FIRST FARMERS & MERCHANTS BANK BUSINESS INTERNET BANKING AGREEMENT
The following information represents the First Farmers & Merchants Business Internet Banking and Master Cash Management Agreement between you and First Farmers & Merchants Bank (“Bank”, “we”, “our”, “ours”). This Master Agreement, including any related Business Internet Banking Customer Enrollment (“Enrollment Form”) and any applicable Service Agreement and other instructions and the terms and conditions contained herein relating to specific Services that may be provided in connection herewith (collectively, this “Master Agreement”), sets forth the terms and conditions governing the provision of the Online and cash management services to you or anyone authorized by you (collectively, Company, you, your, yours) and describes your and our rights, responsibilities and obligations. The Enrollment Form is incorporated by reference and is made an integral part of this Master Agreement. By completing and signing the Enrollment Form, and/or using one or more of the Services, Company acknowledges receipt of this Maser Agreement and Company agrees to, and shall be bound by, the terms, conditions and provisions in this Master Agreement, including those for each Service which Company has selected. Bank, in its sole discretion, may not permit Company to use the Service until Bank has determined that Company has accepted or executed the applicable documentation and otherwise provided appropriate information and specifications for the use of the Service, and until Bank has had a reasonable opportunity to review the Enrollment Form and activate the Service. In any event, Company agrees that the use by Company of any Service shall, without any further action or execution or acceptance of any documentation on the part of Company, constitute Company’s acceptance of and agreement to Bank’s terms and conditions for the use of such Service as may be in effect as of the time of such usage, whether set forth in this Master Agreement, any applicable Service Agreement or otherwise prescribed by Bank. In the event of a conflict between the terms of this Master Agreement and those of any Enrollment Form, or Service Agreement, the terms of the Enrollment Form, or Service Agreement, as applicable, shall govern and control with respect to the Service at issue. In order to activate this Service, you must have at least one Account with us linked to the Service.
Therefore, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Bank, intending to be legally bound, do hereby agree as follows:
I. Definitions. The following terms and definitions apply when used in this Master Agreement.
- “Account” or “Accounts” means one or more checking, savings, money market deposit or loan account that you have with us for commercial use. Accounts may include accounts of your Affiliates as provided for in Article IV Section I.
- “Account Access” means your ability to access account and transaction information on Accounts and transfer funds between Accounts through the Internet.
- “Account Agreement” means the agreement between you and us that governs the use of your Account including the deposit account agreement, any funds availability agreement, electronic funds transfer agreement or disclosure, line of credit agreement, and our schedule of fees and charges.
- “Affiliate” or “Affiliates” means a company or companies in which Company or Company’s parent company has direct or indirect majority ownership.
- “Bill Payment Account” means the Account(s) you have authorized us to debit for payment made to Payee(s) in connection with the First Farmers & Merchants Business Internet Banking Service.
- “Bill Payment Service” means our service that allows you to pay or transfer funds to designated Payees based upon your instructions to us via personal computer entered on the bill payment site.
- “Bill Payment” or “Payment” means the remittance of funds, initiated through First Farmers & Merchants Business Internet Banking, from a Bill Payment Account to a Payee.
- “Business Day(s)” means 8 a.m. to 5 p.m., Central Time, Monday through Friday. Federal Holidays are not included. Some online transaction deadlines may vary from this definition.
- “Business Internet Banking Customer Enrollment” or “Enrollment Form” means the First Farmers & Merchants Business Internet Banking Enrollment Form.
- “Deposit Account Agreement” has the meaning provided in Article X Section G
- “Electronic” means electrical, digital, magnetic, wireless, optical or electromagnetic technology, or any other technology that entails similar capabilities.
- “Funds transfer” or “Transfer” means a transfer of funds, initiated through First Farmers & Merchants Business Internet Banking Service, from one eligible account to another.
- “First Farmers & Merchants Business Internet Banking” or “Service” means the service(s) described in this Agreement.
- “Password” means the confidential identification number or other code assigned to you by us or selected by you for identification purposes in connection with the use of our First Farmers & Merchants Business Internet Banking Services.
- “Payee” means any individual, financial institution, educational institution, company, merchant or other entity you wish to pay using First Farmers & Merchants Business Internet Banking Services.
- “PC” means personal computer (including any personal data assistant or other wireless access device) that meets the requirements for use of First Farmers & Merchants Business Internet Banking Services.
- “Transfer Day” means Monday ‑ Friday, to 5:00 p.m., Central Time. Holidays are not included.
- Other definitions may be set forth elsewhere in this Master Agreement.
II. Setup and Use of Online Access Services.
To have access to the Services you must be an authorized user of the Software you select, if required for use with the Equipment. You must also have at least one eligible deposit or loan account with us. If you have, you will have access through the Service to the Accounts you specify on the Enrollment Form. If you specify more than one Account on the Enrollment Form, we will “link” the Accounts together. Accounts which are “linked” under the Services will have one common owner and signer. Any signer, acting alone, must be authorized to access a linked account. Any non-linked account will not be accessible through the Service. Prior to your first use of Service, the Bank will assign you a User Name and Password (the User Name and Password collectively are referred to as the “Access Codes”), required to gain access to the Service. The First Farmers & Merchants Business Internet Banking system will ask you to change your Password the first time that you use the system.
B. Security Procedure.
The use of the Access Code is a security procedure established by Bank to authenticate the identity of the person attempting to gain access to the Service. The security procedure is not designed for the detection of errors. We may require you to change your Access Code from time to time for security reasons. You should keep your Access Code in a secure location. Any person having access to your Access Code will be able to access these Services and perform all transactions, including reviewing Account information and making Transfers to other Accounts and to other persons. You are responsible for safeguarding the Access Codes. Providing these Access Codes to another person effectively constitutes a grant of authority to access your accounts.
- You agree to comply with the “Security Procedures” and any other Security Procedures Bank directs you to use, and you acknowledge and agree that the Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with a Security Procedure (“Security Devices”), constitute commercially reasonable security procedures under applicable law for the initiation of the Services you utilize, including without limitation, transfers and access to confidential information. You agree to appoint and designate an administrator (the “Administrator”) who will be authorized and responsible for creating and maintaining subsequent User Ids, Passwords and tokens on your behalf, including assigning and revoking access privileges for persons to use the Service, (“User”) and providing new and subsequent Security Devises to those Users. Bank will provide Customer’s designated Administrator, through United States postal mail and/or other delivery service selected by Bank at Bank’s option, with a User ID number and Password, and tokens to be distributed by the Administrator to each User with respect to one or more of the Services. You authorize us to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until you have notified us, according to notification procedures prescribed by us, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. You agree that the initiation of a transaction or instructions using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction or instruction notwithstanding any particular designation by you of authorized persons or signature requirements identified on any signature card or other documents relating to this Master Agreement or your deposit account maintained with Bank, and you agree and intend that the submission of transactions and instructions using the Security Procedures shall be considered the same as your authorized written signature in authorizing us to execute such transaction or instruction. You acknowledge and agree that you shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by you, to the fullest extent allowed by law. You further acknowledge and agree that the Security Procedures are not designed to detect error in the transmission or content of communications or transaction initiated by you and that you bear the sole responsibility for detecting and preventing such error.
- Customer understands that the Administrator has the capability of providing administrative privileges identical to that of the Administrator to any User, including the ability to create and maintain subsequent User accounts and assigning and revoking access privileges. If these privileges are granted by the Administrator to a User, that User will also be considered an Administrator. Customer will be required to use the Security Device each time it accesses the Services. Customer acknowledges that any Administrator shall have the ability to control security levels such as Service access and Service transaction limits, including without limitation the ability to assign dollar amount limits to transfers of funds. You also agree that the Administrator or any User shall also have the authority on behalf of customer to electronically accept and approve any and all agreements and amendments to agreements by and between Bank and Customer, including but not limited to this Master Agreement.
- You agree to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to Administrators and Users. You agree not to disclose or provide any Security Procedures or Security Devices to any unauthorized person. You also agree that Users shall not share Security Devices with each other. Where you have the ability to change or modify a Security Device from time to time (e.g., a password or User Name), you agree to change Security Devices frequently in order to ensure the security of the Security Device. You agree to notify us immediately, according to notification procedures prescribed by us, if you believe that any Security Procedures or Security Device have been stolen, compromised, or otherwise become known to persons other than you or your authorized representative(s) or if you believe that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, we may issue you a new Security Device or establish new Security Procedures as soon as reasonably practicable, but we shall not be liable to you or any third party for any delay in taking such actions. You agree to indemnify, defend all claims, and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, caused by your, your employees’, or agents’ failure to keep the Security Procedures or Security Device confidential and secure.
- You agree to notify us immediately, according to notification procedures prescribed by us, if the authority of any authorized representative(s) shall change or be revoked. You shall recover and return to us any Security Devices in the possession of any of your authorized representative(s) whose authority to have the Security Device has been revoked.
- We reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Device, at any time and from time to time in our discretion. We will endeavor to give you reasonable notice of any change in Security Procedures; provided that we may make any change in Security Procedures without advance notice to you if we, in our judgment and discretion, believe such change to be necessary or desirable to protect the security of our systems and assets. Your implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute your agreement to the change and your agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.
Services are generally accessible 24 hours a day, seven days a week, except that the Services may be inaccessible for a reasonable period on a daily basis for system maintenance. We are not liable under this Master Agreement or any applicable Service Agreement for failure to provide access due to a system failure or due to other unforeseen acts. We may modify, suspend, or terminate access to the Services at any time and for any reason without notice or refund of fees you have paid. The Bank may change the terms and conditions of this Master Agreement or any applicable Service Agreement from time to time to conform with changes or advancements in our services, or as required by law or regulation. All such changes will be made according to the procedures outlined in Article IX. Use of First Farmers & Merchants Business Internet Banking after the effective date of such changes will constitute your consent to the changes.
D. Equipment Requirements.
In order to use the Services, you must first obtain your own personal computer with Internet connection capability and related equipment (the “Hardware”). You also must provide the type of Internet access required by the Hardware and or Software, which requires a web browser with Java scripting capabilities and 128-bit encryption. Also recommended is an internet connection speed of 28.8 kbps or higher, Microsoft Internet Explorer® Version 11 or higher (for Windows), Mozilla Firefox® Version 46 or higher (for Windows) or Apple Safari® Version 9 or higher (for Mac OS) Once the Hardware has been properly connected and any required Internet access has been established, you will be able to access the Services’ website. You are and will remain solely responsible for the purchase, hookup, installation, loading, operation and maintenance of the Hardware, Software, and the Internet access service to your PC, and for all related costs. You are solely responsible for virus protection and maintenance of your PC. Bank shall have no responsibility for failures, interruption or other defects in the Services, which are occasioned by incompatible, improperly installed or improperly maintained hardware and software. The Bank may add to, modify, or replace software programs used in conjunction with providing the Services under this Master Agreement or any Service Agreement at its sole discretion and without notice, provided Services rendered to you are not substantially negatively affected or obligations altered. From time to time the Bank may deem it necessary to hold training or retraining classes for you. You agree that you will require appropriate personnel to participate in such training.
III. First Farmers & Merchants Business Internet Banking Access Services.
Products and Services Offered.
Company may use the Services to:
- Make transfers between Accounts you may have with us.
- Make Payments to a Payee from your Account(s) (Bill Payment Service).
- Obtain Account balances. Your account balance is generally current as of 8:00 a.m. Central Time of each Business Day, but may not include current transactions (such as checks cashed at a teller on the Business Day). In addition, your account balance may show funds that have been credited to your account but are not yet available for withdrawal.
- Review recent transactions on your Accounts over the previous thirty (30) days.
- Transfer money to make loan payments.
- Issue Stop Payment Requests.
- Communicate directly with Bank via electronic messaging.
- Download account information in various formats.
- *Originate ACH entries.
- *Subscribe to and use Positive Pay Services.
- *Make Wire Transfers.
These activities are limited to the extent noted herein and in the agreements governing your various accounts with us.
Additional services may be included in an update to this Agreement or in other separate agreements to notify you of the existence of any new services available through First Farmers & Merchants Business Internet Banking. Information about new services my be obtained from our website at www.myfirstfarmers.com. By using these services when they become available, you agree to be bound by the terms and conditions contained in this Master Agreement or separate agreements covering these services.
In most cases you may use First Farmers & Merchants Business Internet Banking to gain access to deposit accounts in which you have an unrestricted right to withdraw funds. However, the Bank, as it may determine at any time and from time to time in its sole discretion, may deny First Farmers & Merchants Business Internet Banking account access, restrict First Farmers & Merchants Business Internet Banking account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account.
You acknowledge and agree that the Service may be provided by an independent third party service provider (“Vendor”) as selected by Bank, and that both the Vendor and the Service are subject to change from time to time without notice to you. You further acknowledge, agree, and stipulate that the Vendor is an independent contractor providing software and data transmission services and is not the agent of you or Bank. Neither the Bank nor the Vendor is responsible for the actions or omissions of the other.
*You must execute the applicable Service Agreements to use these services.
IV. Additional Information about the Services.
A. Account Access.
Transfers and Payments from your Account will be deducted on the date you instruct us to process them. If the date you schedule a Transfer or Payment falls on a weekend or holiday, we will process your transaction the next Transfer Day. We may refuse to act on your Transfer instructions or Payment request if sufficient funds, including funds available under any overdraft protection plan, are not available in your Account on the date you want us to make the Transfer or Payment.
B. Processing Fund Transfers.
We can process a Transfer until 5:00 p.m. Central Time on a Transfer Day. If you request a Transfer after the cutoff time, the Transfer will be processed the following Business Day. You cannot post-date a Transfer.
You are fully obligated to us to provide sufficient funds for any payments or transfers you make or authorize to be made. If we complete a payment or transfer that you make or authorize and we subsequently learn that you have insufficient funds for the transaction, you agree that we may reverse the transaction or offset the shortage with funds from any other deposit account(s) you or your Affiliates have with us to the extent permissible by the applicable law and the terms of any other relevant agreements.
If there are insufficient funds in your Account to make a Transfer or Payment, we may refuse to make the Transfer or Payment or we may make the Transfer or Payment and overdraw your Account. In either event, you are responsible for any non‑sufficient funds (“NSF”) charges that may apply
C. Canceling Transfers or Payments.
You may cancel a pending Transfer or Payment transaction. However, to do so, we must receive your instruction to cancel prior to the cutoff time on the Transfer Day the transaction is scheduled to be processed. If we don’t receive your instruction to cancel a transaction before that time, we may process the transaction.
D. Transfer(s) from Savings/Money Market Deposit Accounts.
Federal regulations require us to limit, either by contract or in practice, the number of certain types of transfers from savings and money market deposit accounts. You are limited to six (6) preauthorized electronic fund transfers per calendar month. Each fund transfer through these Services from your savings or money market deposit account is counted as one of the six (6) transfers permitted each calendar month. However, payments to your loan accounts with us are not counted toward this transfer limit for savings/money market deposit accounts.
The Bank will not immediately receive e-mail that you send. Therefore, you should not rely on e-mail if you need to communicate to the Bank immediately. For example, if you need to stop payment on a check, to report a lost or stolen card, or to report an unauthorized transaction from one of your accounts, you should contact the Bank immediately by calling the Online Banking Department (see Article X, Section F). The Bank will not take actions based on your e-mail requests until the Bank actually receives your message and has a reasonable opportunity to act.
F. Overdrafts: Order of Payments, Transfers, and Other Withdrawals.
If funds are withdrawn from any of your accounts by means of electronic funds transfers, other than through First Farmers & Merchants Business Internet Banking on the same business day as a First Farmers & Merchants Business Internet Banking transaction, and if the account contains insufficient funds to enable both the electronic funds transfer and the First Farmers & Merchants Business Internet Banking transfer to be made, then the electronic funds transfer will have priority and the First Farmers & Merchants Business Internet Banking transfer will be refused or will result in an overdraft on your account. This is at the Bank’s sole discretion.
G. Bill Payment Service.
You can arrange, at your option, for the payment of your current, future and recurring bills from your designated Bill Pay Account. For Bill Payment Service, your Payee list may include utility companies, merchants, financial institutions, insurance companies, individuals, etc. within the United States whom you wish to pay through Bill Payment Service. Please include the full name of the Payee and a complete mailing address and telephone number for each Payee, along with your account number with the Payee, the amount of the Payment, and whether the Payment is recurring. The Bank reserves the right to decline to make Payments to certain persons and entities. You agree that any Payment for taxes, Payments that are court-ordered, government payments and Payments outside of the United States are prohibited and you agree that you will not attempt to use the Service to make these types of Payments. On recurring Payments, it is the responsibility of the account owner or designated authorized users to update Payee account information such as address changes, account numbers, etc.
Payments are posted against your ledger balance, plus the available credit on your overdraft protection, if any, or other line of credit.
You may schedule Payments to be initiated on the current Business Day, on a future date, or on the same date of each month. If you are scheduling a Payment for the current day it must be initiated prior to 8:00 p.m. Central Time. Changes to previously scheduled Payments must be made before 8:00 p.m., Central Time the Business Day before the day it is to be initiated. Although you can enter Payment information through the Service twenty-four (24) hours a day, seven (7) days a week, the Bank only initiates on Business Days. Funds must be available in your Account on the scheduled payment date. After funds are withdrawn from your Account to make a Payment, we may make the Payment either by transferring funds electronically to the Payee or by mailing the Payee a check. Funds will be deducted from your account on the same Business Day for Electronic Payments as well as Payments made by check. If you direct the initiation of a Payment to occur on a day other than a Business Day, it will be initiated on the following Business Day.
When you create a new Payee in the Bill Payment service, it has a temporary status until we have had sufficient time to set up the account, and for your business Payees, verify information about your account. You should schedule a Payment to a new Payee at least ten (10) Business Days before any Payment due date, to allow us time to set up the Payee and verify information about your account with the Payee. Bank is not liable for any service fees or late charges levied against you due to postal delays or processing delays by the Payee. There is no limit on the number of Payees or number of Payments that may be authorized. The maximum per Payment amount is $9,999.99 for check Payments and the minimum per Payment amount is $0.01. Electronic Payments are subject to the availability of sufficient funds in the designated checking account. However, Bank reserves the right to impose limits at some future date, with proper written notice.
For all subsequent Payments, you agree to allow at least five (5) to eight (8) Business Days between the date you schedule a Payment to be initiated and the Payment due date (that is, the due date shown on your invoice or provided in your agreement with the payee, not taking into account any applicable grace period). If you do not, you will be fully responsible for all late fees, finance charges or other actions taken by the Payee. If you schedule your Payment and follow all instructions provided, and the Payment is not received by the Payee in a timely manner, a representative of Bank will work with the Payee on your behalf to have any late fees or charges reversed.
At our sole discretion, we may elect to pay the check regardless of the insufficient funds. In either event, your qualified designated account will be charged our then current fee for processing insufficient items, whether the check is paid or returned, as applicable. You are responsible for any loss or penalty that you may incur due to a lack of sufficient funds or other conditions that may prevent the withdrawal of funds from your account.
If Payment is to be made electronically and your Account does not have sufficient funds to make a Payment as of the date the transfer or Payment is attempted or scheduled to be made, the Transfer or Payment will be canceled and no further attempt will be made by Bank to make the Transfer or Payment. Bank shall have no obligation or liability if it does not complete a Transfer or Payment because there are insufficient funds in your account to process a transaction. In all cases, you are responsible for either making alternate arrangements for the Payment or rescheduling the Payment through the Service. In the case of recurring Payments, only the Payment currently scheduled will be canceled. Recurring Payments schedule for future dates will not be affected.
Recurring Payments and Transfers are those made for the same amount, on the same date, on a weekly, bi-monthly, monthly basis, etc. Once started, recurring Payments and Transfers will be made automatically until you delete the Payment or Transfer or upon expiration. If the Payment is not a recurring Payment, it will be a “one-time Payment.” One-time Payments do not recur and are not made until you enter the Payee and amount of the current bill and submit the Payment. A recurring Bill Payment Service transaction that you want deleted must be deleted or the next Payment date changed three (3) Business Day before the current transaction date.
A stop payment cannot be placed on an Electronic Bill Payment transaction once issued. However, a stop payment can be placed on a Bill Payment transaction by Bill Payment check any time prior to 9:00 a.m. p.m. Central Time on the day such check is scheduled for final payment.
There is no fee for deleting a Payment initiated through Bill Payment; however a fee will apply for a stop on a Bill Payment check.
In the event a Payment is returned to us for any reason, you authorize us, in our sole and absolute discretion, to either research and correct the Payment information or to void the Payment and re-credit your Account.
In order for the Bill Payment Service to remain in active status, you must pay a bill at least once every two (2) months.
H. Stop Payment Requests.
Unless otherwise specified in any applicable Service Agreement, any stop payment order which Customer wishes to place on a check drawn on an account that is the subject of this Service or is otherwise related to this Service shall be placed in accordance with the Bank’s normal stop payment procedures and provisions for other accounts in effect at that time. Company acknowledges that Stop Payment Request (defined hereinbelow) may not be placed on any items other than checks issued by Company. You may not use this Stop Payment Request service to stop payment on a payment issued using the Bill Payment Service. You may be able to stop a Bill Payment issued in paper form by contacting the support line by telephone at (888)722-1318 before the paper draft has been finally paid. Any Stop Payment Request for ACH debits or paper drafts must be placed at a Bank branch office location. If Customer has elected to issue stop payment orders via Business Online, the following provisions shall apply:
- You have requested us to provide Stop Payment Services under Business Online to enable you to electronically issue stop payment entries (“Stop Payment Request”). You hereby agree to use the Stop Payment Services according to the instructions set forth in this Section H.
- You may only submit Stop Payment Requests for checks that have not yet posted to the Account. Thus, prior to submitting Stop Payment Requests, you must first verify that the checks have not posted to the Account.
- You understand and agree that Stop Payment Requests will not take effect unless you provide all the information requested by the Stop Payment screens and provide such information exactly as it appears on the check, including, but not limited to, the account number, check number, amount, payee and date. You acknowledge that the computer programs used to provide the Stop Payment Services require exact information regarding the check and even minor errors in providing the exact information requested may prevent payment from being stopped. For example, if you give us the wrong amount of the check and the information is only wrong by one cent (.01) or if the check number you provide is only wrong by one digit, we will not be able to stop payment on the check. You agree that Bank is not liable to you for payment of any check over a Stop Payment Request if you do not provide the exact information regarding the check.
- Stop Payment Requests that we receive prior to 9:00 a.m. (Central Time) on a particular Business Day, will be effective on that Business Day. Conversely, Stop Payment Requests that we receive after that cut-off time will take effect on the next Business Day. The Business Day on which the Stop Payment Request takes effect is referred as the “Stop Payment Effective Date.” We shall not be liable to you for items otherwise properly payable that we pay prior to the Stop Payment Effective Date of your Stop Payment Request or any loss arising out of such payment.
- The Stop Payment Request will be effective for six months, from and including the Stop Payment Effective Date. You may renew or otherwise continue the effectiveness of a Stop Payment Request by making a new Stop Payment Request via Business Online at least one Business Day prior to the expiration of the existing Stop Payment Request. You acknowledge that we are not obligated to stop payment on a check after the expiration of a Stop Payment Request. However, you agree that we may stop payment according to an expired Stop Payment Request without incurring any liability to you. You further understand and agree that you, and not us, have the obligation to monitor your Stop Payment Requests and that we will not provide you with any notice of the expiration dates of any Stop Payment Request and/or the need to renew any such requests.
- You understand and agree that we will accept a Stop Payment Request and use reasonable procedures to locate and stop payment on the check. However, in consideration of our acceptance of the Stop Payment Request, you expressly agree to hold us harmless from any direct or indirect damages if we pay the check (i) on the day we receive the Stop Payment Request, or (ii) by reason of oversight or inadvertence. Furthermore, you hereby agree that we will not be liable to you for any direct or indirect damages if other checks drawn by you are returned NSF because we pay the check under the circumstances noted in (i) or ii) herein. You further agree to indemnify us against all expenses and costs that might incur by reason of stopping payment on a check pursuant to a Stop Payment Request, whether it expired or not.
- You hereby authorize us to automatically charge the Account against which the check was drawn for applicable Stop Payment fees for each Stop Payment Request and renewal thereof.
I. Access to Affiliate Accounts
- Bank, in its discretion, may permit Company to add Accounts of its Affiliates to the Service. Any Affiliate Accounts added to the Service will be linked together with your Accounts and you will be able to access and utilize the Service in connection with such Affiliate Accounts.
- Bank will only permit such account linkage where the Affiliate becomes a party to this Agreement and executes any and all agreements, authorizations, and/or other documentation as Bank requires from time to time. Any Affiliate whose Account(s) is/are added to the Service will be deemed a Company of the First Farmers & Merchants Business Internet Banking Service and this Agreement will be collectively applicable to you and Affiliate.
- You represent and warrant to Bank that if Accounts held under different tax IDs are linked, the representative executing the Enrollment Form is authorized to designate all such Accounts as accounts to be accessible through the Service included on the Enrollment Form and that no Account included on the Enrollment Form for common access is restricted from such common access by any provisions of Company’s and/or Affiliate’s charter, bylaws or similar documents or any applicable laws or any existing resolution, declaration or agreement with Bank and that each service provided for the Accounts by First Farmers & Merchants Business Internet Banking has been duly and legally authorized by You and each Affiliate. Where accounts held under different tax identification numbers are requested to be linked, you acknowledge that Bank shall rely on the Security Procedure to determine authority of one Affiliate to transfer funds or conduct other transactions effecting Accounts of other Affiliates. You acknowledge that you are responsible for determining any limitations on access to your or Affiliate’s Accounts by your officers, employees, or other designated representatives.
- Where Bank permits linkage between Affiliate Accounts, you and the applicable Affiliates shall, jointly and severally direct Bank and authorize it: (a) to provide complete access by you to Affiliate’s account(s) as designated in the Enrollment Form, and (b) to recognize, accept and effectuate any and all transactions initiated through the Service available under this Agreement, by you, with respect to Affiliates’ Accounts, all without further inquiry regarding: (i) the authority of the person(s) initiating the transaction(s), and (ii) any aspect of the transaction(s) itself. Bank shall not otherwise be deemed to have any knowledge of any agreement or provisions of any agreement that may exist between you and your Affiliates respecting such banking or other matters, nor any of yours or Affiliates’ respective duties thereunder.
- By entering into this Agreement, you represent and warrant to Bank that (i) you have fully advised the appropriate owners, officers, and other personnel of any applicable Affiliate regarding the terms hereof, including, among other things, terms and conditions relating to your rights and obligations with respect to account linkage matters and with respect to the Affiliate’s joint and several obligations hereunder relating to such transactions; (ii) Affiliate fully agrees to be bound by the terms hereof in respect of its accounts, including, among other things, the charging of fees to its Accounts as described in this Agreement; (iii) Affiliate has, or at the appropriate time shall have, assumed all obligations and risks assumed by you pursuant to the terms of this Agreement with respect to transactions affecting Affiliate’s Accounts, in the same manner as if Affiliate had entered into this Master Agreement directly and directly caused such transactions to occur.Bank shall have no responsibility with respect to the application of funds by you, and Bank’s obligations with respect to such Account linkage matters shall be limited strictly and specifically to those expressly set forth herein.
- Monthly maintenance fees for use of the Services shall be charged to your Account. All transaction fees and charges incurred for specific transactions and services by Affiliates executed using the Services shall be charged to the applicable Account.
- You and Affiliate, jointly and severally, hold Bank harmless and indemnify Bank for any loss, damage, injury, assessment, judgment or liability, suffered or incurred by Bank, and for any claim, proceeding, action or cause of action brought against Bank (including reasonable attorneys’ fees relating thereto), arising from, or in any manner in connection with, Bank permitting access by you to Affiliate’s Accounts and any transactions effected by you through this Agreement.
- Your authorization for Bank to perform Services for or with Affiliates in this Section I shall be for an indefinite term and shall continue until terminated as provided herein. This authorization may be terminated by either party, at any time, in their sole discretion, upon written notice to the other parties. Notice of termination initiated by Bank shall be effective upon receipt by you and Affiliate. Notice of termination initiated by Company or Affiliate, shall be effective five (5) business days after receipt, and written acknowledgment of such receipt, by Bank, or such earlier time as Bank may effectuate the termination. Bank shall be authorized to continue to rely upon the representations made herein by Company and Affiliate, and may continue to provide access by Company to Affiliate’s accounts and process transactions, until notice of termination initiated by either Company or Affiliate is received and acknowledged as provided above.
- If the accounts of more than one business entity are linked together, the delivery of notices, documents and correspondence to you in connection with the Service shall be deemed to be delivered to all entities.
V. Limitations. Your use of these Services is subject to the following limitations:
A. Dollar Amount.
There may be a limit on the dollar amount of the transactions you can make using these Services. Security reasons limit the dollar amount of transactions and these limits are subject to change from time to time. Payment can only be made with U.S. currency.
In addition to the Federal banking regulations that restrict the number of transfers and withdrawals, there may be limits on the number of transactions you can make using these Services. These limits are for security reasons and are subject to change.
C. Foreign transactions.
No Payments may be made to Payees outside the United States.
Additional limitations may be contained in this Master Agreement or the applicable Service Agreement. Your ability to initiate transactions may also be limited by the terms of other agreements you have with the Bank or by applicable law.
VI. Parties’ Responsibilities.
A. Your Responsibility.
- Physical and Electronic Security.
- You are solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in your possession or under your control. We are not responsible for any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” and/or “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system. Any material downloaded or otherwise obtained is obtained at your own discretion and risk, and Bank is not responsible for any damage to your computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. You are solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to your operating systems, and for protecting, securing, and backing up any data and information stored in or on your operating systems. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on your operating systems.
- You acknowledge and agree that it is your responsibility to protect yourself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” or “pharming”). You agree to educate your representative(s), agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. You acknowledge that Bank will never contact you by e-mail in order to ask for or to verify Account numbers, Security Devices, or any sensitive or confidential information, and will never provide links to websites in e-mails that Bank transmits to you. In the event you receive an e-mail or other electronic communication that you believe, or has reason to believe, is fraudulent, you agree that you shall not respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail. To the extent allowed by law, you agree that Bank is not responsible for any losses, injuries, or harm incurred by you as a result of any electronic, e-mail, or internet fraud.
- In the event of a breach of the Security Procedure, you agree to assist Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing Bank or Bank’s agent access to your hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure. You further agree to provide to Bank any analysis of such equipment, device, or software or any report of such analysis performed by you, your agents, law enforcement agencies, or any other third party. Your failure to assist Bank shall be an admission by you that the breach of the Security Procedure was caused by a person who obtained access to your transmitting facilities or who obtained information facilitating the breach of the Security Procedure from you and not from a source controlled by Bank.
2. Reporting Unauthorized Transactions.
You should notify us immediately if you believe your User Name or Password have been lost or stolen, that someone has gained access to the Security Procedure, or that someone has transferred or may transfer money from your Account without your permission or if you suspect any fraudulent activity on your Account. To notify us, call us at the number provided in Article X Section F between 8:00 am. and 5:00 p.m, Central Time, during a Business Day.
3. Duty to Inspect.
You shall inspect all transaction history, reports, journals, and other material evidencing the output of the Service(s) performed by Bank. You must report all errors to the Bank for Services performed and indicated in the transaction history, reports, journals, and other material evidencing the output of the Service(s) or otherwise reported to you daily by the close of business on the banking day following the day on which the Service(s) is rendered. You must report all other errors within a reasonable time not to exceed sixty (60) days from the date that the error is made. Failure of you to promptly report errors within such specified time shall preclude you from asserting against the Bank any claims arising from the error or any loss caused by the error.
4. Required Deposit Balance.
You agree to maintain the minimum collected balance (“Required Deposit Balance”) in the amount and in the account specified in the Service Agreement establishing the terms and conditions of the specific Services selected by you and the set of detailed instructions (“Operating Instructions”) establishing the procedures and operating instructions governing the Service.
5. Data and Information Supplied by You.
You shall transmit or deliver data and other information in the format and on the media as provided for in the Service Agreement and the Operating Instructions if applicable or as otherwise required by the Bank in conjunction with rendering the Service(s) selected by you. You shall have the sole responsibility of ensuring the accuracy and correctness of the data transmitted. You acknowledge and agree that Bank shall not examine the data for correctness and the Bank shall not have any responsibility for detecting errors in the data transmitted by you. The data transmitted by you must be legible, correct and complete. Bank shall not process, and Bank shall not be liable to you for failure to process, the data if it is not in the format specified by Bank or if the data is incomplete. Bank shall not be liable for errors or omissions caused by data that is rejected as the result of your failure to provide the data in accordance with the standards specified in the Master Agreement or any applicable Service Agreement and the Operating Instructions.
6. Financial Information.
Bank may from time to time request information from you in order to evaluate a continuation of the Service(s) to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement. You agree to provide the requested financial information immediately upon request by Bank, in the form required by Bank. If you refuse to provide the requested financial information, or if Bank concludes in its sole discretion that the credit risk of you is unacceptable, Bank may terminate the Service according to the provisions hereof. You authorize Bank to investigate or reinvestigate at any time any information provided by you in connection with this Master Agreement or any Services and to request reports from credit bureaus and reporting agencies for such purpose.
You shall deliver or transmit all data or information to Bank by the deadline(s) specified in this Master Agreement or any applicable Service Agreement and the Operating Instructions. Bank shall have no obligation to process data or perform the Service if the data is not received by the Bank by the specified deadline.
8. Payment for Services.
You agree to pay Bank the fees established by Bank for rendering the Services under the terms of this Master Agreement or any applicable Service Agreement. Depending on which First Farmers & Merchants Business Internet Banking services you subscribe to, you will be charged the applicable First Farmers & Merchants Business Internet Banking fees as set forth in our General Information and Fee Schedule hereby incorporated by reference and made a part hereof. Once you have subscribed, you will be charged the applicable Monthly Fee(s) whether or not you use First Farmers & Merchants Business Internet Banking.
The Bank may change or add any fees for First Farmers & Merchants Business Internet Banking by the procedures outlined in Article IX for amending this Master Agreement. Fees charged for First Farmers & Merchants Business Internet Banking under this Master Agreement are in addition to any service charges or fees that apply to your accounts with us.
You authorize the Bank to deduct all applicable Monthly Fees from any Account listed on the Enrollment Form, regardless of whether any such Account is owned by you or an Affiliate. If you close the Account(s) associated with the Service, Fees may be deducted from any other account you maintain with us or any of our affiliates. Furthermore, Bank may setoff against any amount it owes to you in order to obtain payment of your obligations under this Agreement.
In addition to the Service fees, you agree to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, this Master Agreement and applicable Service Agreement, and/or the software or equipment made available to you (excluding any income tax payable by Bank). You are also responsible for the costs of any communication lines and any data processing charges payable to third parties.
9. Remotely Created Checks.
If you use a Service wherein you create or deposit a Remotely Created Check, as that term is defined in Federal Reserve Board Regulation CC, you warrant to Bank that the person on whose account the Remotely Created Check is drawn authorized the issuance of the check in the amount stated on the check and to the payee stated on the check.
10. Use of Services.
You will use the Services only for its own internal business use in accordance with the terms of this Master Agreement. Without limiting the generality of the foregoing, you agree not to make the Services available or allow use of the Services in a computer bureau service business, timesharing, or otherwise disclose or allow use of the Service by or for the benefit of any third party. FURTHER, YOU REPRESENT AND WARRANT THAT NONE OF THE ACCOUNTS HAVE BEEN ESTABLISHED OR ARE BEING OR WILL BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES AND THAT YOU ARE NOT A “CONSUMER” UNDER REGULATION E – ELECTRONIC FUNDS TRANSFER ACT (HEREIN, “REG. E”).
11. Minimum Balance.
You agree to maintain a minimum collected balance in the amount and account specified if required to do so from time to time by Bank in its sole discretion.
12. Prohibited Transactions. Company agrees not to use or attempt to use the Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, (b) to breach any contract or agreement by which Company is bound, or (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, (d) to engage in any activity or business that would result in Company being or becoming a “money service business” as defined in the Bank Secrecy Act and its implementing regulations, or (e) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Company acknowledges and agrees that Bank has no obligation to monitor Company’s use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement.
B. The Bank’s Responsibilities.
Bank agrees to use ordinary care in rendering Services under this Master Agreement and any applicable Service Agreement. You recognize and agree that ordinary care does not mean error free. You agree to pay all attorneys’ fees, costs and expenses Bank may incur in collecting any sums you owes to Bank for overdrafts, service charges or otherwise or in enforcing any rights Bank may have under the terms of this Master Agreement and any applicable Service Agreement or applicable law, rule or regulation applicable to your account(s) or the Services rendered by Bank under this Master Agreement and any applicable Service Agreement. You also agree to pay all attorneys’ fees, costs and expenses that Bank may incur as the result of defending any claim or action made against Bank by you, or on your behalf where Bank is found not to be liable for such claim. In no event shall Bank be liable to you for attorneys’ fees incurred by you in any action brought by you against Bank.
Our sole responsibility for an error in a transfer will be to correct the error. Without limiting the generality of the forgoing, we will not be responsible for the following matters, or for errors or failures of our Services as result of:
We will not be liable under this Master Agreement or any applicable Service Agreement for failure to provide access or for interruptions in access to our Services due to a system failure or due to other unforeseen acts or circumstances.
- Your Computer Equipment & Your Software.
We will not be responsible for any errors or failures from any malfunction of your computer or any computer virus or other problems related to your computer equipment used with our Services. We are not responsible for any error, damages or other loss you may suffer due to malfunction or misapplication of any system you use, including your browser (Mozilla Firefox®, Microsoft Internet Explorer®, or otherwise), your Internet service provider, your personal financial management or other software (such as Quicken®), or any equipment you may use (including your telecommunications facilities, computer hardware and modem) to access or communicate with the First Farmers & Merchants Business Internet Banking Services.
- Any Transaction or instruction. (a) exceeds your collected and available funds on deposit with the Bank; (b) is not in accordance with any condition indicated by you and agreed to by the Bank; (c) the Bank has reason to believe may not be authorized by you; (d) involves funds subject to hold, dispute, or legal process preventing their withdrawal; (e) would violate any provision of any present or future risk control program of the Federal Reserve or any current or future rule or regulation of any other federal or state regulatory authority; (f) is not in accordance with any other requirement stated in this Master Agreement and any applicable Service Agreement or any Bank policy, procedure or practice; or, (g) for the protection of the Bank or you, the Bank has reasonable cause not to honor.
VII. Privacy and Confidentiality.
All information of a business nature relating to the assets, liabilities or other business affairs disclosed to the Bank by you and your customers in connection with this Agreement is confidential. Bank shall not, without the express written consent of you, disclose or permit access to any such information by any person, firm or corporation and Bank shall cause its officers, employees, and agents to take such action as shall be necessary or advisable, to preserve and protect the confidentiality of disclosing such information to persons required to have access thereto for the performance of this Agreement, or to any other party to which the Bank may be required by law to report such information. You agree to hold confidential and to use only in connection with the Service provided under this Agreement all information furnished to you by Bank or by third parties from whom Bank has secured the right to use the Service, including, but not limited to, Bank’s product and service pricing structure, system design, programming techniques or other unique techniques. In addition, should you at any time receive or acquire any information relating to another customer of the Bank, you shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for your own benefit. Bank and your obligations and agreements under this paragraph shall not apply to any information supplied that was known to either party prior to the disclosure by the other, or is or becomes generally available to the public other than by breach of this Agreement, or otherwise becomes lawfully available on a non-confidential basis from a third party who is not under an obligation of confidence to either party. Notwithstanding anything to the contrary contained herein, it is authorized and agreed by the parties hereto that the performance of said Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Board of Directors of the Federal Deposit Insurance Corporation, and/or a State regulatory agency and you agree to the release of the your reports, information, assurances, or other data as may be required by them under applicable laws and regulations. You agree that any specifications or programs developed by the Bank in connection with this Agreement or supplied or made available to you by Bank are the exclusive property of Bank, its agents, suppliers, or contractors, and further agrees that such material shall not be copied or used in any manner or for any purpose without the express written consent of Bank. This clause shall survive the termination of the Agreement.
Either you or the Bank may terminate this Master Agreement, any applicable Service Agreement, and your First Farmers & Merchants Business Internet Banking subscription at any time upon giving at least ten (10) days prior written notice of the termination to the other party. If you terminate First Farmers & Merchants Business Internet Banking, you authorize the Bank to continue making transfers you have previously authorized and continue to charge monthly fees until such time as the Bank has had a reasonable opportunity to act upon your termination notice. Once the Bank has acted upon your termination notice, the Bank will make no further transfers from your accounts, including any transfers you have previously authorized. If the Bank terminates your use of First Farmers & Merchants Business Internet Banking, the Bank reserves the right to make no further transfers from your accounts, including any transactions you have previously authorized.
Notwithstanding the foregoing, Bank may immediately terminate this Master Agreement and/or any applicable Service Agreement without notice if, (a) you or we close your Accounts(s), or (b) in Bank’s sole discretion, Bank determines that you have abused the First Farmers & Merchants Business Internet Banking Service or Bank believes that it will suffer a loss or other damage if the Master Agreement and/or applicable Service Agreement is not terminated.
Bank’s election to terminate this Master Agreement and/or any applicable Service Agreement is in addition to any and all other remedies that may be available to Bank and will not affect any obligations you may have to Bank. Any reinstatement of the Service under this Master Agreement and/or any applicable Service Agreement will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank.
Upon termination of this Master Agreement and/or any applicable Service Agreement, any property or rights of a party in the possession of the other party, tangible or intangible, shall be returned to owner thereof within thirty (30) days after the later to occur of (i) termination of the Master Agreement and/or any applicable Service Agreement or (ii) the last date that such party receives any such property or rights.
Upon termination of this Master Agreement and/or any applicable Service Agreement, (i) you will promptly pay to Bank all sums due or to become due under this Master Agreement and/or applicable Service Agreement, and (ii) you shall have no further right to make use of the Service or any system or software which may have been provided in connection with the Service.
IX. Changes in Terms and other Amendments.
The Bank may amend the terms of this Master Agreement and any applicable Service Agreement alter, change, or modify the Services provided under the terms of this Master Agreement and any applicable Service Agreement (including the fees and charges for Services listed) or any supplemental agreement at any time in its sole discretion by giving written notice to you. If required by agreement or by applicable law, notice will be given for the required applicable number of days in advance of such amendments. Your continued use of the Services shall constitute your agreement to such amendment. No amendments requested by you shall be effective unless received in writing by Bank and agreed to by the Bank in writing.
A. Electronic Notices.
You agree that we may send Communications to you by email and/or may make Communications available to you by posting them at our sponsored website. You consent to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to you or received from you in connection with the Services provided under this Master Agreement. Your consent to do business electronically and our agreement to do so cover all transactions you conduct through the Services. You are responsible at your expense for obtaining and/or providing your own internet access and for all hardware and software that may be necessary in connection with obtaining such access. You agree to notify us promptly of any change in your email address or other registration data.
You may use e-mail to contact us about inquiries, maintenance and/or some problem resolution issues. E-mail may not be a secure method of communication. Thus we recommend you do not send confidential personal or financial information by e-mail. There may be times when you need to speak with someone immediately (especially to report a lost or stolen Password, or to stop a payment). In these cases, do not use e-mail. Instead, you should call us at the number provided in Article X, Section F.
B. Hours of Operation.
Our representatives are available to assist you from the hours of 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday, except holidays, by calling the number provided in Article X, Section F.
C. Ownership of Website.
The content, information and offers on our website are copyrighted by Bank and/or Vendor and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited. You agree not to copy, display, distribute, download, license, sub-license, modify, publish, repost, reproduce, reuse, sell, transmit, create a derivative work from or otherwise use for public or commercial purposes, the information and materials on the Sites, except as provided in this Master Agreement, without our express written permission. Unless otherwise noted, all other trademarks, service marks, and logos used on the Bank’s Business Online sites are the trademarks, service marks or logos of Bank, or others as indicated.
D. Web-linking Practices.
E. Geographic Restrictions.
The Services described in this Master Agreement and any application for credit, deposit services, and brokerage services available at our web site are solely offered to citizens and residents of the United States of America residing within the United States of America. Citizens and residents may not be able to access these Services outside the United States of America.
F. Contact Information.
In case of questions about your electronic transactions contact customer service at:
First Farmers & Merchants Bank
Attn: First Farmers & Merchants Bank Electronic Banking Department
P. O. Box 1148
Columbia, TN 38402-1148
Phone: 931-388-3145 or Toll free at: 1-800-882-8378
Fax us at : 931-490-5810
E-mail: email@example.com (Please note that banking transactions through SYSTEM are not made via e-mail)
G. Deposit Account Agreement.
You acknowledge and agree that your demand deposit account maintained with Bank is an integral part of the Services offered by Bank and that all transactions and Services initiated or processed pursuant to this Master Agreement are subject to the terms and conditions of the rules, regulations and agreement (“Deposit Account Agreement”) governing accounts in effect from time to time between you and Bank. The Deposit Account Agreement is expressly incorporated herein by reference. The terms and conditions of this Master Agreement shall control over any inconsistent terms and conditions of the Deposit Account Agreement. You acknowledge that you have signed and executed all agreements, resolutions, signature cards and forms governing your demand deposit account required by Bank. If you have not signed the foregoing forms required by Bank, by signing this Master Agreement, you acknowledge that you have read the contents of and agree to be bound by the terms of those forms, agreements and documents, and adopt and ratify, as an authorized signatory(s), the signature(s) of any person(s) who has signed a signature card or any check on your account. You also agree to establish all accounts that must be opened in conjunction with the Service provided by Bank.
H. Effective Dates.
The effective date of this Master Agreement and any applicable Service Agreement shall be the date upon which the Agreement is executed by you and accepted by Bank.
I. Internet Disclaimer.
For any Service(s) described in the Master Agreement utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank’s network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, your ability to connect to the Internet, or Bank’s ability to connect to the Internet on your behalf.
J. Limitation of Liability.
- YOU AGREE THAT BANK SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF THE USE BY YOU OF ANY SERVICE EVEN IF YOU, BANK OR BANK’S SERVICE PROVIDER HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TO THE FULLEST EXTENT ALLOWED BY LAW, BANK’S LIABILITY TO YOU UNDER THIS MASTER AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM BANK’S FAILURE TO EXERCISE ORDINARY CARE OR TO ACT IN GOOD FAITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL BANK BE LIABLE TO YOU FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU AND RECEIVED BY BANK DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WHICH SHALL BE DETERMINED BY THE EARLIER OF THE DATE WHEN YOU FIRST BECAME AWARE OF THE CLAIM OR THE DATE WHEN, THROUGH THE EXERCISE OF REASONABLE CARE, YOU REASONABLY SHOULD HAVE BECOME AWARE OF THE CLAIM.
- YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY BANK ON AN “AS IS” BASIS.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS MASTER AGREEMENT, BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO YOU OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. YOU AGREE THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS MASTER AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO.
- BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU AS TO ANY COMPUTER HARDWARE, SOFTWARE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, YOUR COMPUTER SYSTEMS OR RELATED EQUIPMENT, YOUR SOFTWARE, OR YOUR INTERNET SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT YOU USE, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING (BUT NOT LIMITED TO) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF YOUR COMPUTER HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY COMPUTER SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO YOU IN CONNECTION WITH THIS MASTER AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM YOU TO BANK OR FROM BANK TO YOU. BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING YOU OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF YOUR COMPUTER HARDWARE OR SOFTWARE.
K. Compliance With Laws, Rules, and Regulations.
You agree to comply with all existing and future instructions used by the Bank for processing of transactions. You further agree to comply with and be bound by all applicable state or federal laws, rules and regulations affecting the use of checks, drafts, fund transfers, and ACH transactions, including but not limited to, rules and procedural guidelines established by the Federal Trade Commission (FTC), the Board of Governors of the Federal Reserve, the National Automated Clearing House Association (NACHA) and any other clearinghouse or other organization in which Bank is a member or to which rules Bank has agreed to be bound. These laws, procedures, rules, regulations, and definitions shall be incorporated herein by reference.
L. Relationship of Parties.
Company and Bank acknowledge and agree that the relationship between Bank and Company is that of an independent contractor and that this Master Agreement does not establish or create a general agency, joint venture, partnership, or employment relationship between them.
M. Force Majeure.
The Bank shall not be responsible for any liability, loss, or damage resulting from Bank’s failure to perform any Service or to perform any other obligations under this Master Agreement and any applicable Service Agreement which is caused by an act of God, fire, floods, adverse weather or atmospheric conditions or other catastrophes; war, sabotage, riots, acts of public enemy, or acts of governmental authority or the Board of Governors of the Federal Reserve; labor difficulties; equipment or computer failure or destruction or the unavailability, interruption, or malfunction of communications facilities or utilities; delays or failure to act by you or third parties and their personnel; criminal acts; or generally any cause reasonably beyond the Bank’s control.
Any reimbursement by Bank for any liability hereunder may be made either directly to you or by adjustment of the aggregate ledger and collected balances of your accounts.
In addition to other indemnification and liability provisions elsewhere in this Master Agreement and any applicable Service Agreement, to the fullest extent allowed by law, you will be liable for, hold harmless, and will indemnify Bank, and their employees and agents from and against all claims of any sort by third parties or others arising out of this Master Agreement and any applicable Service Agreement, including all losses and expenses incurred by Bank arising out of your failure to report required changes, transmission of incorrect data to Bank, or failure to maintain compliance with all laws, regulations and rules. Except for those losses caused directly by Bank’s failure to exercise ordinary care or to act in good faith, you agree to indemnify and hold Bank, its officers, directors, shareholders, agents, employees, and affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all losses, costs, suits, damages, claims, liabilities and expenses (including reasonable attorneys’ fees) arising from or related in any way to (i) any Services performed in connection with this Agreement, (ii) Bank’s action or inaction in accordance with or reliance upon any instructions or information received from any person reasonably believed by Bank to be an authorized representative of you or Authorized User, (iii) your breach of any of your covenants, agreements, responsibilities, representations or warranties under this Master Agreement and any applicable Service Agreement, and/or (iv) your breach of applicable laws, rules or regulations.
P. ARBITRATION AND WAIVER OF JURY TRIAL.
YOU AND BANK AGREE THAT THE TRANSACTIONS PROCESSED UNDER THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT INVOLVES “COMMERCE” UNDER THE FEDERAL ARBITRATION ACT (“FAA”). ANY CONTROVERSY OR CLAIM BETWEEN YOU AND BANK, OR BETWEEN YOU AND ANY OF BANK’S OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO ANY SERVICE PROVIDED UNDER THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY “CLAIM”), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES (“THE ARBITRATION RULES”). IF A CLAIM IS SUBMITTED TO ARBITRATION, (A) YOU WILL NOT HAVE THE RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL; (B) YOU WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE ARBITRATION RULES; (C) YOU WILL NOT HAVE THE RIGHT TO HAVE ANY CLAIM ARBITRATED AS A CLASS ACTION UNDER THE ARBITRATION RULES OR UNDER ANY OTHER RULES OF CIVIL PROCEDURE; (D) THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING WITH LIMITED RIGHTS TO APPEAL; (E) THIS MASTER AGREEMENT SUPERSEDES ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN YOU AND BANK. THIS MASTER AGREEMENT TO ARBITRATE DISPUTES WILL SURVIVE THE CLOSING OF YOUR ACCOUNT AND THE TERMINATION OF THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT.
Q. Governing Law.
These terms and conditions of this Master Agreement and any applicable Service Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to its conflict of law provisions and without regard to your state of residence.
In the event a dispute arises either directly or indirectly, under this Master Agreement, the venue for any and all litigation resulting there from shall be in a court of appropriate jurisdiction in Columbia, Tennessee. The prevailing party in any such action shall be entitled, subject to applicable law, to payment by the other party of its reasonable attorney’s fees (which may be or include the allocable cost of in-house counsel) and costs, including fees for any litigation, arbitration, mediation, appeal, or bankruptcy proceedings, and any post-judgment collection actions, if applicable.
S. Miscellaneous Provisions.
- Headings. The headings and captions contained in this Master Agreement and any applicable Service Agreement are included only for convenience of reference and do not define, limit, explain, or modify this Master Agreement and any applicable Service Agreement or its interpretation, construction, or meaning.
- Severability. The holding of any provision of this Master Agreement and any applicable Service Agreement as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of this Master Agreement and any applicable Service Agreement, which shall remain in full force and effect.
- Waiver. No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of you under this Master Agreement and any applicable Service Agreement shall bind the Bank to waive the same term, condition, or obligation again, nor shall any other provision, condition, term, or obligation hereof be affected by such a waiver.
- Binding Effect. This Master Agreement and any applicable Service Agreement shall inure to the benefit of and be binding upon the successors, heirs, trustees, and permitted assigns of the parties hereto.
- Entire Agreement. This Master Agreement and any applicable Service Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof. All contemporaneous agreements or understandings concerning the subject matter hereof, whether oral or written, are merged into this Master Agreement.
- Transfers and Assignments. You cannot transfer or assign any rights or obligations under this Master Agreement and any applicable Service Agreement without Bank’s written consent. The Bank may assign its rights and delegate its duties under this Master Agreement and any applicable Service Agreement to a company affiliated with the Bank or to any other party.
No signature is required on this Master Agreement. By signing an Enrollment Form, Company acknowledges its receipt of and agreement to the terms of this Master Agreement.