Mobile Deposit Service Agreement

This Mobile Deposit Service Agreement (“Agreement”) sets forth the terms of the electronic check processing service (“Service”) offered to you by Morgan Stanley Private Bank, National Association (“Bank”) and/or Morgan Stanley Smith Barney LLC (“MSSB” or “Brokerage”). The Service enables you to make deposits to your eligible account(s) with the Bank if you are a Bank customer, and/or to your eligible account(s) with Brokerage if you are a Brokerage customer. For the purposes of this Agreement, Bank and Brokerage will be referred to as “us” and “we,” and your account with Bank or Brokerage will be referred to as your “Account.” “You” refers to the owners of the Account. Each of you is jointly and severally responsible under the terms of this Agreement for the actions of any owner or authorized signer on your Account. THIS AGREEMENT, AND YOUR USE OF THE SERVICE, IS SUBJECT TO ARBITRATION PROVISIONS FROM YOUR ACCOUNT AGREEMENTS (DEFINED BELOW). IF A DISPUTE ARISES BETWEEN US, YOU OR WE MAY REQUIRE THAT IT BE RESOLVED THROUGH ARBITRATION, RATHER THAN BY OTHER LEGAL PROCESS. PLEASE REVIEW THE ARBITRATION PROVISIONS IN YOUR ACCOUNT AGREEMENTS (INCLUDING ANY APPLICABLE ARBITRATION OPT-OUT PROCEDURES).

This Agreement incorporates, supplements, and supersedes where inconsistent as applied to the Service, the terms of your Morgan Stanley Private Bank Deposit Account Agreement (for customers with Bank Accounts), and/or the E*TRADE from Morgan Stanley Client Agreement of Self-Directed Accounts (for customers with Brokerage Accounts) (collectively, the “Account Agreement”).

1. Our Service

You can use our Service to deposit checks (“Checks”) to your Account with us electronically. In order to use this Service, you must be able to access your Account electronically, and you will need a physical device and supported operating system that will enable you to take readable pictures of the front and back of each check and transmit both pictures to us. We will use those images and other information you provide about the check (e.g., its amount) to process your deposit. In some cases, we may create and process a substitute paper check (a “Substitute Check”) based on the information you provide. In other cases, we may process the transaction electronically.

Certificate of Deposit (CDs), Investment-Only (Non-Custodial) Retirement Accounts, E*TRADE Futures accounts, and Home Equity Lines of Credit (HELOCs) are not eligible for Mobile Check Deposit.

The Service may not be used to deposit Checks to certificates of deposit (CDs), Investment-Only (Non-Custodial) Retirement Accounts, or E*TRADE Futures accounts, or to make payment on any debt Accounts (e.g., mortgage installment loans, home equity lines of credit (HELOC), or securities-based lines of credit).

2. Eligibility

In order for you to use and access our Service, you must meet the following requirements: You must have agreed to the terms of the Service as set forth in this Agreement.

You must be a qualified Brokerage or Bank customer. Your use of the Service must not have been terminated or suspended under Section 17 of this Agreement.

3. Security Procedure

You will be required to have a valid user ID and password (collectively “Password”) for online access to your Account in order to use and access our Service. We also will provide you with operating instructions and system requirements (“User Instructions”) in connection with the Service. You agree to: (a) comply with the User Instructions; (b) take reasonable steps to safeguard the confidentiality and security of the Password and the User Instructions (in addition to any other requirements set forth in your Account Agreement); refrain from disclosing your Password to anyone that is not an owner or authorized signer for your account; notify us immediately if you have any reason to believe the security or confidentiality required by this provision has been or may be breached; and (c) immediately change your Password if you know or suspect that the confidentiality of the Password has been compromised in any way. Our security procedures are not designed for the detection of errors in information you provide to us. We will not be obligated to detect errors by you, even if we take certain actions from time to time to do so.

We may elect, at our discretion, to verify the authenticity or content of any transmission by placing a call to any owner or authorized signer on your Account. We may deny access to and use of the Service without prior notice if we are unable to confirm to our satisfaction any person’s identity or authority to access the Service or if we believe such action is necessary for security or other risk-prevention reasons. You agree to be responsible for any transmission or transaction we receive through the Service, even if it is not authorized by you, provided it includes your Password or is otherwise processed by us in accordance with this security procedure.

4. Using the Service

You agree to: (a) implement any changes or upgrades to your equipment that we require for the Service; (b) follow our User Instructions and Service instructions for capturing and transmitting Check images; (c) clearly mark “For electronic deposit” above your endorsement on all Checks deposited through the Service; (d) write “Electronically Processed” on the front of your Check once we confirm it has been accepted for deposit; (e) retain original Checks for no more than forty-five (45) days following our confirmation of their receipt; (f) after forty-five (45) days, either destroy original Checks or conspicuously and indelibly mark “Void” on the front of them; and (g) provide us with the original Checks that are still within your possession (or sufficient copies of the Checks) within five business days of our request. A “sufficient copy” of a Check is a paper reproduction of an original Check that accurately represents all of the information on the front and back of the original Check as of the time the image was transmitted to us by means of the Service. Once we confirm our receipt of Check information, you agree that you will not attempt, directly or indirectly, to negotiate, deliver, transfer or deposit the original Checks (or copies of such Checks, whether in paper or electronic form) with us or others. You agree to store original Checks and any copies of such Checks in a secure manner so that others cannot gain access to them, and to notify us immediately if you believe the security of such Checks has been compromised. You agree to shred or otherwise destroy original Checks so that they cannot be copied or reconstructed after forty-five (45) days. The provisions of this section shall survive the termination of this Agreement.

5. Certain Checks Not Permitted

You may use the Service only to deposit original paper Checks that are payable only to one or more of you, Morgan Stanley Private Bank, National Association, or MSSB. You may not use the Service to deposit:

  • Checks payable to others (even if endorsed over to you);
  • Checks made payable to a modification of the name listed on your account (e.g. payee must match the account registration);
  • Demand drafts or remotely created Checks (e.g., Checks lacking the original signature of the person authorizing the Check);
  • Substitute Checks (e.g., paper Checks created from an electronic image);
  • Starter Checks;
  • Loan Checks or Line of Credit Checks;
  • Credit Card Checks;
  • Checks that are irregular in any way (e.g., where the numerical and written amounts are different);
  • Checks that have previously been returned unpaid for any reason;
  • Checks that are postdated or more than six months old;
  • Checks drawn on a foreign bank or payable in a foreign currency;
  • Checks payable to “Cash”, if the check is drawn from a third party account;
  • Checks you suspect may be fraudulent or not properly authorized;
  • Money Orders or Traveler’s Checks;
  • Checks totaling more than $250,000 to be deposited into all your Accounts on any single business day.

Our processing of any of the Checks described above will not obligate us to continue that practice, and we may stop doing so without cause or prior notice.

We reserve the right to refuse to accept any Check for deposit, with or without cause, or may elect to take a Check on a collection basis only, and we will not be liable to you for any damages if we take either action. If we accept a Check on a collection basis, we will send it to the institution upon which it is drawn, but will not credit your Account for the amount until we receive the funds from the other institution. If we elect to credit your Account before then, we may charge the amount back against your Account if we do not receive payment for any reason. Please see your Account Agreement for other terms related to deposits.

6. Your Representations

You represent the following with respect to each Check: (a) You have the legal right to accept the Check for deposit and negotiation, regardless of the name of the payee shown on the Check. (b) The images and information that you transmit accurately represent all of the information on the front and back of the original Check, including (without limitation) all endorsements, at the time of transmission. (c) You have not taken any action that would obscure, alter or impair the capture or transmission of information on the front or back of the Check or that otherwise may prevent us or another bank from capturing or processing such information. (d) You make all warranties that would otherwise apply to the Check if it had been a paper item deposited with us. (e) You make all encoding, transfer, presentment and other warranties that we or any correspondent bank we use are deemed by law to provide to others (e.g., as a reconverting bank). (f) The Check will not be presented for deposit or payment more than once. (g) The Check is not prohibited by Section 5 “Certain Checks Not Permitted”. (h) The images you transmit do not contain any viruses.

7. Hours of Operation

You can access the Service 24 hours a day, seven days a week, except when our system is unavailable due to needed maintenance or system outages. Deposit information received on or after our Service cutoff hour (4:00 p.m., Eastern Time) or on a Saturday, Sunday or federal holiday may be deemed received by us as of the next business day. We are not responsible for the unavailability of the Service or any damages that may result from its unavailability.

8. Confirmations

We will provide you with an electronic confirmation and reference number at the end of each successful transmission, confirming our receipt of your deposit information. We also will provide you with a notification, advising you of the status of your transaction. If you do not receive a confirmation, it may mean that we did not receive your transmission or that there was a problem with some of the information. If Check information received by us is not complete and otherwise usable for any reason, we may reject the deposit, notwithstanding any confirmation by us of its receipt, and charge the amount back against any provisional credit to your Account. We also reserve the right to reject any transmission, with or without cause, and we will not be liable to you for any damages if we do so. We are also not responsible for images or other files that we do not receive or are dropped during the transmission.

9. Availability of Funds

If we confirm our receipt of your deposit information on a business day before our Service cutoff hour, we will consider that day to be the day of your deposit; otherwise, your Check will be considered deposited as of the next business day. We will make funds from your Check deposits available to you in accordance with the timeframes and in the amounts set forth in your Account Agreement. If the maker of a Check or another third party makes a claim against us or seeks a re-credit with respect to any Check processed through this Service, we may provisionally freeze or hold aside a like amount in your Account pending our investigation and resolution of the claim. We also may charge your Account for any Check that is returned, whether or not the return is timely or proper. If a Check is returned to us for any reason, we may return it to you in the form of a substitute check. If you decide to redeposit the returned item, you may only redeposit the substitute check; you may not deposit the original Check.

10. Charges

We do not impose a fee to use the Service; however other fees and charges may apply pursuant to your Account Agreements (e.g., returned deposits fees). You agree to pay all taxes, tariffs and assessments, if any, levied or imposed by any governmental authority in connection with the Service. You are solely responsible for the cost of any network connection fees, communication lines and other charges payable to third parties.

11. Limitations on Our Liability

Except as otherwise stated in this Agreement, we will be liable to you only for damages arising directly from our intentional misconduct or gross negligence in the performance of the Service. We will not be responsible for any loss, delay, cost or liability which arises, directly or indirectly, in whole or in part, from:

(a) your actions or omissions, or those of third parties who are not within our immediate and reasonable control;

(b) your negligence or breach of any Agreement with us;

(c) any ambiguity, inaccuracy or omission in any information provided to us;

(d) any error, failure or delay in the transmission or delivery of data, records or Checks due to a breakdown in any computer or communications facility;

(e) accidents, strikes, labor disputes, civil unrest, fire, flood, water damage (e.g., from fire suppression systems), or acts of God;

(f) causes beyond our reasonable control;

(g) our inability to confirm to our satisfaction your identity or the authority of any person to act on your behalf;

(h) your failure to provide us with complete and correct Check images and data in accordance with this Agreement and our Service instructions;

(i) the return of any Check by the institution upon which it is drawn;

(j) the unavailability of the Service for any reason; or

(k) any information that is lost, intercepted or destroyed during its transmission to us.

Our aggregate liability to you for claims relating to this Agreement or the Service, whether for breach, negligence, in tort or otherwise, shall not exceed the lesser of your direct damages or the amount of the Check(s) in question. We will not be responsible under any circumstances for special, indirect, or consequential damages that you incur as a result of our actions or omissions, even if we are aware of the possibility for such damages. Any claim, action or proceeding by you to enforce the terms of this Agreement or to recover for any Service-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs (two (2) years if you reside in Texas). You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Service.

12. Indemnification

You will indemnify, defend, and hold us and our Service vendors harmless against any and all actions, proceedings, liabilities, losses, costs (including attorneys’ fees) and claims, including (without limitation) warranty claims, that result from or arise in connection with: (a) our processing of Checks in accordance with this Agreement; (b) your actions or omissions, including your breach of any representation or failure to comply with this Agreement; (c) your failure to comply with applicable state and federal laws and regulations; (d) actions by third parties, such as the introduction of a virus, that delay, alter or corrupt the transmission of Check images or information to us; or (e) any claim by a recipient of a Substitute Check corresponding to a Check processed through the Service, that the recipient incurred a loss due to (i) the receipt of the Substitute Check instead of the original Check, or (ii) multiple payments with respect to the same original Check, based on any combination of the original Check, the Substitute Check and/or any paper or electronic copy of either.

13. Notices

You agree to notify us immediately if you discover: (a) any error or discrepancy between your records and the information we provide to you about your Account or transactions (e.g., in a statement, confirmation, or electronic report); (b) unauthorized transactions involving any Account; (c) a breach in the confidentiality of any Password; or (d) other problems related to the Service. Unless otherwise agreed, notices required by this Agreement must be in writing. Notices to you may be mailed or sent to you at the statement, email or mailing address shown for you in our Account or Service records. Notices to us must be sent to Morgan Stanley Private Bank, National Association (for customers with Bank accounts) or E*TRADE from Morgan Stanley (for customers with Brokerage accounts), Attn. Payment Services, Department, P.O. Box 484, Jersey City, NJ 07303-0484. If you believe your Password has been lost or stolen or that someone has taken or may take money from your Account without authorization, call us immediately at 800-387-2331.

14. Compliance

You agree not to conduct any transactions that would violate the laws of any state or the United States, including the economic sanctions administered by the U.S. Treasury’s Office of Foreign Assets Control. You also agree to only use the Service for its intended purpose to deposit Checks into your Accounts, and that you will not directly or indirectly take any actions to circumvent the security or procedures for the Service.

15. Change in Terms

We may add to, delete or change the terms or this Agreement at any time, with such notice as may be required by law.

16. Other Terms

This Agreement incorporates, supplements, and supersedes where inconsistent, the terms of your Account Agreement with us. Please see that Account Agreement for further details (e.g., as to arbitration, waivers and governing law).

17. Termination or Suspension of Service

We may terminate your access to and use of this Service at any time, with or without cause. We may suspend or terminate the Service without prior notice to you if: you breach any agreement with us; we believe there has been or may be a breach in the security of the Service or unauthorized activity involving your Account; we are uncertain regarding the authorization, completeness, or accuracy of Check information sent to us; or for other risk-prevention purposes. You may terminate this Agreement and your use of the Service by providing us with seven days’ prior written notice. Any termination will not affect obligations arising prior to termination, such as the obligation to process Checks transmitted to us prior to the termination date or your obligation to indemnify us.