including the attorneys' fees, shall be borne by the losing
party unless said court of arbitrators shall decide otherwise.
It is agreed that the provisions of this agreement relating to
the arbitration of disputes hereunder shall be governed by the Federal
Arbitration Act, 9 U.S.C.§1, et
seq. , and to the extent not in conflict with the Federal Arbitration
Act, by the Commercial Arbitration Rules of the American Arbitration
Association.