I agree that my use of any of Deltec Bank & Trust Limited (hereinafter “the Bank” which term shall include its officers, directors, employees, agents, successors and assigns) electronic banking services will be in accordance with the following terms and conditions (“Terms”) and that use of any of the Bank’s electronic banking channels signifies both my acknowledgement and acceptance of the terms and conditions below.
In this Agreement, “I”, “me”, “my”, “you” and “your” means the undersigned individual, corporation, partnership or association and such Person’s successors and permitted assigns.
These Terms apply to your use of any electronic banking service whenever you subscribe for the electronic banking service even if you subscribe after you begin to use a product.
1. Definitions and Interpretation
1.1 The following words shall have the following meaning when used in these Terms, unless the context otherwise requires:
1.1.1 Account means, where applicable, each account you open with the Bank
1.1.2 Account opening terms means in relation to each Account, the terms and conditions governing the opening and operation of the Account and related services in the jurisdiction and all supplements and additions thereto;
1.1.3 Communications means any instructions or information from, or purporting to be from, me or my email address;
1.1.4 Content means any information, reports, images, links, graphics, software or other materials made available through the Electronic Banking Services;
1.1.5 Device means computer and communications hardware, software, web internet access, other technology or means of access used from time to time for providing, supporting, accessing and/or otherwise referable to the Electronic Banking Services;
1.1.6 Electronic Banking Services or e-Banking Services means the electronic banking and other services as defined in Clause 2 that the Bank makes available to you under these Terms;
1.1.7 Electronic Instruction(s) means any communication, instruction, order, message, data, or information received by the Bank via e e-Banking Services or pursuant to e-Banking Services, or otherwise referable to your Security Codes or those of your Users (including information delivered to the Bank offline);
1.1.8 Group means the subsidiaries and affiliates of Deltec Bank & Trust Limited;
1.1.9 Mandate means all your written authorizations and mandates provided in such form and substance satisfactory to the Bank;
1.1.10 Notice has the meaning set out in Clause 19;
1.1.11 Person includes any (i) individual, corporation, firm, partnership, limited liability partnership, society, association, trade union, institution, business concern, organization; (ii) statutory body, agency or government authority; (iii) quasi-governmental, inter-governmental or supranational body; or (iv) regulatory, fiscal, taxing or other authority or organization, in each case whether local or foreign;
1.1.12 Personal Data means data which relate to an individual who can be identified (i) from the data or (ii) from data and other information which is in the Bank’s possession or is likely to come into the Bank’s possession;
1.1.13 Purposes has the meaning set out in Clause 10;
1.1.14 Security Code means and refers to any user identification, password, mobile access code, authorization number, confirmation number, confidential information, encryption key, codes, programs, mechanisms, procedures or other such codes used in connection with or to gain access to, verify or protect the security and operation of the Web Site, the Electronic Banking Services, Account or other sensitive information;
1.1.15 Transaction means any transaction or operation made or performed, processed or effected pursuant to the Electronic Instructions or otherwise through the Electronic Banking Services by you or your Users or through the Device(s);
1.1.16 Users mean the individuals or persons whom you have authorized or are deemed to have authorized to access and use the Electronic Banking Services and/or to act as your administrator(s) to administer certain administrative functions relating to the access and use of the Electronic Banking Services; and
1.1.17 Web Site means https://www.deltecbank.com and any individual internal web page linked from the said site and established and maintained by the Bank. The term “Web Site” shall not include any web site not controlled and maintained by the Bank.
2. ELECTRONIC BANKING SERVICES.
2.1 Electronic Banking Services. A range of banking and other services or facilities are provided by the Bank, from time to time, through the Web Site or through any Device, as contemplated by this Agreement and include but may not be limited to: online banking, mobile banking, SMS banking, phone banking, electronic alert, online account services, fund transfer services and online statements. In the event the Bank issues any guidelines in connection with the use of any Electronic Banking Services, the guidelines must be followed whenever anyone accesses the electronic banking service. The Bank will not be liable for any loss you incur as a result of any failure to do so.
2.2 Online Statements. The Bank may provide electronic access to periodic statements and other information or documents relating to your Account. This may be subject to your agreement to receive information by electronic communications. You will be able to view your previous Account statements for a period of twelve (12) months from the statement date. You agree and understand that you may download and save or print Account statements at your convenience so that you may access or maintain them in your personal records or in the event the Electronic Banking Services becomes temporarily or otherwise unavailable. You may receive a paper copy of your Account Statements previously obtained through your use of Electronic Banking Services at your request. A fee may apply for any additional paper copies of Account statements. A paper copy of Account statements may be obtained until the copy is no longer required to be maintained as permitted by applicable law, rule or regulation.
3. ELECTRONIC BANKING TRANSACTIONS
3.1 Using electronic equipment. When you make a Transaction with electronic equipment using a Security Code you authorize the Bank to act on the instructions entered into that electronic equipment. The Bank will treat use of the Security Code as evidence that you or an authorized Person issued the instructions (see Clause 7 (Electronic Instructions) for more details). If it is not possible to direct an electronic banking service to a specified account in accordance with the instructions you or an authorized Person gives the electronic equipment, the Bank may direct it to any account that is linked to your Security Code, Personal Data or Account information.
3.2 Availability. Electronic banking services, and certain facilities under the electronic banking services, may be available only for certain types of accounts and not others.
3.3 Eligibility. You and each authorized Person must be at least 18 years of age to use electronic banking services. Electronic banking service will only be made available to you (a) if you are recorded as the legal and beneficial owner of the account and use of the electronic banking service for the account is acceptable to the Bank, (b) that you have registered for the particular type of electronic banking service and (c) you and each authorized Person has complied with the activation procedures specified by the Bank.
4.1 Provision of Mandate. You will provide the Bank with the Mandate in writing for electronic banking services (if required) for each of your Users. If required by the Bank, you will ensure that each of your Users provide an acknowledgement in writing confirming receipt of the Security Code. Upon receipt of such Mandate and/or acknowledgement (if required), the Bank will activate access to Electronic Banking Services for you and/or your Users as soon as reasonably practicable.
4.2 Activation of Access. The Bank may not activate access to e-Banking services for you and/or your User(s) if the Bank is of the view that there is any discrepancy, ambiguity or contradiction in information submitted to the Bank. Notwithstanding the foregoing, the Bank is not obliged to check the information submitted to the Bank for any discrepancy, ambiguity or contradiction.
4.3 Powers of Users. Certain Users may be appointed by you as administrators and, as such, have greater powers to perform certain actions including changing certain configurations of the Electronic Banking Services and/or adding other Users. You are solely responsible for ensuring that your interests are adequately protected when making such appointments. The Bank may require you to execute additional forms if you wish to give a User the sole power to authorize Transactions.
4.4 Changes in Mandate. The Mandate for electronic banking services and each of your Users applies only to Electronic Banking Services. Any change to the Mandate should be made in writing given under Clause 19 and such change to the Mandate for the Electronic Banking Services will in no way affect the Mandate for any other service provided by the Bank, and vice versa.
4.5 Maintenance of Account. Your operation and maintenance of the Account (where applicable) is subject to the Account Opening Terms. If you close the Account, your ability to access the Account through the Electronic Banking Services will also be terminated.
5.1 Maintenance of Device. You will be solely responsible for purchasing, installing and maintaining your own Device(s) and other facilities for accessing and using the Electronic Banking Services. You are solely responsible for ensuring that the Device is compatible and is formatted to interface with the Bank’s systems, including without limitation, the ability to support the Security Code required by the Bank or established by you. It is your sole responsibility to monitor and regularly review the adequacy of your Device(s) and other facilities, and security arrangements protecting such Device(s) and other facilities from unauthorized access or use.
5.2 Hardware and Software Requirements. The Bank will notify you of the preferred hardware and software requirements (including updates that need to be installed) for accessing and using the Electronic Banking Services from time to time (the “Requirements”). The Bank will not be responsible for your failure to access or use the Electronic Banking Services if your Device(s) or other facilities do not satisfy the Requirements.
5.3 Changes in Requirements. The Bank may at any time upgrade or change the Requirements by giving you at least thirty (30) days’ prior notice. You will, at your own cost and expense, make any necessary upgrade or change to your own Device or other facilities to ensure continued access to and use of the Electronic Banking Services. The Bank may at your request inspect your Device or other facilities to ascertain whether you satisfy the Requirements, and you will be responsible for any costs reasonably incurred as a result.
5.4 Restrictions on Use of Software. All rights, title and interest in the software belong to the Bank or the third party vendor and, subject to the terms of the license pertaining to the software, you undertake: (a) to the extent permitted under applicable law, not to make copies of, distribute, modify or reverse engineer the software; (b) to use the software solely for the purpose of accessing and using the Electronic Banking Services in accordance with its license requirements or other documentation provided with the software; and (c) not to do or omit to do any act which would cause the Bank to be in breach of its obligations to the third party vendor, as notified to you in advance; and (d) to pay the Bank any license fee payable in respect of your use of the Software.
6 ELECTRONIC ADVICE
6.1 Provision of Electronic Advice. The Bank may allow you to receive requested prompts or notifications in respect of certain Content from time to time (the “Electronic Advice”). Such Electronic Advice will be transmitted to you using such mode of delivery as the Bank may determine from time to time. You will be responsible for any charges incurred in respect of your receipt of such Electronic Advice. Although the Bank will put in place reasonable safeguards, the Bank does not warrant the security of any Electronic Advice transmitted to you and you accept the risk of the Electronic Advice being accessed by unauthorized third parties.
6.2 No Guarantee. You acknowledge and agree that Content provided via Electronic Advice may be subject to time lags, delays and/or may be intercepted or lost and the Bank does not guarantee the delivery, timeliness or accuracy of the Electronic Advice.
6.3 Modification, Removal, Suspension or Discontinuance. The Bank may, without giving any reason, modify, remove, suspend or discontinue the provision of the Electronic Banking Services or the Content or any electronic banking channels through which the Electronic Banking Services or the Content are provided, whether in whole or in part. To the extent not prohibited by any law, regulation or the Bank’s internal policy or procedure, the Bank will, wherever possible, endeavor to provide reasonable notice or in any event, at least thirty (30) days’ prior notice to you regarding such modification, removal, suspension or discontinuance.
6.4 No Warranties. Although the Bank will put in place reasonable safeguards, the Bank does not warrant that the Electronic Banking Services, electronic banking channels or the Content will be provided uninterrupted, free from any errors, computer virus or other malicious, destructive or corrupting code, agent, program or macros, or that any defect will be corrected. No warranty of any kind, whether implied, express or statutory, is given in respect of the Content.
6.5 To the maximum extent permitted under applicable law, the Bank and/or its agents, third party providers or licensors do not warrant the accuracy, suitability, adequacy, currency, availability, reliability or completeness of any market data, and are not liable to you or anyone else for any decision made or action taken by you in reliance on any market data or for direct, indirect, incidental, special, consequential, punitive or any other losses, damages, costs or expenses whatsoever even if the Bank is advised of the possibility of such losses, damages, costs or expenses.
6.6 Usage of Content. Any Content made available to you via the Electronic Banking Services is provided for your own use and you must not link it to any web site or Content, reproduce any Content on any server, or redistribute or transmit such Content to any third party (whether for a charge or otherwise) without prior written consent from the Bank. The Electronic Banking Services may contain certain Content owned or controlled by third parties. The inclusion of such third party Content on the Electronic Banking Services does not constitute an endorsement of such third party Content, and any use of or reliance on such third party Content is entirely at your own risk.
6.7 Restrictions on Access or Usage. You acknowledge and agree that due to legal or regulatory restrictions in other jurisdictions, you: (a) may not be able to access or use certain Electronic Banking Services from such jurisdictions; or (b) may be infringing certain legal or regulatory requirements when accessing or using certain Electronic Banking Services from such jurisdictions. It is your duty to ascertain whether any such legal or regulatory restrictions exist, and the Bank will not be liable for any losses, damages, costs or expenses arising out of your inability to access or use such Electronic Banking Services or any contravention of such legal or regulatory requirements. The Bank may take steps to prevent such Electronic Banking Services from being accessed or used in any jurisdiction as the Bank may determine from time to time.
7 ELECTRONIC INSTRUCTIONS
7.1 Authorized Users. You must ensure that only Users with proper and valid authority (within any limits set by you on the relevant Users) send or transmit or authorize the sending or transmission of Electronic Instructions to the Bank via the Electronic Banking Services.
7.2 Receipt of Electronic Instructions. The Bank is not deemed to have properly received any Electronic Instruction transmitted by you via the Electronic Banking Services until such Electronic Instruction is received by the Bank’s system hosting the Electronic Banking Services. Any Electronic Instruction received by the Bank after the relevant cut-off time on a business day (as notified to you from time to time) or on a non-business day will be treated as an Electronic Instruction received on the next business day.
7.3 Presumption of Authenticity. You authorize the Bank to treat all Electronic Instructions received as instructions or other communications properly authorized by you and binding upon you, even if made fraudulently and even if they conflict with the terms of any other instructions given by you.
7.4 Processing of Electronic Instructions. You agree and acknowledge that your Electronic Instructions may not be processed immediately, around the clock or in a timely manner but the processing is dependent, among other things: (i) on the time and day that such Electronic Instructions are received by the Bank, or the business hours of any exchange, fund manager or any other party processing your Electronic Instructions or (ii) if the Bank has reason to suspect that there is any error, fraud or forgery, or if the Bank is of the view that it is inaccurate or incomplete. To the maximum extent permissible under applicable law, the Bank will not be liable for any losses, damages, costs or expenses (whether arising directly or indirectly) which you may suffer or incur because of the Bank exercising its rights under this Clause or acting upon or relying on such erroneous, fraudulent, forged, incomplete or inaccurate Electronic Instructions. Notwithstanding the foregoing, the Bank is not required to investigate the authenticity or authority of Persons (whether Users or otherwise) effecting the Electronic Instructions or to verify the accuracy and completeness of the Electronic Instructions.
7.5 Roles and Responsibilities. You agree and acknowledge that: (a) the processing of Electronic Instructions or Transactions is subject to the Bank’s standard procedures, service standards and pricing schedules; (b) the Bank is appointed by you and not by any other party; (c) you are responsible for the accuracy and completeness of Electronic Instructions; and (d) the Bank’s role in each Transaction is limited to being the service provider of the Electronic Banking Services, and the Bank does not act as your agent or have any fiduciary relationship with you with respect to each Transaction.
7.6 Cancellation of Electronic Instructions. If you request cancellation or modification to your Electronic Instructions, the Bank will use reasonable endeavors to give effect to such request. However, the Bank is not liable to you if the Bank is unable to give effect to such request.
7.7 Adequacy of Security Procedures. You acknowledge and agree that the Electronic Banking Services provide commercially reasonable security procedures to: (a) verify that Electronic Instructions originate from you or your Users; (b) verify that Electronic Instructions are not changed during transmission to the Bank via Electronic Banking Services; and (c) indicate your or your Users intention in respect of the information set out in the Electronic Instructions, and that such security procedures are as reliable as appropriate for the purpose for which the Electronic Instructions are generated or communicated.
7.8 Request for Additional Information. The Bank may at its discretion and without giving any reason: (a) require you and/or your Users to provide alternative proof of identity; (b) require any Electronic Instructions to be confirmed through alternative means; (c) decline to act or refrain from acting promptly upon any Electronic Instructions (e.g. where the Bank needs to verify the accuracy or authenticity of the Electronic Instructions); and/or (d) determine the order of priority in effecting any Electronic Instructions, the Transactions and other existing arrangements you have made with the Bank.
7.9 Confirmation upon Processing of Electronic Instructions. Unless you receive a confirmation or acknowledgement of receipt from the Bank, Electronic Instructions sent through the Electronic Banking Services may not have been received by the Bank and accordingly, may not be carried out or processed.
7.10 Correction of Account. If any payment has been made by the Bank pursuant to your Electronic Instructions, the Bank shall be entitled, at any time, to: (a) debit the Account (where applicable) with the amount paid by the Bank; and/or (b) dishonor or return instruments and/or reverse any other payment instruction from you if there are insufficient funds available in the Account.
8.1 Compliance with Security Requirements. You must comply with all requirements, instructions and specifications relating to the Security Code as prescribed by the Bank from time to time. The Bank may from time to time require the replacement or modification of any Security Code, or terminate the use of any Security Code.
8.2 Dispatch of Security Codes. The Security Code may be dispatched by the Bank to you and/or your Users or collected by you and/or your Users using any means as the Bank may prescribe from time to time. While the Bank will take measures to ensure that such means of dispatch is reasonably reliable, you will be responsible for any loss, damage, cost or expense howsoever arising from the loss of such Security Code.
8.3 Authority of Users. You acknowledge and agree that your Users are severally and/or jointly (as the case may be) authorized to give Electronic Instructions on your behalf, even if such Electronic Instructions conflict with other orders or instructions given by you at any time, including other orders or instructions relating to the operation of your Accounts (where applicable). Your Users shall act as your agent when accessing and/or using the Electronic Banking Services.
8.4 Revocation of Authority. You must ensure that each of your Users are aware of, and comply with, these Terms. If any User is no longer authorized to access and/or use the Electronic Banking Services, you must ensure that the appointment of such User is revoked by way of a Transaction performed by your administrator, or that the Bank is otherwise notified in writing immediately.
8.5 Presumption of Authority. Unless the Bank receives written notice from you under Clauses 8.4 or 9.1, the Bank may rely and act on the correct entry of the Security Code(s) as conclusive evidence of the authenticity of an Electronic Instruction and authority of the originator of such Electronic Instruction. You are responsible and liable for all Transactions entered into or purported to be entered into on your behalf.
8.6 Responsibility for Use of Security Codes. You are responsible for the use of any Security Code issued to you or your Users. You will use your best endeavors to ensure that there is no unauthorized use of any Security Code or the Electronic Banking Services. The Security Code is to be used solely by you and/or your User. You must ensure that (a) the Security Code is kept secret; (b) not write down or otherwise record the Security Code without disguising it; and (c) change the Security Code regularly and in any event, no less frequent than ninety (90) days. You are prohibited from using your computer, browser, or other Device to store the Security Code used to authorize or authenticate your use of Electronic Banking Services.
8.7 No Tampering or Modification. You must not change, tamper or modify any part of the Bank’s system or the Security Code without the Bank’s prior written consent and you are responsible for all costs or expenses incurred by the Bank to rectify the system and/or the Security Code because of such unauthorized change, tampering or modification.
9. UNAUTHORIZED ACCESS TO SECURITY CODES
9.1 Notice Regarding Unauthorized Access. You must immediately notify the Bank in writing if you reasonably believe that any Security Code is lost, damaged, compromised or if there has been any unauthorized disclosure or use of the Security Code. The Bank will provide an acknowledgement confirming receipt of such notice as soon as reasonably practicable. The Bank is not deemed to have received such notice unless the Bank acknowledges receipt in writing, whether via email or otherwise.
9.2 Actions Upon Receipt of Notice. Once the Bank receives any Notice given under Clause 19, the Bank will:
9.2.1 as soon as reasonably practicable suspend or terminate the compromised Security Code(s); and
9.2.2 use reasonable endeavors to stop the processing of outstanding Electronic Instructions originating from the compromised Security Code. Without prejudice to the generality of Clause 8.5, you will be bound by all Transactions arising from Electronic Instructions which the Bank relied upon before such suspension or termination, or the processing of which the Bank is unable to stop.
9.3 Replacement of Security Codes. Following the occurrence of any event referred to in Clause 9.1, the Bank may issue replacement Security Codes to you and charge a replacement fee.
10 DISCLOSURE OF ACCOUNT INFORMATION AND PERSONAL DATA
10.1 Protection of Confidentiality. The Bank will take all commercially reasonable precautions to preserve the integrity and confidentiality of information relating to you and your Account(s) (where applicable) provided to the Bank pursuant to these Terms.
10.2 Information received from you. In the course of providing Electronic Banking Services to you, the Bank may process Personal Data relating to you which may include but is not limited to:
10.2.1 Information relating to personal contact details, date of birth addresses and telephone numbers;
10.2.2 National Identification Numbers and copies of national identification documents;
10.2.3 Employment details, income and source of wealth/funds;
10.2.4 Details of investments and assets, account numbers, transaction data, reports and statements, balances and investment holdings; and
10.2.5 Credit references
10.3 Associated Accounts. In the event your Account or Security Code is connected electronically to other accounts or relationships with members of the Group for any purpose, including but not limited to viewing information, securities settlement or funds transfer, you understand and consent to certain Personal Data and Account information about your Account and associated accounts and client relationships being made available and displayed to authorized Persons accessing your Account through Electronic Banking Services.
10.4 Information specific to e-Banking Service. When you use the Bank’s Electronic Banking Service, the Bank may collect and store certain information used for internal reporting and audit purposes which may include but is not limited to: usernames and passwords; internet protocol (IP) addresses; browser information, date and time stamps.
10.5 Information specific to e-Banking App Services. When you use the e-Banking App which is a part of the e-Banking online platform, the Bank may collect the following information:
10.5.1 Submitted information: information that you provide by filling in forms, either electronically or manually by hand. This includes information provided at the time of registering to use the App Service. The Bank may request further information if you report a problem;
10.5.2 Additional information: if you contact the Bank, the Bank may keep a record of that correspondence;
10.5.3 Device information: the Bank may collect information about the device or any computer you may use to download or stream a copy of the app onto your device, including, where available, the device’s unique device identifiers, operating system, browser type and mobile network information as well as the device’s telephone number for system administration. The Bank may associate device information with submitted information and will treat the combined information as Personal Data for as long as it is combined; and
10.5.4 Location information: when you use one of the Bank’s location-enabled App Services, the Bank may collect and process information about your actual location. Some of these App Services require your Personal Data for the feature to work. If you wish to use the particular feature, you will be asked to consent to your data being used for this purpose. You may withdraw your consent at any time using the app’s settings.
10.6 Disclosure to Specified Recipients Permitted. Notwithstanding Clause 10.1, you acknowledge and agree that the Bank, its officers, employees and agents may be required to provide or disclose any information whatsoever relating to you, your use of the Electronic Banking Services, the Transactions and your Account(s), including Personal Data in the following circumstances:
10.6.1 to any other companies which are at the time of disclosure a member of the Group; parent, subsidiary or affiliate of the Bank (“the Group”);
10.6.2 to third parties who provide services to the Bank or that act as agents (or prospective third party service providers or agents). Such service providers and/or agents may also disclose such information to their service providers or agents. The Bank or any member of the Group will take all reasonable steps to ensure that the service provider or agent is subject to appropriate data processing requirements and that they impose such requirements on any of their service providers or agents;
10.6.3 to any prospective or actual successor, assignee or transferee of, or participant in, any of the Bank’s rights or obligations under these Terms;
10.6.4 to any court of competent jurisdiction, regulatory or governmental authority;
10.6.5 to any Person to the extent necessary for complying with applicable laws and regulations or with any order, directive or request in any jurisdiction which the Bank is required to, or which the Bank in good faith believes that it should, comply with, including to assist in the prevention of terrorism, money laundering, financial crimes or other illegal activities;
10.6.6 to any Person or financial organization to the extent necessary for the purpose of giving effect to any Electronic Instructions;
10.6.7 to the Bank’s agents, auditors, service providers and professional advisors (and those agents, auditors, service providers and professional advisors of other companies within the Group);
10.6.8 to licensed credit reference agencies or other similar organizations to enable the Bank and others to make credit decisions, or in the course of carrying out identity and fraud prevention or credit control checks;
10.6.9 to third party Anti-Money Laundering (“AML”) and Counter-Terrorist Financing (“CTF”) partner agencies that may be used by the Bank for the sole purpose of ensuring proper AML and CTF due diligence requirements (collectively “the Recipients”)
10.6.10 otherwise if you consent to such disclosure.
10.7 Recipients Outside Jurisdictions. You acknowledge and agree that the Bank may be required to provide or disclose information pursuant to Clause
10.5 to Recipients whose principal place of business is outside the jurisdiction. Such information may be held, processed or used by the Recipients in whole or part outside the jurisdiction.
10.8 Processing of Personal Data in connection with Specified Purposes. Without prejudice to Clauses 10.5 and 10.6, you acknowledge and agree that the Bank (and each of the Recipients) can hold, process or use any Personal Data provided pursuant to your and each User’s access to and use of the Electronic Banking Services in connection with:
10.8.1 the provision of Electronic Banking Services and for any other purpose connected with your or your Users’ access to or use of the Electronic Banking Services;
10.8.2 the notification of relevant products or services to you unless you have told the Bank that you do not wish to receive marketing materials or notices;
10.8.3 the monitoring and analysis of Accounts and positions;
10.8.4 the assessment and determination of Account criteria, status, limits and credit decisions; 10.8.5 the monitoring and enforcement of compliance with these Terms; and 10.8.6 to comply with applicable laws, including anti-money laundering and anti-terrorism laws, (collectively, the “Purposes”).
10.10 Duty to Obtain Consent. You undertake to inform all individuals whose Personal Data is supplied to the Bank and/or the Recipients:
10.10.1 of the Purposes for which such Personal Data will be processed and the risks associated with the supply and processing of such Personal Data (such notification to be made by you on or before the time at which such Personal Data is first supplied to the Bank); and
10.10.2 that such processing may involve transfer of such Personal Data to the Recipients, and you must ensure that such individuals have agreed to the terms of this Clause 10 and accepted the risks associated with the supply and processing of such Personal Data. The foregoing applies likewise to any sensitive Personal Data provided by you to the Bank and/or the Recipients in connection with your or your Users’ access to or use of the Electronic Banking Services.
10.11 Applicability of Disclosure of Information Provision in Account Opening Terms. For the avoidance of doubt, nothing in this Clause 10 shall prejudice the application of any disclosure of information or other similar provisions in the Account Opening Terms. To the extent that both these Terms and the Account Opening Terms govern disclosure of any information, disclosure of such information would be permitted to the extent the Bank has the right to do so under these Terms, or the Account Opening Terms, or both.
10.12 Disclosure Rights Under Laws. The Bank’s rights under this Clause 10 shall be in addition and without prejudice to, any other rights of disclosure, which the Bank may have under any applicable laws and regulations and nothing herein is to be construed as limiting any of those rights.
11 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
11.1 No Rights Transferred. You acknowledge that, except as expressly provided under these Terms or other agreements between the parties, you do not acquire any proprietary or intellectual property rights in any Content, information, data, software or other materials provided by the Bank in connection with Electronic Banking Services (including the Security Code). To the extent that you may acquire any such rights, you agree to (a) transfer and assign these rights to the Bank and (b) sign any additional documents the Bank may require to effect this.
11.2 Confidentiality of Data Transmitted. Any data, information or message transmitted to you through the Bank’s system and/or via the Electronic Banking Services is confidential and intended for the sole use of the intended recipient. If you are not the intended recipient, you should immediately notify the Bank and delete or destroy such data, information or message (and all copies).
11.3 Confidentiality of Other Information. You must keep, and must ensure that any Person given access keeps confidential, all information about the Electronic Banking Services, the Bank’s system, the Security Code and any Content. You may only disclose such information to your Users and employees only to the extent strictly necessary for the proper use of the Electronic Banking Services.
12 REPRESENTATIONS AND WARRANTIES
12.1 You represent and warrant at all times that:
12.1.1 all information that you provide to the Bank in connection with the Electronic Banking Services (including your particulars and those of your Users) is complete, true and accurate;
12.1.2 you are (i) validly existing; (ii) not insolvent; and (iii) legally capable of entering into and performing your obligations under these Terms and any applicable laws; and
12.1.3 you have satisfied all conditions and performed all actions required to be taken in order to (i) enable you to lawfully enter into and perform your obligations under these Terms and any applicable laws; and (ii) ensure that those obligations are valid, legally binding and enforceable.
13 INDEMNITIES AND LIMITATION OF LIABILITY
13.1 Assumption of Risks. You acknowledge there are certain security, corruption, transmission error and availability risks associated with using the Electronic Banking Services and agree, to the maximum extent permitted under applicable law, to assume such risks.
13.2 Limitation of Liability. To the maximum extent permitted under applicable law, you acknowledge and agree that the Bank and each of its providers are not liable to you for:
13.2.1 any indirect, consequential, special or punitive loss or damage arising from the provision of the Electronic Banking Services, whether arising based on a claim in contract, tort (including negligence), breach of statutory duty or otherwise;
13.2.2 any losses, damages, costs or expenses (whether direct or indirect, and whether foreseeable or not) which you may suffer or incur, whether arising based on a claim in contract, tort (including negligence), breach of statutory duty or otherwise, arising from (i) any unavailability of the Electronic Banking Services, (ii) your access or use or your inability to access or use the Electronic Banking Services, the Web Site or the Content, (iii) the installation and/or use of the software; (iv) failure of the Bank’s system and/or Security Code, (v) any information in relation to the system and/or the Content being inaccurate in any manner whatsoever, (vi) any failure to receive or delay in receiving Electronic Instructions because of any failure of your Device or other facilities or the telecommunication links used to transmit the Electronic Instructions, (vii) any delay where the contents of an Electronic Instruction are ambiguous, incomplete or otherwise inaccurate, (viii) any unauthorized use of the Security Codes or the Electronic Banking Services; (ix) any breach of security or unauthorized use of, corruption or transmission error associated with, your Device or other facilities, (x) any act or omission of telecommunications carriers, internet service providers or any other third party provider or sub-contractor of the Bank, (xi) the exercise of any of our rights under these Terms, (xi) the Bank’s reliance on such information submitted; or (xiii) any loss of revenue or business opportunities, loss of profit, loss of anticipated savings or business, loss of data, loss of goodwill or loss of value of any equipment including loss of anticipated savings or business, loss of data, loss of goodwill or loss of value of any equipment including software; or (xiv) any event or circumstance beyond the Bank’s control, including any governmental restriction, intervention or imposition of emergency procedure or suspension of trading by any relevant market, civil order, act or threatened act of terrorism, natural disaster, war or strike.
13.3 Liability Arising from Use of Providers. You acknowledge and agree that the Bank may use the providers to carry out any of the Electronic Banking Services. To the maximum extent permitted under applicable law, the Bank is not liable for any default on the part of such providers.
13.4 Indemnities. To the maximum extent permitted under applicable law, excepting fraud, gross negligence or willful misconduct, you agree to hold harmless and indemnify the Bank from and against any claim, demand, action or proceeding which may be made against the Bank and any losses, damages, costs or expenses (including legal fees) which the Bank may incur or suffer (directly or indirectly) because of:
13.4.1 any breach or non-compliance by you of or with these Terms including any failure to obtain consent pursuant to Clause 10.9 above and any breach of the representations and warranties specified in Clause 12 above;
13.4.2 any unauthorized use by any party of the Security Code or any failure by you or any authorized User (a) to maintain adequate security measures for the Security Code and/or Device or (b) to ensure the physical security of the Device used;
13.4.3 any failure or malfunction of your Device used in connection with the Electronic Banking Services;
13.4.4 any computer viruses or other malicious, destructive or corrupting code, agent, program, macros or other software routine or hardware components designed to permit unauthorized access which have been introduced by you, which affects or causes the Electronic Banking Services and/or the Bank’s hardware, software and/or other automated systems to fail or malfunction;
13.4.5 any information or documents furnished by you to the Bank, which is or proves to have been incorrect or misleading in any material respect when provided;
13.4.6 the exercise of the Bank’s rights under these Terms;
13.4.7 the Bank acting or relying on the Electronic Instructions; or
13.4.8 your use or failure to use the Electronic Banking Services,
13.5 Compliance with Legal Obligations. The Bank can act in compliance with any order of court, judgment or arbitral award served upon the Bank in relation to any Transaction, without your approval. The Bank may act pursuant to the advice of counsel with respect to any matter relating to these Terms, and to the maximum extent permitted under applicable law, will not be liable for any action taken or omitted in accordance with such advice.
13.6 Liability Arising from Compliance with Legal Obligations. In addition, the Bank is not liable for any loss, liability, delay or cost incurred by you as a result of the Bank taking such action as is necessary to comply with any legal or regulatory obligations in the jurisdiction in which the Bank operates or otherwise.
14. FEES AND CHARGES
14.1 Payment of Charges. You must pay all charges, costs and expenses associated with the provision of Electronic Banking Services and any and all ancillary services in accordance with the Bank’s fee schedule as published from time to time or as otherwise agreed between the parties and any other sums which you have agreed to bear under these Terms. You shall make all payments under these Terms free and clear of, and without deduction, withholding or set-off on account of any tax or levy or any other charges present and future.
14.2 Debiting of Charges from Account. You authorize the Bank to debit such charges, costs, expenses and sums from any of your Account(s) with the Bank (where applicable), even if such debiting may result in your Account being overdrawn. If such charges, costs, expenses and sums are debited from your Account denominated in another currency, you agree that the Bank may convert the amount to be debited using the Bank’s prevailing exchange rates. You undertake to execute and furnish the Bank with such additional written authority as the Bank may require to effect such payment.
14.3 Liability for Taxes. In addition, you will be liable for any stamp tax, value-added tax or any other tax of a similar nature chargeable by law on any payment you are required to make to the Bank. If the Bank is required by law to collect and make payment in respect of such tax, you will indemnify the Bank against such payments.
15.1 You may terminate your use of Electronic Banking Services or withdraw any particular Account subscribed for Electronic Banking Services upon providing thirty (30) days’ written notice to the Bank.
15.2 The Bank may, at any time and without liability to you terminate your access to the Electronic Banking Services by giving you not less than thirty (30) days’ written notice. No such termination will affect any Electronic Instruction given by you or an authorized User which is properly received by the Bank before expiry of such notice.
15.3 Effect of Termination. If either party gives notice to terminate access to or use of the Electronic Banking Services, you agree that at least 24 hours before the expiry of such notice of termination:
15.3.1 you will stop using any Security Code in respect of the Electronic Banking Services;
15.3.2 you will preserve all data pertaining to or received via the Electronic Banking Services and all software provided by the Bank (including any copies you have made) from your system unless otherwise notified by the Bank. If the Bank requires you to destroy or delete any such data, you must do so in accordance with any data removal procedure that the Bank may prescribe; and
15.3.3 you will forthwith pay all charges, costs and/or expenses due to the Bank under these Terms.
15.4 Termination or Suspension of Access. Despite anything else in these Terms and without prejudice to any other rights or remedies which the Bank may have under these Terms or at law, the Bank may, in its sole discretion, and without liability to you immediately terminate or suspend your access to the Electronic Banking Services and/or stop the processing of any Transaction if the Bank is of the reasonable view that it would be in the Bank’s interest to do so, including where:
15.4.1 you are in breach of these Terms or any other agreement with the Bank;
15.4.2 such action is required to fulfil the Bank’s legal or regulatory obligations or to comply with an order of a court of competent jurisdiction or the Bank’s internal policies and procedures;
15.4.3 you are insolvent, unable to pay your debts as they fall due, have a receiver, administrator or manager appointed over the whole or any part of your assets or business, make any composition or arrangement with your creditors or an order or resolution is made for your dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction);
15.4.4 any relevant license or authorization which is required in order for the Bank to satisfy these Terms, provide the Electronic Banking Services or operate the system, is terminated or suspended;
15.4.5 you are or become subject to a regulatory investigation or inquiry and/or legal proceeding whereby continuing to offer the Electronic Banking Services to you is (in the Bank’s reasonable opinion) likely to raise reputational issues; or
15.4.6 such action is required in order to protect the Bank’s system from harm, including from any form of denial of service attack or from viruses or malicious codes.
15.5 Continuing Effect. The termination of your access to and use of the Electronic Banking Services will not affect any provision of these Terms which is capable of being performed and/or which survive, operate or continue to have effect after such termination. Termination will not prejudice any right of action already accrued to a party in respect of any breach of these Terms by the other party.
16. FORCE MAJEURE
16.1 The Bank shall not be responsible for any failure or delay in performing any of its responsibilities to you or for any loss or damage arising directly or indirectly in relation thereto where such failure or delay occurs by reason of circumstances beyond the Bank’s control including without limitation, labor difficulties or troubles, mechanical breakdowns, flood, fire, explosion, earthquake or similar catastrophe, acts of god, acts of government or of any regulatory authority or agency or failures of transportation, communication or power supply (each a “Force Majeure Event”). The Bank’s responsibilities to you hereunder shall be suspended for so long as the Force Majeure Event continues and the Bank agrees to notify you of the commencement or cessation of a Force Majeure Event. Either party may terminate the relationship if the Force Majeure Event continues for more than three months after the commencement thereof by written notice to the other party.
17. ACCEPTING RECORDS
17.1 Acceptance of Bank Records as Conclusive. Except for manifest error, you accept the Bank’s records of any Electronic Instruction, Transaction or other Communication between you and the Bank as final and conclusive and binding on you for all purposes.
17.2 Notice Regarding Inaccurate Records. You must inform the Bank of any discrepancy or inaccuracy in any Electronic Advice, statement or record that you receive from the Bank within thirty (30) calendar days from the date of such statement or record. If you fail to do so, you will no longer have the right to dispute the contents of such statement or record and such statement or record shall be regarded as being final and conclusive and binding on you. It is your duty to maintain a copy of such Electronic Advice, statement or record on file.
17.3 Admissibility of Records. To the maximum extent permissible under applicable law, you agree that all such records are admissible in evidence and will not dispute the accuracy or the authenticity of the contents of such records merely on the basis that such records were produced by a computer system.
18.1 You acknowledge and agree that:
18.1.1 the software for Electronic Banking Services is provided "as is" and, to the maximum extent permitted under applicable law, all representations, warranties, conditions and other terms implied by statute, common law or otherwise in respect of the software are excluded from these Terms (including, without limitation, the implied conditions, warranties or terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care).
18.1.2 certain electronic banking channels may only be accessed and used by specified Users. You further acknowledge that the Electronic Banking Services, the Content and the electronic banking channels are provided on an “as is”, “as available” basis only and that the time periods during which the Electronic Banking Services may be available are subject to change. Neither party is liable if any communication is delayed, intercepted, lost or otherwise failed to reach the other party during the process of delivery, transmission or dispatch, or the contents of any communication is disclosed to any third party during the process of delivery, transmission or dispatch.
18.1.3 Electronic Banking Services may be limited to specific amounts or values set by law, by the Bank or by the owner or operator of the electronic equipment. For example, there may be maximum and minimum daily withdrawal amounts that may vary.
19.1 Consent to Receive Electronic Notice. You agree that the Bank will provide notices, information or other communications by electronic communications to you by emailing such notices or information to your registered electronic mail (“E-mail”) address or through notification on the e-Banking App. You further agree that you will maintain and regularly check your registered E-mail address and you will be responsible from printing and saving any important information that you receive from the bank electronically. You may withdraw your consent to receive information electronically at any time upon providing written notice to the Bank.
19.2 Addresses for Notices. All notices, demands or other communications required or permitted to be given under these Terms (the “Notices”) must be in writing. Such Notices shall be delivered by facsimile or by electronic mail addressed:
19.2.1 in the case of a Notice to you, to the facsimile number or electronic mail address last registered with the Bank; and
19.2.2 in the case of a Notice to the Bank, using the appropriate address and other contact details provided by the Bank to the Client from time to time. Communications from you to the Bank shall be deemed to have been received upon acknowledgment of receipt by the Bank.
19.3 Receipt of Notices. You are deemed to receive any Notice sent by the Bank in respect of the Electronic Banking Services (a) if delivered personally, at the time of delivery; (b) if sent by prepaid registered post, twenty (20) business days after posting; (c) if sent by facsimile, at the time shown in the transmission report as being successfully sent; and (d) if sent by email, at the time the Bank sends it to your last registered email address.
19.4 Duty to Update. You must promptly inform the Bank in writing of any change in your mailing address, fax number and/or email address for communication or any of your relevant particulars available in the Bank’s records (including signature, authorized signatory and/or mandate) and send the Bank all supporting documents required by the Bank. The Bank will need a reasonable time period, not being less than 7 business days from receipt, to act and effect the change in the Bank’s records, after which, the Bank may rely on the change. You acknowledge that your consent to receive notices electronically means that you agree to provide the Bank with information needed to communicate with you electronically (including your current E-mail address).
19.5 Applicability of this Provision. This Clause relates only to Notices in respect of matters concerning these Terms and Electronic Banking Services.
20.1 Information Requests. You must promptly make available to the Bank and/or to any relevant regulatory authority any information and/or documentation (a) the Bank may reasonably request in order to fulfil its legal or regulatory obligations or any requirements which the Bank needs or agrees to comply with from time to time or (b) requested by any relevant regulatory authority. You must provide upon reasonable request such assistance or cooperation as the Bank may require in connection with any investigation or dispute resolution process.
20.2 Account Review. The Bank reserves the right to inspect and conduct an audit to ensure that you have complied with your obligations under these Terms and you must forthwith comply with such requests and render all necessary help to the Bank. If any non-compliance is discovered as a result of such review, you will be responsible for any costs reasonably incurred in respect of the review and any remedial action.
20.3 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms or provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.
20.4 Other Terms and Conditions. In addition to these Terms, the Account Opening Terms (where applicable) and the Bank’s General Terms and Conditions governing other services provided to you, will, unless otherwise specified in writing, continue to apply and bind you. Except as set out in such terms, the parties do not have any rights against each other in relation to, and have not relied on, any oral, or written representation, warranty or collateral contract made before the date of your application for Electronic Banking Services. If there is any conflict between such General Terms and Conditions and these Terms, the terms shall prevail in the following order of priority unless otherwise expressly stated: (i) the Bank’s General Terms and Conditions governing other services provided to you and (ii) the Account Opening Terms.
20.5 Amendments and Variations. The Bank reserves the right to amend these Terms at any time. You will be informed of such amendments in writing or in any other appropriate manner of communication. The Bank will ordinarily give you at least thirty (30) days’ notice of any changes. However, the Bank may implement changes without notice if the Bank determines that such changes are necessary to comply with any legal or regulatory requirements or to improve the Electronic Banking Services provided to you by the Bank. If you or any User continue to use the Electronic Banking Services after the effective date of such change, you are deemed to have agreed to the same.
20.6 Assignment and Transfer. Use of and access to the Electronic Banking Services is personal to you. You may not assign or otherwise dispose of any benefit which you may receive under these Terms to any third party without the written consent of the Bank. The Bank may transfer any or all of its rights and obligations under these Terms without notice to or consent from you to a member of the Group or otherwise. Upon completion of the transfer, the transferee will assume all transferred rights and obligations from the date of the transfer. In addition, the Bank may, without notice to or consent from you, delegate or sub-contract any rights or obligations under these Terms to any third party, and appoint third party providers, agents or sub-contractors to provide the whole or part of the Electronic Banking Services. In connection with any assignment by the Bank, you hereby irrevocably consent to the disclosure of information pertaining to you and this Agreement in connection with such transfer or assignment. You acknowledge that the Bank has not made any representation, warranty, or covenant to you with respect to the transfer or assignment of all or any part of this Agreement.
20.7 Governing Law and Exclusive Jurisdiction. These Terms and any obligations arising therefrom are governed by and construed in accordance with the laws of the Commonwealth of The Bahamas. Unless the Bank elects otherwise in writing, all disputes arising from or in connection with these Terms shall be resolved before the courts of the Commonwealth of The Bahamas, and you agree to submit to the jurisdiction of the Courts of the Commonwealth of The Bahamas.
20.8 Waiver. No forbearance, delay or indulgence by the Bank enforcing Terms shall prejudice or restrict its rights. No waiver of rights shall operate as a waiver of any subsequent breach, and no right, power or remedy herein conferred upon or reserved for the Bank is exclusive of any other right, power or remedy available to the Bank and each such right, power or remedy shall be cumulative, unless otherwise expressly stipulated in these Terms.
You acknowledge that you have received electronically a copy of this Agreement.
Your access to and use of the Website and Electronic Banking Services available through the Website is subject to compliance with all the terms set forth in this Agreement. Please read the Agreement carefully before you click on your acceptance thereof. If you are not willing to be bound by the terms and conditions of the Agreement, you should not click on your acceptance thereof or use the Website or Electronic Banking Services.
By clicking on the button marked “I Agree” or by your use of the Website, Electronic Banking Services or Online Statements, you are signifying your acceptance of this Agreement and your intention to be bound by it as follows:
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.