§ 7-16a-203. Contractual waiver of Uniform Commercial Code provisions.

(1)

(a) Subject to Subsections (1)(b) and (2), if the application of Title 70A, Uniform Commercial Code, is inconsistent with the operation of an automated teller machine, a point-of-sale terminal, or both, the requirements of Title 70A, Uniform Commercial Code, may be varied by contractual agreement of any:

(i) depository institution;

(ii) switching facility; or

(iii) clearinghouse as defined by Section 70A-4-104.

(b) A contractual agreement under Subsection (1)(a) may not disclaim responsibility for or limit the measure of damages for a depository institution's, switching facility's, or clearing house's:

(i) lack of good faith; or

(ii) failure to exercise ordinary care.

(2) Notwithstanding Subsection (1)(a), the commissioner may, after notice and hearing, require rescission or modification of any provision of a contractual agreement permitted by Subsection (1)(a) if:

(a) that provision relates to the rights and obligations of:

(i) account holders of depository institutions;

(ii) merchants;

(iii) merchant customers; or

(iv) others using or having access to automated teller machines, point-of-sale terminals, or both; and

(b) the commissioner finds the provision is unconscionable or contrary to the public interest.

Enacted by Chapter 111, 1997 General Session