complaint most of the record for that matter is consists of some a c h statements that really are peculiar germane to the issue for the court today so the actual number of pages that you'd have to consider is probably under fifty and the crux of the agreement is that c d s is to provide set up in processing so the a t m s that are owned or operated by star financial isa the sort of a t m s that you might find in a convenience store they're not bank a t m so they're they're independent a t m so to explain how the relationship is supposed to work as well as the events that gave rise to the litigation we prepared a part that i one of the a t m subject to this agreement that a t m is stocked with cash from a bank account star financial bank account that is generally referred to by the parties as settlement account so when the customer withdraws one hundred dollars about and require you to affirmatively state that you agree to the transaction fees go off into a separate account they're not really true main here and c d s charges star financial a small fee that set in the contract for each transaction  account and put back in the star financial settlement account and the process would start all of what in fact happened for two of the machines that were subject to the is that that hundred dollars and any other amounts that were being withdrawn indeed up going into an account owned by a third party which unfortunately also has the name star it was called t c stars but it's an entirely separate operation and by the time that problem was picked up two hundred fifty thousand nine hundred dollars had gone into the wrong account and the question that was before the district court in the question before this court is whether under the contract given the circumstances that i'm about to describe there is a claim that can survive summary judgment by store financial against c d s because of the way that processing was hand i've given you some of the relevant contract provisions the contract itself is a single space and if you look at that two point one of the contract provides the general purpose up all your time on the background i understand that the light here is a section four point one one point one right and so the question is how do you do that and the way that you have to do that how to how  where the money is supposed to go the way it's supposed to find out how the money supposed to go is there's a terminal set up form that has to be provided by star financial what happened here and i've given you examples of the two set to the set up forms that are at issue here is that in the set up form star financial has to provide the identity of the settlement account the bank account that the money supposed to go and there's no dispute that it provided that information initially on august nineteenth of two thousand and fifteen for three machines and the information provided was incorrect it sending corrected set up the those machines weren't even in operation at that time right iraq they did not go into operation until november where they had some places that were under construction or how did that happen that they were put down somewhere and they wanted operating right away it's not in the record your honor i don't i don't have that answered that they were they were going to be coming online and so the set up information was being provided so that when they came online everything would be ready to go so the next day corrected a calorie to make it providing they're given credit for it to the machines yes so why did the district court rule against you but the district court sa the district court said that we were asking them to verify the information in the forms  and that's not right and that's not it's if you look it's it's page four of the district court's opinion page seven sixty six of the record what what they do what the di information in the setup sheet and money as a result had been diverted into the d c star's account that would be our loss that's what four point one says we were present and warrant that all information in the application is correct so the middle of four point one we bore you with that but it also says the last sentence of four point one says agent must immediately notify a t s in writing of any change in the information set forth in a terminal set up for but suppose we just in the middle of the operation of an a t m decided to change our settlement count we stopped operating with bank a we go to bank b we provide c d s with the correct information they're supposed to input the corrected information it's no different here in fact as judge jones who's as you pointed these a t m sworn even in operation and in fact they understood what they were supposed to do because there were three a t m s that had set up information provided through the same e mails three separate set up sheets and then three corrected set up sheets provided the next day they corrected the information for one of the three but for some reason they missed the other two so our argument is no you don't have to verify the information on the sheets but as a matter of very simple contract law when we provide you corrected information changed information we provided to you in writing paragraph four point one makes very clear at that point we've done what we need to do they simply didn't include the change at our position is that sabrina each of the contract that was our position in the district court for whatever reason and for summary judgment with the c h report so we didn't think it was appropriate for us to file across motion but we think on this particular issue there is no dispute as to the evidence the only evidence that was submitted by the point of was the contract itself and in response we submitted the evidence showing how the set up forms were originally transmitted how the corrected forms were transmitted together with an a explaining what happened that eventually we figured out that there was a problem we did some investigation and we found that these two machines had been linked to the wrong settlement account to this d c star settlement account we virginia maryland and the district of columbia but there is a venue selection clause in the contract which is why we're here and so the convenience store owner we've recovered about one hundred thousand but there one hundred fifty five that still on recovered and that's the damage that we're seeking in this case now they're also relying on paragraph four point three and nine point three are they not well we talked about me let me address the nine point three issue on nine point three we we made some argument there and they said that just relates to damages and they suggested we were seeking an advisory opinion in the only reason we raised nine point three  some damage issues in their summary judgment motion which were not addressed by the district courts i don't think nine point three is on the table of four point three has to do with again with the the question of what you can pick up from essentially line item statements i believe when we when we raise four point three in our opening brief they also said that isn't a c h report for transactions to take place in our settlement account if there's a transaction it's not taking place in our settlement account like the money's going over here it doesn't show up on the report and therefore four point three and is that your fault apparently misunderstood the argument misunderstood our position and thought that what we were saying is when we give one of these set up forms they have to verify the information that's not our position our position is when we give them information on the set up form they have to use that information when they set up the a t m within the system so that the money flows where it's supposed to go and we provided them that information we  provided set up forms that the wrong information within corrected it date acknowledged the receipt of those corrected forms they changed the set up from one of the three they did not change it for the for the other two think there was a misunderstanding could you ask for it or it's their process for asking for it there is a process of we did not ask for it we obviously in hindsight a mistake thought that it was fairly clear work we do agree that this is a fairly clear case the there are a lot that is not presented to the core but it was certainly clear for the district court and the reason why this report we believe ruled in our favor for summary judgment in this case we believe the entire factual dispute in this case comes down to essentially three sections section four point one four point two and four point three of the contract that's what was specifically relied on in our motion for summary judgment not with the analysis that the district court went through in granting the summary judgment now the appellant's they go through this process and they have demonstratives to show the court here is what happened in here is hypothetically how this hundred dollar bill process is supposed to work what what they don't show you in this demonstrative which is the key fact that issue in this case is the fact that the initial terminal set up forms were undisputedly for these three terminals incorrect and that information was provided by them to us incorrectly now what that does is that trigger certain things under this contract and four point one four point two and four point three most importantly in four point two it and if you look at their description of four point two in the demonstrative that they provide the court you'll notice that there are four point two abruptly stops and it doesn't give you the next sentence which is the key issue in this case and i believe the reason why the district court granted a summary judgment section four point two states that all settlements shall be affected through automatic clearing house transfers it is the responsibility of the agent that is star financial that is the appellant in this case to verify that all information in a terminal set up form a c h authorisation or any modification there to is correct and complete a b s has no responsibility to verify such information they get hung up on that point and say that that's what the argument about that's not what the argument is about the argument is the very last sentence in the section costs or investigation and litigation arising out of or related to any incorrect information submitted on the terminal set up form a c h authorization or any notice or change related there to that is precisely what we have here and the reason why they are not able to issue a stablished any breach or any damages to sustain a breach of contract case this contract is very clear that if there is an issue and it is their fault the initial the d c three terminals involved in these yes your honor there were there were three i think there were several different tunnels there were three specifically that they provided incorrect information for and those three because of that section four point two but then they they provided correct information so yet that they did do that and get made as regards only one of the three that's correct that the issue we believe in you make that  are our folks did make that correction what i understand factually and what the record shows on that issue that it was yes you were obligated to do it but you did there is nothing in the contract that specifically obligates us to make that correction  they're paying you for directing money properly from the debit machines into their account and you have no obligation once they inform you of an error to say that's a respect for your honor that's not that's not the point that i'm making that sounds like that the issue related to how they inform dust and what the record actually shows on that the films themselves show how they are to be submitted how and this is the third demonstrative that they gave the court this morning and has at the bottom of the form an actual e mail address for e mail in the forms to what they did in this case is they didn't follow that procedure they didn't e mail the forms to that took to that group what they did and what the record has shown on that this is record on appeal one sixty seven and one sixty five is they e mail they e mailed somebody at the company and said hey we made a mistake again when you walk into the perceived of the contract and what the party specifically contracted for that is not we certainly that individual tried to do what they could be correct the forms but they themselves did not go through the contract it seems to me set this up and then the facts are what really happened about the errors and so on who tried to correct what and then the jury will look at the facts and compare them with the language  the obligation and burden on them for monitoring the accounts particularly those accounts that the machines need been opened yet so i understood your honor him monitor anything if it hasn't started well i don't i don't know that i agree with that your honor that they have access to the accounts they make this argument under section two point one that they were connected to the network they absolutely were in the affidavit of  state that they actually went in to the network and ran settlements set up summaries and that those were available through the a c h portal that's the record it's one forty three in the affidavit of their c e o so they could have at any time and did go in look at the accounts and make sure that these accounts were set up properly they didn't do that and what the procedure and what the party specifically agreed to in section four point three is that they are to periodically monitor the accounts and that they have to do that and if there is a dispute or if there is an account that set up incorrectly twenty four hours and figured out that the routing information is wrong and send in a form to correct it and you know this formula showing us says fax is such and such a number email the such and such or mail to column a status services attention settlement well the record does not show that they did any of those things they e mailed an employee of the company not any of those addresses so again even even if you assume that they properly put it in even if we make that concession which we're not making the record doesn't show that they did that under four point three they are not entitled to get any damages because the underlying issue again relates to the error in the set up form that they started originally if we in him put the information in correctly if we have put it into the wrong account then there would be damages and that would be under nine point three that would have a limitation get there unless you know you put these paragraphs all together and you've got the fact a tha k you the wrong information they immediately tried to correct it sees somebody at the company acknowledged that it was correct at the there was a need to change something be your company didn't change something and well your excuses the company's excuses well that's because you didn't notify us properly so all those are it seems to me facts about the application of the contract provisions that we believe your honor that when you read section four point two which talks about their obligations set up the information and that they waive any liability or any claims resulting from submitting initially incorrect forms but those claims go away along with section four point three that there are they're not able to see if money and part of the reason why they're bad they have any damages in this case is because their honor i respectfully disagree with the court on that point they have nothing in the record that they appropriately they appropriately raised the issue the forms themselves that are in dispute i just it just seems difficult to me to say that it's entirely solved by the four corners of contract and a couple affidavit well i believe the reason your honor for that and what was found by the district court in walking through section four point two and four point three they cannot show when he will cover bill damage for this conduct the entire city entire course of the two hundred fifty thousand dollars that they claim in damages one hundred thousand of which they were recover d it is talked about in four point three i will maybe i misunderstood things because the way i read the briefs i thought your argument was they were in breach and therefore they couldn't cover set up the forms incorrectly that is expressly dealt with in four point two that they have that responsibility and and that they have to indemnify and hold harmless and releases from any claims arising out of the incorrect information submitted taken out of the terminal and the under side of the procedure went to the wrong account before they notified your client but what you're saying is that if there's any mistake what so ever at any time your company's liable for that right if the mistake relates to an incorrect terminal set up one that was an error by them that is correct under section four point two the hypothetical that you're in if it's your mistake know what well it's an that's a different question if it's our mistake than four point two doesn't come into effect the problem you've got the chicken or the egg here because you say it's their admit but the fact that you know the fact is in the implementation of the contract your follow knowledge corrected a mistake in the in the acknowledged the correction of the set up forms at least as to one account that is correct we did the specific but the other but the fact that he only did it as to one and not the other two is not a mistake well it's not a mistake and even if it is a mistake it is a mistake that is arising out of or related to incorrect information submitted on a terminal set up form or change related there too which takes us back to four point two and it's excluded but even even if you get to that point and the process of how the money is going out and how the funds are set up that is specifically called out in section four point three and there is no monetary damage that they can recover for that they are supposed to be monitoring the accounts which is what their obligation is in four point three and looking to see how they are set up in this particular case we believe it's even more greed just because there was such a gap between how it was set up and when they all com breach of contract question the novo and can affirm the district court's summary judgment on either breach or damages we believe that certainly in looking at sections four point two and four point three they are unable to establish any damages we don't believe they're able to establish breach but four point three specifically says agent which is then show audit the balances in the data contained in the in the statements and the reports provided we know that they were that the district court did not get to the damage provisions the district court looked at the contract and said that they cannot prevail as a matter of law and credit summary judgment and did not get to the specific damage provisions but the court can look at the record and look at this denote in four point three and again they have to notify we move on that basis properly promptly but in no event more than thirty days after the date of the disputed item so again if there is a dispute if there is this hundred dollars that was improperly taken out it's going to pop up on their report they notify us pursuant to four point three and we have to use commercially reasonable best efforts to potentially be in the affidavit of their c e o i don't believe that they specifically state other than that they they are there were they worked with c d s the pros are predecessor company to try to claw them the monies back from the funds which we helped them do and they were able to get some portion of those funds back they were able to get all of it back because i don't believe those accounts that they originally set them up for had sufficient funds in them to do that but but again u nder four point three it states that a b s and c v s will use their commercially reasonable efforts to recover any amounts over such thirty day period neither a t s nor c d s will be liable for any damages associated with the error other than correcting the error that's it that's section four point three if there is an error if it wasn't corrected they have a thirty day window that they had met that the monies that they're talking about one hundred fifty thousand dollars eight months six seven eight months later so again you have to look to the four corners of the contract that the parties specifically agree to what the parties negotiated in minimizing the risks and costs associated with this and again all of this relates back to an initial terminal set up form that was incorrectly set up by star financial and under four point two because of that and  reading out of the original and correct this or any change related there too so again there is nothing in the records nothing in the record to show that these forms were properly submitted they were not e mailed mailed or faxed to this number of e mailed it to an employee at the company that employee at the company attempted to do what they could but again it was not sent to the to the right department which is the why this happened let me ask a really dumb question out of the record how big is your client's company i don't know i don't know the answer to that it's more than three or four employees yes a lot more i believe i believe it is wrong about the specific size of the company is not in the r believe it certainly is big enough that a form being emailed to one in that there is a whole separate apart department that handled this set ups were these forms did not go so there were there was an e mail  and i'll point out for the record one of the e mails that they cite it's either one sixty seven or one sixty five they do send a notification that there is a that there is an error in one of the forms and that corrected forms will be coming to a settlement set up at columbus data dot net that e mail does go out and it's either one sixty seven or one sixty five however the attached forms never go to that e mail address so i think that's important for the courts court consideration and again in walking through what the district court's findings warrant looking at the contract this is a case on a breach of contract claim that should be decided as a matter of law we believe the district court found correctly that within the four corners of the contract that particularly sections four point two and four point three that there was no breach court even if the court disagrees on there's a fact issue one breach that there's certainly no issue with respect to damages and the court can affirm and therefore we ask this court to affirm the district one opinion thank you record this begins is an e mail chain record one seventy two august twentieth ten twenty one am an e mail to some from star financial or someone named tammy reed at columbus data which is c d s hi tammy the settlement forms that i sent you in my second e mail were incorrect please find attached settlement information a response at two o five that afternoon from tami read this and some of her questions both four point one and four point two contemplate the possibility that there will be changes in the set up information the last sentence of four point one says we have to immediately notify c d s in writing of any change in the information and the sentence in four point two that opposing counsel relied on this warranty language it  ers to notice of change if there is a an error in the notice of change we have to hold them harmless well why on earth are we going to have the right to submit change forms and to submit change information if they don't have a corresponding obligation to implement it it's it's an argument that simply doesn't make sense we make a mistake at the beginning we're stuck with it forever that steroids finally let me get to four point three a minimum of two things at a minimum there's going to be an issue of fact as to whether we could have found this this information that they're saying we could we should have been able to find information is available on the so called a c h reports and what he says and it's enough at a minimum to create an issue of fact is those a c h reports are keyed to particular bank accounts when we monitor these reports and the and the reports are reports about how the the machines are set up that's not the kind of report that four point three is talking about they're talking about law items every time there's a withdrawal there's a line item it's linked to a settlement cap so if my client wholes the a c h information for its settlement account it will find every friend's action involving that settlement account but of course it's not going to find these transactions because they went to a different town that's the whole problem and at a minimum that affidavit creates an issue with fact as to the applicability of four point three and even his argument is at some point we should have found the problem you have to reconcile the amounts of wine and the amounts won out but when out of reach terminal well good but you don't do it by terminal you do it by count there are almost two hundred machines that are linked to this particular the flow chart that i gave you assumes that everything's happening at the same time but it doesn't the there are timing differences and so what the ganja happen according to his affidavit which creates an issue of fact is quite simple gradually they saw some balances that started to look a little low but it took a while and then they jumped in i understand all the course none of that has anything to do with the thirty day requirement that the thirty day requirement ok yes the thirty day requirement has to do with is there if there is a particular line item that appears to be incorrect you have thirty days to come in and correct it it has nothing to do with something that isn't going to show up on the report at all that's our position ok thank