Contractual waiver of Uniform Commercial Code provisions.
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(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.