1. (1)

   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:

      1. (i) depository institution;
      2. (ii) switching facility; or
      3. (iii) clearinghouse as defined by Section 70A-4-104.

   2. (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:

      1. (i) lack of good faith; or
      2. (ii) failure to exercise ordinary care.

2. (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:

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

      1. (i) account holders of depository institutions;
      2. (ii) merchants;
      3. (iii) merchant customers; or
      4. (iv) others using or having access to automated teller machines, point-of-sale terminals, or both; and
   2. (b) the commissioner finds the provision is unconscionable or contrary to the public interest.

Enacted by Chapter 111, 1997 General Session