Online & Mobile Terms & Conditions

Online & Mobile Service Terms & Conditions
 
The CUSTOMER agrees as follows:
 
1.1 Notices.
 
Any notice or other communication required or permitted to be given under these Online Service Terms and Conditions to the Customer may be delivered or sent by U.S. Mail or private courier to the mailing address on file for the Customer, by electronic delivery to the email address on file for Customer, or any other method allowed by law, and unless otherwise provided herein, such notices shall be deemed given to the Customer when sent.
 
Any written notice or other communication required or permitted to be given under these Online Service Terms and Conditions to the Bank may be delivered or sent by U.S. Mail to Bank at the following address:
 
MainStreet Bank
Attn: Connect Support Department
10089 Fairfax Blvd
Fairfax, VA 22030
 
unless another address is substituted by notice delivered or sent as provided herein. Except as otherwise stated herein, any such notices to the Bank shall be deemed given when received. If the Customer has any questions,
the Customer may visit any Branch location, or call (703) 481-4589.
 
1.2 Deposit Account Terms and Conditions.
 
The Customer acknowledges and agrees that the Customer’s deposit account(s) maintained with the Bank (individually “Account,” collectively “Accounts”) are an integral part of the Online Service offered by the Bank and that all transactions and Services initiated or processed pursuant to this Online Service are subject to the terms and conditions of the rules, regulations and agreements (“Terms and Conditions”) governing accounts in effect from time to time between the Customer and the Bank including without limitation, the arbitration provisions. The Deposit Account Agreement is expressly incorporated herein by reference. The terms and conditions of the Online Service shall control over any inconsistent terms and conditions of the Deposit Account Agreement. The Customer acknowledges that it has signed and executed all agreements, resolutions, signature cards and forms governing the Customer’s deposit account(s) required by the Bank. If the Customer has not signed the foregoing forms required by the Bank, by accepting these Online Service Terms and Conditions, the Customer acknowledges that it has read the contents of and agrees to be bound by the terms of those forms, agreements and documents, and adopts and ratifies, as an authorized signatory(s), the signature(s) of any person(s) who has signed a signature card or any check on the Customer’s account.
 
1.3 Data and Information Supplied by The Customer.
 
The Customer shall have the sole responsibility of ensuring the accuracy and correctness of the data transmitted. The Customer acknowledges and agrees that the Bank shall not examine the data for correctness and the Bank shall not have any responsibility for detecting errors in the data transmitted by the Customer. The data transmitted by the Customer must be legible, correct and complete. The Bank shall not process, and the Bank shall not be liable to the Customer for failure to process, the data if it is not in the format specified by the Bank or if the data is incomplete. The Bank shall not be liable for errors or omissions caused by data that is rejected as the result of the Customer’s failure to provide the data in accordance with the standards specified in the Service terms and conditions and the Operating Instructions.
 
1.4 Update Notice.
 
The Customer shall provide written notice to the Bank of any changes to the information previously provided by the Customer to the Bank, including, but not limited to, any additional locations, any change in business, any new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided and method of conducting sales. Such notice must be received by the Bank within five (5) business days of the change. The Customer shall provide any additional information requested by the Bank within five (5) business days of such request.
 
1.5 Security Procedures.
 
The Bank shall provide the Customer with one or more identification number(s) (“MainStreet Bank Online Banking ID(s)”, “User ID”, or “ID(s)”) and a MainStreet Bank Online Banking Password (“Password”) (collectively, a “Security Code”) to access the Online Service. The use of the Security Code, in addition to other authentication methods described below, is a security procedure established by the Bank to authenticate the identity of the person attempting to gain access to the Service (“Security Procedure”). The Security Procedure is not designed for the detection of errors. The Bank may require the Customer to change its Security Code from time to time for security reasons. The Customer should keep its Security Code in a secure location. Any person having access to the Customer’s Security Procedures 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. The Customer, or if the Customer is a Business or non-personal Customer, the Customer’s User(s), agents, and employees are responsible for safeguarding its Security Procedures. Providing these Security Procedures to another person effectively constitutes a grant of authority to access the Customer’s Accounts.
 
If the Customer is a Business or non-personal Customer, in addition to the Security Code(s) provided by the Bank to the Customer, the Bank will also make available “Commercially Reasonable Security Procedures” (“Security Procedures”) that the Customer can elect to use. The Bank may require the Customer to accept certain Security Procedures based on the Service(s) the Customer chooses to enroll in or the Customer’s activity. The Bank may also at any time and from time to time at its sole discretion, enable certain Security Procedures if the Bank, in its judgment and discretion, believe such change to be necessary or desirable to protect the security of the Bank’s systems and assets.
 
If the Customer is a Business or non-personal Customer, the Customer acknowledges that the Bank has offered to the Customer Security Procedures to verify the authenticity of transactions, which Procedures the Customer agrees are reasonable in the context of the Customer’s operation, requirements and internal procedures. The Customer acknowledges that the Bank has offered this Service and the Customer has elected to make transactions using the Customer’s selected Security Procedures. The Customer acknowledges and understands that selecting Security Procedures other than those offered by the Bank may substantially increase the risk of loss to the Customer. THE CUSTOMER HEREBY AGREES TO BE BOUND BY ANY TRANSACTION, WHETHER OR NOT AUTHORIZED, ISSUED IN CUSTOMER’S NAME AND ACCEPTED BY BANK IN COMPLIANCE WITH CUSTOMER’S SELECTED SECURITY PROCEDURES.
 
a. The Customer agrees to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and if the Customer is a Business or non-personal Customer, to provide or make available the same only to the Customer’s authorized representative(s). The Customer agrees not to disclose or provide any Security Procedures or Security Devices to any unauthorized person. The Customer also agrees that Users shall not share Security Procedures or Security Devices with each other. Where it has the ability to change or modify a Security Procedure or Security Device from time to time (e.g., an ID or Password), the Customer agrees to change Security Procedures and Security Devices frequently in order to ensure the security of the Security Procedure and Security Device. The Customer agrees to notify the Bank immediately, according to notification procedures prescribed by the Bank, if the Customer believes that any Security Procedures or Security Device has been stolen, compromised, or otherwise become known to persons other than the Customer or, if the Customer is a Business or non-personal Customer, its authorized representative(s), or if the Customer believes that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, the Bank may issue the Customer a new Security Device or establish new Security Procedures as soon as reasonably practicable, but the Bank shall not be liable to the Customer or any third party for any delay in taking such actions. The Customer agrees to indemnify, defend all claims, and hold the Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, caused by the Customer, or if the Customer is a Business or non-personal Customer, your employees’, or agents’ failure to keep the Security Procedures or Security Devices confidential and secure.
b. The Bank reserves the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or replace any or all Security Devices, at any time and from time to time at its sole discretion. The Bank will endeavor to give the Customer reasonable notice of any change in Security Procedures or Security Devices; provided that the Bank may make any change in Security Procedures or Security Devices without advance notice to the Customer if the Bank, in its judgment and discretion, believe such change to be necessary or desirable to protect the security of the Bank’s systems and assets. The Customer’s implementation and use of any changed Security Procedures or Security Devices after any change in Security Procedures or Security Devices shall constitute the Customer’s agreement to the change and the Customer’s agreement that the applicable Security Procedures and Security Devices, as changed, are commercially reasonable and adequate for the purposes intended.
 
1.6 Physical and Electronic Security.
 
a. The Customer is solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in the Customer’s possession or under the Customer’s control. The Bank is 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 or any other Service(s) provided by the Bank. Any material downloaded or otherwise obtained is obtained at the Customer’s own discretion and risk, and the Bank is not responsible for any damage to the Customer’s 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. The Customer is solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to the Customer’s operating systems, and for protecting, securing, and backing up any data and information stored in or on the Customer’s operating systems. The Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on the Customer’s operating systems or accessed through an Internet connection.
b. The Customer acknowledges and agrees that it is the Customer’s responsibility to protect itself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”). If the Customer is a Business or non-personal Customer, the Customer agrees to educate User(s), agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. The Customer acknowledges that the Bank will never contact the Customer by a non-encrypted e-mail or unsecure message in order to ask for or to verify Account numbers, Security Procedures or Security Devices, or any sensitive or confidential information as applicable. In the event the Customer receives an e-mail or other electronic communication that the Customer believes, or has reason to believe, is fraudulent, the Customer agrees that neither the Customer, or if the Customer is a Business or non-personal Customer, the Customer’s User(s), agents, nor employees shall 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. The Customer agrees that the Bank is not responsible for any losses, injuries, or harm incurred by the Customer as a result of any electronic, e-mail, or Internet fraud.
c. There are security risks associated with the Service(s) offered by the Bank. The hardware and software that the Customer use(s) in connection with the Service may be subject to unauthorized tracking or other manipulation by spyware or other malicious code. The Bank is not responsible for advising the Customer of the existence or potential effect of such malicious code, and the Customer’s use of its hardware and software is at the Customer’s own risk. The Bank will use commercially reasonable efforts to secure the Service to prevent access by unauthorized persons and to prevent the introduction of any malicious code, such as a computer virus. However, no security system is failsafe, and despite the Bank’s efforts the security of the Service could be compromised or malicious code could be introduced by third parties. The Bank will provide the Customer with notice if the Customer’s information is the subject of a security breach as required by applicable law.
d. In the event of a breach of the Customer’s Security Procedure(s) or Security Device(s) as applicable, the Customer agrees to assist the Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing the Bank or the Bank’s agent access to the Customer’s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure or Security Device. The Customer further agrees to provide to the Bank any analysis of such equipment, device, or software or any report of such analysis performed by the Customer, the Customer’s agents, law enforcement agencies, or any other third party as applicable. Failure of the Customer to assist the Bank shall be an admission by the Customer that the breach of the Customer’s Security Procedure or Security Device was caused by a person who obtained access to transmitting facilities of the Customer or who obtained information facilitating the breach of the Customer’s Security Procedure or Security Device from the Customer and not from a source controlled by the Bank.
 
1.7 Hardware and Software.
 
The Customer understands it must, and hereby agrees to, at its sole cost and expense, use computer hardware and software that meets all technical requirements for the proper delivery of the Online Service and that fulfills the Customer’s obligation to obtain and maintain secure access to the Internet. The Customer understands and agrees it may also incur, and shall pay, any and all expenses related to the use of the Online Service, including, but not limited to, telephone service or Internet service charges. The Customer is solely responsible for the payment of any and all costs and expenses associated with meeting and maintaining all technical requirements and additional items necessary for the proper use of the Online Service. The Customer understands and agrees that it is solely responsible for the operation, maintenance and updating of all equipment, software and services used in connection with the Online Service and the cost thereof, and the Customer hereby agrees that it will perform, or cause to be performed, all vendor recommended maintenance, repairs, upgrades and replacements, and such performance shall be rendered by properly trained personnel, whether they are the Customer, employees of the Customer, or third-party employees. The Bank is not responsible for, and the Customer hereby releases the Bank from any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet to deliver the Online Service. The Bank is not responsible for any errors or failures resulting from defects in or malfunctions of the Customer’s computer hardware or software. In addition to installing antivirus software, the Customer hereby agrees to scan its computer hardware and software on a regular basis (one or more times per month) using a reliable computer virus detection product in order to detect and remove computer viruses.
 
All rights, titles and interest in and to (a) any and all computer programs, including, but not limited to, the object and source codes therefore, and any and all updates, upgrades, fixes and enhancements thereto, together with any and all documentation, user guides and instructions pertaining thereto (everything in this clause (a), collectively, “Software”), and (b) any and all users guides, instructions and other documentation provided to, or used by, the Customer in connection with the Online Service (everything in this clause (b) collectively, the “Documentation”) shall be, and remain, the property of the Bank or any third party Software provider, as applicable. Unless otherwise expressly authorized, the Customer may not (1) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit, reverse engineer, reverse compile or create derivative works of, the Software in any form or (2) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit the Documentation.
 
1.8 Internet Disclaimer.
 
The Bank does not and cannot control the flow of data to or from the 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 the Customer’s connections to the Internet (or portions thereof). The Bank cannot guarantee that such events will not occur. Accordingly, the Bank disclaims any and all liability resulting from or related to such events and in no event shall the Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, the Customer’s ability to connect to the Internet, or the Bank’s ability to connect to the Internet on the Customer’s behalf.
 
1.9 Service Limits.
 
The Customer agrees that the Bank may establish limits or restrictions on Services provided through the Online Service and that the Bank may amend those limits without notice. The limits or restrictions may apply to transaction amounts, types of accounts that are eligible for the Service, the frequency of the transactions or any other limits or restrictions that the Bank deems necessary. The Customer agrees to abide by and honor the limits or restrictions established by the Bank. The Customer also agrees that the Bank shall have no liability to the Customer for refusal to process any transaction or to act on any request by the Customer that exceeds the limit or restriction, or if the Customer has insufficient available funds to effect any transactions.
 
1.10 Changes and Modifications.
 
The Bank may amend, add to, modify or delete the terms or replace these Online Service Terms and Conditions in its entirety at any time, in its sole discretion, by giving written notice to the Customer. Notwithstanding the foregoing, the Bank may amend the Personal or Business Fee Schedule at any time, in its sole discretion with or without notice to the Customer. In the event performance of the Online Service provided herein in accordance with the terms and conditions of the Online Service would result in a violation of any present or future statute, regulations or government policy to which the Bank is subject, and which governs or affects the transactions contemplated by this Online Service, then this Online Service shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and the Bank shall incur no liability to the Customer as a result of such violation or amendment. Any practices or course of dealings between the Bank and the Customer, or any procedures or operational alternatives used by them, shall not constitute a modification of these Online Service Terms and Conditions, nor shall they be construed as an amendment to these Online Service Terms and Conditions.
 
Further, the Bank may, from time to time, revise or update, or perform maintenance upon, its program, the Online Service, and/or related material, resulting in interrupted service or errors in the Online Service or rendering prior versions obsolete. The Bank also may need to change the scope of the Online Service from time to time. The Bank will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided. The Bank reserves the right to terminate these terms and conditions as to all prior versions of its programs, the Online Service, and/or related material and limit access to the Banks more recent versions and updates. Use of the Online Service after the effective date of any such revisions, updates, and/or changes will constitute the Customer’s consent to the same.
 
1.11 Deadlines.
 
The Customer shall deliver or transmit all data or information to the Bank by the deadline(s) specified in the Bank’s Processing Schedule. The 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.
 
1.12 Customer’s Duty to Inspect.
 
The Bank will provide notice of receipts of deposits to the Customer’s Accounts with the Bank on the Customer’s periodic Account statement. If the Customer uses the Bank’s information/balance reporting services, the Customer can also receive notice through various reports or terminal printouts. The Customer shall inspect all reports, journals, and other material evidencing the output of the Service(s) performed by the Bank. The Customer is responsible for detecting and reporting to the Bank any discrepancy between the Customer’s records and the records provided by the Bank to the Customer. The Customer must report all errors to the Bank for Services performed and reported to the Customer daily by the close of business on the Banking Day following the day on which the report, journal or other material evidencing the output of the Services is rendered. The Customer must report all other errors within a reasonable time not to exceed fourteen (14) days from the date that the error is made. Except as outlined in Section 1.38, failure of the Customer to promptly report errors within such specified time shall preclude the Customer from asserting the error, discrepancy or any loss caused by the error against the Bank.
 
The Customer should notify the Bank immediately if it believes any Security Code has been lost or stolen, that someone has gained access to the Customer’s Security Procedure(s) or Security Device(s), or that someone has transferred or may transfer money from the Customer’s Account without its permission or if the Customer suspects any fraudulent activity on its Account. To notify the Bank, call the number provided in Section 1.1.
 
1.13 Payment for Services
 
So long as these terms and conditions remain in effect, the Customer agrees to pay to the Bank the normal deposit and loan or line of credit account service charges established from time to time by the Bank and, in addition thereto, the fees and charges set forth in the Personal or Business Fee Schedule posted online or provided from time to time hereafter to the Customer, and all such other fees and charges as may be agreed upon from time to time by the Customer and the Bank. The Customer’s use of the Service(s) after changes have been made shall constitute the Customer’s agreement to the same.
 
The Customer may contact the Bank as provided in Section 1.1 to obtain a current Personal or Business Fee Schedule. All fees are subject to change from time to time by the Bank, in the Bank’s sole discretion, with or without any notice.
The Customer authorizes the Bank to deduct any charges for the services from any account the Customer has with the Bank, even if such deductions cause an overdraft in the account. Should the Customer fail or refuse to pay any charges for the Online Service or services accessed through the Online Service, the Customer agrees to pay all collection costs (including reasonable attorney’s fees) which may be incurred by the Bank. The Bank shall have the right to increase or decrease any charges imposed for the Services.
 
1.14 Taxes, Tariffs, and Assessments.
 
In addition to the Service fees, the Customer agrees to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, and/or the software or equipment made available to the Customer (excluding any income tax payable by the Bank), and any fees or charges provided for in these terms and conditions between the Bank and the Customer with respect to the Account (the “Account Agreement”). The Customer is also responsible for the costs of any communication lines and any data processing charges payable to third parties.
 
1.15 Security Interest.
 
To secure the payment and performance of the Customer’s obligations set forth herein pertaining to any Service(s), the Customer grants to the Bank a security interest in and pledges and assigns to the Bank all of the Customer’s rights, titles, and interest in the following described property, whether now owned or hereafter existing or acquired and wherever located: (a) all monies, instruments, savings, checking and other accounts of the Customer (excluding IRA, Keogh, trust accounts and other accounts subject to tax penalties if so assigned) that are now or in the future in the Bank’s custody or control; (b) any other collateral described in any security instrument securing the obligations of the Customer to the Bank or any other obligation of the Customer to the Bank; and (c) all proceeds and products of the property as well as any replacements, accessions, substitutions, and additions to any of the above.
 
1.16 Stop Payment Orders.
 
Any stop payment order which the Customer wishes to place on a check drawn on an account that is the subject of this Online Service or is otherwise related to this Online Service shall be placed in accordance with the Bank’s normal stop payment procedures for other accounts in effect at that time.
 
1.17 Bank Shall Not Examine Items.
 
The Customer acknowledges and agrees that the Bank will not examine checks, drafts and other items issued by the Customer or payable to the Customer and received by the Bank and processed in conjunction with the Online Service rendered by the Bank. Therefore, legends and other instructions placed on items by the Customer or other parties, such as, but not limited to, “not valid over $500,” “void after 90 days,” “full accord and satisfaction,” shall not be discovered by the Bank, shall not be binding on the Bank and shall not be enforceable against the Bank. Likewise, the Bank shall not discover alterations, postdated checks, stale dated checks, number of required signatures on checks, or discrepancies between the amount of the check or item as written in numbers and words, or other irregularities on the face of the check or item. The Customer further acknowledges and agrees that the Bank shall not be liable to the Customer for any loss that the Customer may suffer as the result of the Bank’s processing items containing such legends, instructions, irregularities or signature requirements.
 
1.18 Privacy and Confidentiality.
 
a. Privacy Policy. The importance of maintaining the confidentiality and privacy of the information provided by you is one of our highest priorities. We may disclose information about your Accounts or the Transfers you make: (a) where it is necessary for completing the transfers or processing or maintaining your Accounts; (b) in order to verify the existence or condition of your Accounts for a third party such as a credit bureau or merchant; (c) in order to comply with legal process, government agency or court orders; (d) to companies that perform marketing services on our behalf or to other financial institutions with whom we have joint marketing agreements; or (e) otherwise as permitted by law. An explanation of our privacy policy will be provided to you separately in the manner required by applicable law. Please review it carefully. Our privacy policy may change from time to time and is always available on our website and at our banking locations.
b. All information relating to the assets, liabilities or other affairs disclosed to us by you in connection with these terms and condition is confidential. We shall not, without the express written consent of you, disclose or permit access to any such information by any person, firm or corporation and we 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 Online Service and any applicable Service accessed through the Online Service, or to any other party to which we may be required by law to report such information. You agree to hold confidential and to use only in connection with the Online Service provided under these terms and conditions and any applicable Service accessed through the Online Service all information furnished to you by us or by third parties from whom we have secured the right to use the Online Service, including, but not limited to, our 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 us and not reveal such information to any other party and shall not make use of such information for your own benefit. Ours 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 these terms and conditions, 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 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 us in connection with these terms and conditions and any applicable Service accessed through the Online Service or supplied or made available to you by us are the exclusive property of the Bank, its agents, suppliers, or contractors, and further agree that such material shall not be copied or used in any manner or for any purpose without the express written consent of the Bank. This clause shall survive the termination of these terms and conditions.
 
1.19 Limitation of Liability and Indemnification.
 
The Customer agrees:
 
a. THAT THE BANK SHALL NOT BE RESPONSIBLE OR LIABLE TO THE CUSTOMER OR TO ANY OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF THE USE BY THE CUSTOMER OF ANY SERVICE EVEN IF THE CUSTOMER, THE BANK OR THE BANK’S SERVICE PROVIDER(S) HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. TO THE FULLEST EXTENT ALLOWED BY LAW, THE BANK’S LIABILITY TO THE CUSTOMER UNDER THESE TERMS AND CONDITIONS SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM THE BANK’S FAILURE TO EXERCISE ORDINARY CARE OR TO ACT IN GOOD FAITH. WITHOUT LIMITING THE FOREGOING, THE BANK SHALL NOT BE RESPONSIBLE FOR ACTS OR OMISSIONS OF THE CUSTOMER OR IF THE CUSTOMER IS A BUSINESS OR NON-PERSONAL CUSTOMER, THE CUSTOMER’S AGENT(S) OR OF ANY THIRD PARTY, INCLUDING THE BANK’S VENDOR(S), ANY FEDERAL RESERVE BANK, ANY COURIER SERVICE, THE NATIONAL AUTOMATED CLEARING HOUSE ASSOCIATION (“NACHA”), ANY TRANSMISSION OR COMMUNICATIONS FACILITY, OR ANY OTHER THIRD PARTY INVOLVED WITH THE ONLINE SERVICE OR ANY SERVICE ACCESSED THROUGH THE ONLINE SERVICE. NO SUCH THIRD PARTY SHALL BE DEEMED THE BANK’S AGENT. SUBJECT TO THE LIMITATIONS IN THESE TERMS AND CONDITIONS, AND UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, ANY DAMAGES OR OTHER COMPENSATION DUE TO THE CUSTOMER IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE ONLINE SERVICE SHALL BE LIMITED TO THE LESSOR OF: (A) THE CUSTOMER’S ACTUAL AND DIRECT DAMAGES, (B) THE AMOUNT OF THE TRANSACTION TO WHICH THE ERROR, OMISSION, OR OTHER DISCREPANCY RELATES, OR (C) THE AMOUNT OF FEES RECEIVED BY THE BANK FOR THE SERVICE FOR WHICH THE CLAIM IS MADE DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WHICH SHALL BE DETERMINED BY THE EARLIER OF THE DATE WHEN THE CUSTOMER FIRST BECAME AWARE OF THE CLAIM OR THE DATE WHEN, THROUGH THE EXERCISE OF REASONABLE CARE, THE CUSTOMER REASONABLY SHOULD HAVE BECOME AWARE OF THE CLAIM.
c. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER’S USE OF THE SERVICES SHALL BE AT THE CUSTOMER’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY THE BANK ON AN “AS IS” BASIS.
d. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO THE CUSTOMER OR TO ANY OTHER PERSON AS TO THE ONLINE SERVICE OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. THE CUSTOMER AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THESE TERMS AND CONDITIONS OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO.
e. THE BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO THE CUSTOMER AS TO ANY COMPUTER HARDWARE, SOFTWARE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE CUSTOMER’S COMPUTER SYSTEMS OR RELATED EQUIPMENT, THE CUSTOMER’S SOFTWARE, OR THE CUSTOMER’S INTERNET SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF THE BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT THE CUSTOMER USES, 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.
f. THE BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF THE CUSTOMER’S 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 THE BANK TO THE CUSTOMER IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM THE CUSTOMER TO THE BANK OR FROM THE BANK TO THE CUSTOMER. THE BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING THE CUSTOMER OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF THE CUSTOMER’S COMPUTER HARDWARE OR SOFTWARE.
g. WITHOUT LIMITATION ON THE FOREGOING, THE CUSTOMER AND NOT THE BANK, WILL BE RESPONSIBLE FOR ALL CLAIMS OF ANY SORT BY THIRD PARTIES OR OTHERS ARISING OUT OF THESE TERMS AND CONDITIONS, INCLUDING ALL LOSSES AND EXPENSES INCURRED BY THE BANK ARISING OUT OF THE CUSTOMER’S FAILURE TO REPORT REQUIRED CHANGES, TRANSMISSION OF INCORRECT DATA TO THE BANK, OR FAILURE TO MAINTAIN COMPLIANCE WITH THE LAWS, REGULATIONS AND RULES. WITHOUT LIMITING OR SUPERSEDING ANY LIMITATION OF LIABILITY PROVISIONS IN THESE TERMS AND CONDITIONS, AND EXCEPT FOR THOSE LOSSES CAUSED DIRECTLY BY THE BANK’S GROSS NEGLIGENCE OR TO ACT IN GOOD FAITH, THE CUSTOMER AND NOT THE BANK, SHALL BE RESPONSIBLE FOR ANY AND ALL LOSSES, COSTS, SUITS, DAMAGES, CLAIMS, LIABILITIES AND EXPENSES ARISING FROM OR RELATED IN ANY WAY TO (I) ANY SERVICES PERFORMED IN CONNECTION WITH THE ONLINE SERVICE, (II) THE BANK’S ACTION OR INACTION IN ACCORDANCE WITH OR RELIANCE UPON ANY INSTRUCTIONS OR INFORMATION RECEIVED FROM ANY PERSON REASONABLY BELIEVED BY THE BANK TO BE THE CUSTOMER, OR IF THE CUSTOMER IS A BUSINESS CUSTOMER, AN AUTHORIZED REPRESENTATIVE OF THE CUSTOMER OR AUTHORIZED USER, (III) THE CUSTOMER’S BREACH OF ANY OF THE CUSTOMER’S COVENANTS, AGREEMENTS, RESPONSIBILITIES, REPRESENTATIONS OR WARRANTIES UNDER THESE TERMS AND CONDITIONS, AND/OR (IV) THE CUSTOMER’S BREACH OF APPLICABLE LAWS, RULES OR REGULATIONS.
IN THE PERFORMANCE OF THE SERVICE, THE BANK SHALL BE ENTITLED TO RELY SOLELY ON THE INFORMATION PROVIDED BY THE CUSTOMER, IRRESPECTIVE OF THE ACCURACY OR COMPLETENESS THEREOF, AND MAY RELY ON THESE TERMS AND CONDITIONS. THE BANK SHALL NOT BE RESPONSIBLE FOR PERFORMING ANY SERVICE NOT EXPRESSLY CONTRACTED FOR IN WRITTEN AGREEMENT WITH THE BANK.
THE BANK SHALL NOT BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF TRANSFEREE INSTITUTIONS AND THEIR PERSONNEL WHO ARE NOT AGENTS OF THE BANK. THE BANK SHALL NOT BE RESPONSIBLE FOR THE CUSTOMER’S ACTS OR OMISSIONS (INCLUDING, WITHOUT LIMITATION, THE AMOUNT, ACCURACY, TIMELINESS OF TRANSMITTAL OR AUTHORIZATION OF ANY ENTRY RECEIVED FROM THE CUSTOMER) OR THOSE OF ANY OTHER PERSON AND NO SUCH PERSON SHALL BE DEEMED THE BANK’S AGENT.
THE CUSTOMER HEREBY RELEASES THE BANK FROM ANY AND ALL CLAIMS OR DAMAGES RESULTING FROM, OR RELATED TO, ANY COMPUTER VIRUS, UNAUTHORIZED INTRUSION OR RELATED PROBLEMS THAT MAY BE ASSOCIATED WITH USING ELECTRONIC MAIL, THE INTERNET OR THE CUSTOMER’S EQUIPMENT.
THE CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD THE BANK HARMLESS, AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY ACTIONS, CAUSES OF ACTIONS, CLAIMS, DAMAGES, LOSSES, LIABILITIES OR EXPENSES (INCLUDING ATTORNEY’S FEES AND COSTS) RESULTING FROM OR ARISING OUT OF OR RELATED TO, WITHOUT LIMITATION (A) THE ACTS OR OMISSIONS BY THE CUSTOMER, OR OF THE CUSTOMER IS A BUSINESS OR NON-PERSONAL CUSTOMER, ITS EMPLOYEES OR AGENTS INCLUDING NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF ANY WARRANTY OR FAILURE TO COMPLY WITH THESE TERMS AND CONDITIONS; (B) ANY MISUSE OF THE SERVICE BY THE CUSTOMER, OR ITS EMPLOYEES OR AGENTS; (C) THE FAILURE OF THE CUSTOMER, OR IF THE CUSTOMER IS A BUSINESS OR NON-PERSONAL CUSTOMER, ITS AGENTS OR EMPLOYEES TO COMPLY WITH APPLICABLE STATE AND FEDERAL LAWS AND REGULATIONS; (D) ACTIONS BY THIRD PARTIES, SUCH AS AN INTRODUCTION OF A VIRUS, THAT DELAY, ALTER OR CORRUPT THE TRANSMISSION OF INFORMATION TO THE BANK; AND (E) THE CUSTOMER’S BREACH OF ANY OF THE CUSTOMER’S OBLIGATIONS UNDER THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN THE CUSTOMER AND THE BANK.
IN THE EVENT OF ANY LOSS SUSTAINED BY THE CUSTOMER WHICH IS NOT OTHERWISE EXCLUDED FROM LIABILITY AND ARISES OUT OF ANY MISDIRECTED OR UNAUTHORIZED PAYMENTS OR TRANSFERS RESULTING FROM EITHER GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY THE BANK, THE BANK’S LIABILITY SHALL BE LIMITED TO THE RETURN OF THE IMPROPERLY REMOVED OR TRANSFERRED FUNDS TO THE DESIGNATED ACCOUNT FROM WHICH THEY WERE REMOVED TOGETHER WITH INTEREST THEREON IN AN AMOUNT EQUAL TO THE INTEREST WHICH COULD OTHERWISE HAVE BEEN EARNED ON THE FUNDS MADE UNAVAILABLE TO THE CUSTOMER COMPUTED ON A DAILY BASIS AT THE FEDERAL FUNDS RATE IN EFFECT AT THE FEDERAL RESERVE BANK FOR THE PERIOD INVOLVED.
REGARDLESS OF THE LEGAL OR EQUITABLE THEORY OF LIABILITY WHICH THE CUSTOMER MAY ASSERT, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM THE BANK’S ACTS OR OMISSIONS PURSUANT TO THESE TERMS AND CONDITIONS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, THE BANK SHALL BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY LEGAL CONSTRAINT, INTERRUPTION OF TRANSMISSION OR COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR, EMERGENCY CONDITIONS OR OTHER CIRCUMSTANCES BEYOND THE BANK’S CONTROL. IN ADDITION, THE BANK SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN TRANSMITTING AN ENTRY IF SUCH TRANSMITTAL WOULD RESULT IN THE BANK’S HAVING EXCEEDED ANY LIMITATION UPON ITS INTRA-DAY NET FUNDS POSITION ESTABLISHED PURSUANT TO PRESENT OR FUTURE FEDERAL RESERVE GUIDELINES OR IN THE BANK’S REASONABLE JUDGMENT OTHERWISE WOULD VIOLATE ANY PROVISION OF ANY PRESENT OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE OR ANY RULE OR REGULATION OF ANY OTHER U.S. GOVERNMENTAL REGULATORY AUTHORITY.
 
1.20 Bank’s Obligation; Attorneys’ Fees.
 
The Bank agrees to use ordinary care in rendering the Services under these terms and conditions and any applicable Service(s) provided in accordance with the Online Service. The Customer recognizes and agrees that ordinary care does not mean error free. The Customer agrees to pay all attorneys’ fees, costs and expenses the Bank may incur in collecting any sums owed by the Customer to the Bank for overdrafts, service charges or otherwise or in enforcing any rights the Bank may have under these terms and conditions and any applicable Service or applicable law, rule or regulation applicable to the Customer’s account(s) or the Services rendered by the Bank under this Online Service. The Customer also agrees to pay all attorneys’ fees, costs and expenses that the Bank may incur as the result of defending any claim or action made against the Bank by the Customer, or on the Customer’s behalf where the Bank is found not to be liable for such claim. In no event shall the Bank be liable to the Customer for attorneys’ fees incurred by the Customer in any action brought against Bank by the Customer.
 
The Bank’s sole responsibility for an error in a transfer will be to correct the error. Without limiting the generality of the forgoing, the Bank will not be responsible for the following matters, or for errors or failures of Services provided by the Bank as result of:
a. Access. The Bank will not be liable under these terms and conditions for failure to provide access or for interruptions in access to its Online Service due to a system failure or due to other unforeseen acts or circumstances.
b. The Customer’s Computer Equipment & Your Software. The Bank will not be responsible for any errors or failures from any malfunction of the Customer’s computer or any computer virus or other problems related to the Customer’s computer equipment used with the Bank’s Services.
The Bank is not responsible for any error, damages or other loss the Customer may suffer due to malfunction or misapplication of any system the Customer uses, including its browser (Netscape Navigator®, Microsoft Explorer®, or otherwise), its Internet service provider, its personal financial management or other software (such as Quicken® or Microsoft Money®), or any equipment the Customer may use (including its telecommunications facilities, computer hardware and modem) to access or communicate with the Online Service.
c. Any Transaction or Instruction That: (i) exceeds the Customer’s collected and available funds on deposit with the Bank; (ii) is not in accordance with any condition indicated by the Customer and agreed to by the Bank; (iii) the Bank has reason to believe may not be authorized by the Customer; (iv) involves funds subject to hold, dispute, or legal process preventing their withdrawal; (v) 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; (vi) is not in accordance with any other requirement stated in these terms and conditions and any applicable Service in connection with the Online Service or any Bank policy, procedure or practice; or, (vii) for the protection of the Bank or the Customer, the Bank has reasonable cause not to honor.
 
1.21 Compliance with Laws, Rules, and Regulations.
 
The Customer agrees to comply with all existing and future operating procedures used by the Bank for processing of transactions. The Customer further agrees 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, NACHA and any other clearinghouse or other organization in which the Bank is a member or to which rules the Bank has agreed to be bound. These laws, procedures, rules, regulations, and definitions shall be incorporated herein by reference.
 
1.22 Prohibited Transactions
 
The Customer agrees not to use or attempt to use the Online Service (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 the Customer is bound, (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (d) to engage in any transaction or activity that is not specifically authorized and permitted by these terms and conditions. The Customer acknowledges and agrees that the Bank has no obligation to monitor the Customer’s use of any Service for transactions and activity that is impermissible or prohibited under these terms and conditions; provided, however, that the Bank reserves the right to decline to execute any transaction or activity that the Bank believes violates these Online Service Terms and Conditions.
 
1.23 Force Majeure.
 
The Bank shall not be responsible for any liability, loss, or damage resulting from the Bank’s failure to perform any Service or to perform any other obligations under these Online Service Terms and Conditions 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 the Customer or third parties and their personnel; criminal acts; or generally any cause reasonably beyond the Bank’s control.
 
1.24 Reimbursement.
 
Any reimbursement by the Bank for any liability hereunder may be made either directly to the Customer or by adjustment of the aggregate ledger and collected balances of the Customer’s Accounts.
 
1.25 Indemnification.
 
The Customer will be liable for, hold harmless, and will indemnify the Bank, and their employees and agents from and against all claims of any sort by third parties or others arising out of these terms and conditions, including all losses and expenses incurred by the Bank arising out of the Customer’s failure to report required changes, transmission of incorrect data to the Bank, or failure to maintain compliance with the laws, regulations and rules. Without limiting or superseding any of the indemnification provided to the Bank in the Online Service Terms and Conditions provided herein, except for those losses caused directly by the Bank’s failure to exercise ordinary care or to act in good faith, the Customer agrees to indemnify and hold the Bank, its officers, directors, shareholders, agents, employees and affiliates, and their respected 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 the Online Service, (ii) the Bank’s action or inaction in accordance with or reliance upon any instructions or information received from any person reasonably believed by the Bank to be the Customer, or if the Customer is a business or non-personal Customer, an Authorized User, (iii) the Customer’s breach of any of the Customer’s covenants, agreements, responsibilities, representations or warranties under these terms and conditions, and/or (iv) the Customer’s breach of applicable laws, rules or regulations.
 
1.26 Termination.
 
The Customer and the Bank have the right to terminate these terms and conditions or the Online Service without cause upon ten (10) days advanced written notice to either party. Such notice sent by the Customer to the Bank shall be sent to the address described in Section 1.1 contained herein. Such notice by the Bank to the Customer may be delivered or sent by U.S. Mail or private courier to the mailing address on file for the Customer, by electronic delivery to the email address on file for the Customer, or any other method allowed by law, and unless otherwise provided herein, such notices shall be deemed given to the Customer when sent. Such termination shall not be effective until it is actually received and acknowledged by the Bank. Since the service cancellation request can take several days to process, the Customer should cancel all outstanding payment or transfer orders or other pending transactions, in addition to notifying the Bank of its desire to terminate the Online Service. The Bank will not be liable for payments, transfers, or other transactions not cancelled or payments, transfers or transactions made due to the lack of proper notification by the Customer of the Online Service termination or discontinuance for any reason. The Bank reserves the right to terminate or suspend the Customer’s use of the Service in whole or in part at any time with or without notice. Upon termination, the Customer shall return all software, hardware, storage media, procedure manuals, and all other property of the Bank as applicable. In the event of termination or suspension by the Bank or by the Customer, the Customer shall remain liable for all charges incurred through the date of termination. All substantive and procedural provisions hereof relative to liabilities of the parties shall survive any termination of these terms and conditions.
Notwithstanding the foregoing, the Bank may terminate these terms and conditions and the Online Service immediately by giving written notice to the Customer if: (a) the Customer ceases to conduct business in the ordinary sense, (b) the Customer fails to perform or comply with any of the Online Service Terms and Conditions contained herein, or defaults under any other agreement between the Bank and the Customer, (c) if any proceeding for voluntary or involuntary bankruptcy, insolvency, or similar proceedings is commenced by or against the Customer.
 
1.27 Suspension of Services.
 
Without liability to any party, and without limiting any other right or remedy available to the Bank, the Bank shall be entitled to cease or suspend any Service, in whole or in part, at the Bank’s sole discretion and with or without notice to the Customer.
 
1.28 Arbitration and Waiver of Jury Trial.
 
WITH RESPECT TO DISPUTES SUBMITTED TO ARBITRATION, THE CUSTOMER AND THE BANK EACH WAIVE ALL RIGHTS TO A TRIAL BY JURY. THE CUSTOMER AND THE BANK AGREE THAT THE TRANSACTIONS PROCESSED UNDER THESE TERMS AND CONDITIONS INVOLVES “COMMERCE” UNDER THE FEDERAL ARBITRATION ACT (“FAA”). ANY CONTROVERSY OR CLAIM BETWEEN THE CUSTOMER AND THE BANK, OR BETWEEN THE CUSTOMER AND ANY OF THE BANK’S OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISE OUT OF OR IS RELATED TO THE ONLINE SERVICE OR ANY SERVICE PROVIDED THROUGH THE ONLINE SERVICE, 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 PARTIES SHALL WORK IN GOOD FAITH TO SELECT AND AGREE UPON AN ARBITRATOR WITHIN THIRTY (30) DAYS AFTER A DEMAND FOR ARBITRATION BY EITHER PARTY. THE ARBITRATOR SHALL HAVE SOLE DISCRETION TO USE ANY COMMERCIALLY REASONABLE RULES OF ARBITRATION, UNLESS OTHERWISE AGREED TO IN WRITING BY THE PARTIES. IF THE PARTIES CANNOT AGREE UPON AN ARBITRATOR, THEN EACH PARTY SHALL DESIGNATE AN ARBITRATOR REPRESENTATIVE AND THE ARBITRATOR REPRESENTATIVES SHALL SELECT THE ARBITRATOR. IF A CLAIM IS SUBMITTED TO ARBITRATION, (A) THE CUSTOMER WILL NOT HAVE THE RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL; (B) THE CUSTOMER WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE ARBITRATION RULES; (C) THE CUSTOMER 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; AND (E) THESE TERMS AND CONDITIONS SUPERSEDE ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN THE CUSTOMER AND THE BANK. THIS AGREEMENT TO ARBITRATE DISPUTES WILL SURVIVE THE CLOSING OF THE CUSTOMER’S ACCOUNT(S) AND THE TERMINATION OF THE ONLINE SERVICE OR ANY SERVICE PROVIDED THROUGH THE ONLINE SERVICE.
 
1.29 Governing Law.
 
The rights and obligations of the parties to these Online Service Terms and Conditions shall be governed by the law of the Commonwealth of Virginia.
 
1.30 Miscellaneous Provisions.
 
a. Headings. The headings and captions contained herein are included only for convenience of reference and do not define, limit, explain, or modify these terms and conditions or its interpretation, construction, or meaning.
b. Severability. The holding of any provision of these terms and conditions as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of these terms and conditions, which shall remain in full force and effect.
c. Waiver. No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of the Customer 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.
d. Binding Effect. These terms and conditions shall inure to the benefit of and be binding upon the successors, heirs, trustees, and permitted assigns of the parties hereto.
e. Entire Agreement. These terms and conditions constitute 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 these terms and conditions.
f. Transfers and Assignments. The Customer cannot transfer or assign any rights or obligations under these terms and conditions without the Bank’s written consent. The Bank may assign its rights and delegate its duties under these terms and conditions to a company affiliated with the Bank or to a third party.
g. Cooperation in Loss Recovery Efforts. In the event of any damages for which the Bank or the Customer may be liable to each other or to a third party pursuant to the Online Service provided under these terms and conditions, the Bank and the Customer will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.
h. Tapes and Records. All magnetic tapes, Entries, security procedures and related records used by the Bank for transactions contemplated by these terms and conditions shall be and remain the Bank’s property. The Bank may, at its sole discretion, make available such information upon the Customer’s request. Any expenses incurred by the Bank in making such information available to the Customer shall be paid by the Customer.
i. Recording and use of Communications. The Customer and the Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with these terms and conditions may be electronically recorded and retained by either party by use of any reasonable means. The Bank shall not be obligated to make such recordings.
j. Use of Trademarks. The Customer may not use the Bank’s name or trademarks without the express written consent of the Bank. If the Customer is permitted to use any of the Bank’s name, trademarks or promotional materials, and the Customer is a business or non-personal Customer, the Customer will not indicate, directly or indirectly, that the Bank endorses, or is connected in any way with, any of the Customer’s goods or services.
k. Electronic Notices. The Bank may deliver to the Customer any required disclosures and other notices concerning the Online Service, services related to the Online Service, or the Customer’s Accounts by e-mail or other appropriate electronic means in accordance with these terms and conditions.
The Customer may use e-mail to contact the Bank about inquiries, maintenance and/or some problem resolution issues. E-mail may not be a secure method of communication. Thus the Bank recommends the Customer not send confidential personal or financial information by e-mail. There may be times when the Customer needs to speak with someone immediately (especially to report a lost or stolen Password, or to stop a payment). In these cases, the Customer should not use e-mail. Instead, the Customer should call the Bank at the number provided in Section 1.1 above.
l. Hours of Operation. Bank representatives are available to assist the Customer from the hours of 9:00 a.m. to 5:00 p.m. Eastern Time (Standard or Daylight), Monday through Friday, except holidays, by calling the number provided in Section 1.1 above.
m. Ownership of Website. The content, information and offers on the Bank’s website are copyrighted by the Bank and/or a Vendor of the Bank and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited. The Customer agrees 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 these terms and conditions, without the Bank’s express written permission. Unless otherwise noted, all other trademarks, service marks, and logos used on the Bank’s Online Service sites are the trademarks, service marks or logos of the Bank, or others as indicated.
n. Web-linking Practices. The Bank may provide access to information, products or services offered on other third party web sites. The Bank is not responsible for, nor does control, the content, products, or services provided by linked sites. The Bank does not endorse or guarantee the products, information or recommendations provided by linked sites, and the Bank is not liable for any failure of products or services advertised on those sites. In addition, each third party site may provide less security than the Bank and have a privacy policy different than that of the Bank. The Customer’s access, use and reliance upon such content, products or services is at its own risk.
o. Geographic Restrictions. The Services described in these terms and conditions or through the Online Service for credit and deposit services 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.
1.31 Setup and Use of The Online Service.
a. Eligibility. You must have at least one eligible deposit or loan account with us. If you have more than one Account with us, we will “link” the accounts together unless you request certain accounts not be linked. Accounts which are “linked” under the Online Service will have one common owner and signer. Any non-linked Account will not be accessible through the Online Service. You must use an ID and Password to gain access to the Online Service. Prior to your first use of Online Service, the Bank will assign you an ID and temporary Password required to gain access to the Online Service. The Online Service system will ask you to change your Password the first time that you use the system.
 
“Eligible Accounts” include the following:
 
1. Checking (Demand Deposit) Accounts
2. Savings Accounts
3. Money Market Accounts
4. Insured Cash Sweep Accounts
5. Certificates of Deposit
6. Loans
 
1.32 Access.
 
The Online Service is generally accessible twenty four (24) hours a day, seven (7) days a week, except that the Online Service may be inaccessible for a reasonable period on a daily basis for system maintenance. We are not liable under these terms and conditions or any service agreement as applicable 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 Service at any time and for any reason without notice or refund of fees you have paid. You agree to gain access to the Online Service and to use the Online Service in accordance with the instructions provided to you by us (the “Instructions”). The Bank may change the terms and conditions of this Online Service 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 Section 1.10. Use of the Online Service after the effective date of such changes will constitute your consent to the changes.
 
1.33 Online Service Access.
 
1.33.1 Products and Services Offered.
 
Customers may use the Online Service as applicable to:
 
1. Make transfers between Accounts you may have with us.
2. Obtain Account balances. Your account balance is generally current as of the start of the Business Day as specified in the Bank’s Processing Schedule, 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.
3. Review recent transactions on your Accounts.
4. View copies of Checks drawn on your Account.
5. Transfer money to make loan payments.
6. Access various reports regarding your account information in various formats.
7. Issue Stop Payment Orders on checks drawn on the Customer’s account(s) at the Bank.
8. Utilize Bill Payment Services.
9. Access ACH Origination Services.
10. Access Wire Origination Services.
11. Access Remote Deposit Capture Services.
12. Access Positive Pay Services.
 
These activities are limited to the extent noted herein and in the agreements governing your various accounts with us. Some of these activities are only offered and available to Business and non-personal Customers.
 
1.33.2 Additional Services.
 
Additional services may be included in an update to these Online Service Terms and Conditions or in other separate agreements to notify you of the existence of any new services available through the Online Service. Information about new services may be obtained from our website at http://www.mstreetbank.com. All of the products or services described on the Bank’s website may not be available in all geographic areas. Therefore, you may not be eligible for all the products or services described. We reserve the right to determine your eligibility for any product or service. By using these services when they become available, you agree to be bound by these terms and conditions or separate agreements covering these services.
 
1.33.3 Restrictions; Limits.
 
In most cases you may use the Online Service 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 Online Service account access, restrict Online Service account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account.
 
1.33.4 Vendor.
 
You acknowledge and agree that the Online Service is provided by an independent third party service provider (“Vendor”) as selected by the Bank and that both the Vendor and the Online 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 the Bank. Neither the Bank nor the Vendor is responsible for the actions or omissions of the other
 
1.33.5 Availability of Service.
 
We will use reasonable efforts to make the Online Service available for your use on a continuous basis. The Online Service may be unavailable for short periods of time for regular or emergency system maintenance. We will endeavor to have our scheduled maintenance occur during non-peak hours. In addition, accessibility to the Online Service may be interrupted because of conditions beyond our control, including outages in Internet, cellular or other communications availability. We will use diligent efforts to re-establish the Online Service as promptly as possible. We do not promise the Online Service will always be available for your use. We may elect to discontinue this Online Service at any time. If we choose to discontinue the Online Service, we will provide you with reasonable notice in advance of that fact. We reserve the right at all times to take actions to protect our systems and information, including denial of access to users of the Online Service.
 
1.34 Additional Information about the Services.
 
1.34.1 Account Access.
 
Transfers and Payments from your Account(s) through the Online Service or the Mobile Banking Service will be deducted on the date you instruct us to process the Transfer. 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(s) on the date you want us to make the Transfer or Payment.
 
1.34.2 Processing Fund Transfers.
 
We can process a Transfer until the Cut-Off Time located in the Bank’s Processing Schedule on a Transfer Day. If you request a Transfer after the cutoff time, the Transfer will be processed the following Transfer Day. If you schedule a Transfer for a future date, we will process the transaction after the close of business on that date, if that day is a Transfer Day.
You are fully obligated to us to provide sufficient funds for any transfers you make or authorize to be made. If we complete a 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 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, we may refuse to make the Transfer or we may make the Transfer and overdraw your Account. In either event, you are responsible for any non-sufficient funds (“NSF”) charges that may apply.
 
1.34.3 Cancelling Transfers.
 
You may cancel a pending Transfer or Payment transaction. However, to do so, we must receive your instruction through the Online Service 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.
1.34.4 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 monthly statement period. Each funds transfer through the Online Service from your savings or money market deposit account is counted as one (1) of the six (6) transfers permitted each monthly statement cycle. However, payments to your loan accounts with us are not counted toward this transfer limit for savings/money market deposit accounts.
 
1.34.5 E-Mails.
 
The Bank may not immediately receive an 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 us (see Section 1.1). 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.
 
1.34.6 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 the Online Service on the same business day as an Online Service transaction, and if the account contains insufficient funds to enable both the electronic funds transfer and the Online Service transfer to be made, then the electronic funds transfer will have priority and the Online Banking Services transfer will be refused or will result in an overdraft on your account. This is at the Bank’s sole discretion.
 
1.34.7 Stop Payment Orders.
 
Any stop payment order which the Customer wishes to place on a check drawn on an account that is the subject of this Online Service or is otherwise related to this Online Service shall be placed in accordance with the Bank’s normal stop payment procedures and provisions for other accounts in effect at that time. The Customer acknowledges that a Stop Payment Request (defined herein below) may not be placed on any items other than checks issued by the Customer. Any Stop Payment Request for ACH debits or paper drafts must be placed at a Bank branch office location. If the Customer has elected to issue stop payment orders via Online Service, the following provisions shall apply:
 
1.34.7.1 You have requested us to provide Stop Payment Services under the Online Service 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.
 
1.34.7.2 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.
 
1.34.7.3 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 the 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 the 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.
 
1.34.7.4 Stop Payment Requests that we receive prior to the Cut-Off Time located in the Bank’s Processing Schedule on a Business Day, will be effective on that Business Day. Stop Payment Requests that we receive after that cut-off time may 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.
 
1.34.7.5 The Stop Payment Request will be effective for six (6) 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 the Online Service at least one (1) 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.
 
1.34.7.6 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.
 
1.34.7.7 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.
 
1.35 Bill Payment Service.
 
1.35.1 The Bill Pay Service allows you to schedule bill payments through the Online Service. Bill payments cannot be made from savings accounts, IRAs, lines of credit, installment loans, or certificates of deposit, and, because of the limitations discussed in Section
 
1.34.4, bill payments may not be made from money market accounts.
 
1.35.2 Eligible Payees: You may only designate payees with addresses in the United States. We reserve the right to determine who may be a payee. You may not use the Bill Pay Service to purchase securities, to make federal or state tax payments, or to comply with any court order.
 
1.35.3 Initiating Payments: To initiate a payment, you must identify the person or business you are paying, the payment date, the amount to be paid, and (if you have one) your account number with the payee. You may be asked for additional information when you establish a payee for the first time on our system. You may pay an unlimited number of payees using the Bill Pay Service.
 
1.35.4 Erroneous Payment Requests. You assume sole responsibility for providing us with complete and accurate payment information. We are not responsible for confirming such information, or for identifying or rejecting errors or duplicate payment instructions. If you give us a payment instruction that is incorrect in any way, you agree that we may charge your account for the payment, whether or not the error could have been detected by us. We are not obligated to detect errors in your transfer or payment instructions.
 
1.35.5 Processing Payments. The Bank must receive the Customer’s request prior to the Cut-Off Time located in the Bank’s Processing Schedule. The business day you instruct us to process the payment is the “Payment Initiation Date”. For payments entered prior to the Cut-Off Time on the Payment Initiation Date and that are to be paid electronically, we will withdraw funds from your designated account on the Payment Initiation Date and then will process an Automated Clearing House (electronic) payment on the following business day to the payee. For payments entered prior to the Cut-Off Time on the Payment Initiation Date and that are to be paid by check, we will mail a check to the payee on the Payment Initiation Date. The funds will not be withdrawn from your account until the payee deposits the check and it clears through the Bank. Payments that are to be made either electronically or via check that are entered at or after the Cut-Off Time on the Payment Initiation Date, or anytime on a non-business day, will be processed at the first processing time on the next business day. We do not have to make a payment if you do not have sufficient funds or credit available for the payment on the Payment Initiation Date. Although you can enter a payment request twenty four (24) hours a day, seven (7) days a week, your designated Payment Initiation Date must be on a business day. If you direct us to make a payment on a day other than a business day, we will initiate the payment on the following business day.
 
1.35.6 Scheduling Payments. You should schedule payments sufficiently in advance to ensure that they are received and credited by your payee by the payment due date. WE RECOMMEND THAT YOU SCHEDULE THE PAYMENT INITIATION DATE AT LEAST FIVE (5) BUSINESS DAYS PRIOR TO THE DATE THE PAYMENT IS DUE AT YOUR PAYEE WITHOUT REGARD TO ANY GRACE PERIOD. Although we may be able to pay certain payees electronically within two business days, it could take longer for payments sent by mail. It is your responsibility to request that payments be made in such a manner that they will be paid on time. You are solely responsible for any damages, such as late fees and finance charges, which may be imposed as a result of your failure to identify the correct Payment Initiation Date and transmit your payment instruction to us in a timely manner. To ensure that critical or time-sensitive payments are received on time, you should consider establishing payment dates (especially for payees that will receive payment by mail during peak holiday periods) well in advance of the payment due date. We will not be responsible for any charges imposed or any other action taken by a payee resulting from a payment that you have not scheduled properly. In addition, we will not be liable if any third party through which any bill payment is made (e.g., the postal system) fails to properly transmit the payment to the intended payee.
 
1.35.7 Changing or Canceling Payments. You may cancel or change any scheduled payment by utilizing the Online Service up until the time it is processed on the Payment Initiation Date. If the payment has been entered or scheduled prior to the cut-off time specified in the Bank’s Processing Schedule on the Payment Initiation Date, you have until the cut-off time to change, modify or delete that payment. You may also contact us (see Section 1.1) in time for us to receive your request three business days or more before the payment is scheduled to be processed. If you call, we may also require you to put your request in writing and get it to us within seven (7) days after you call.
 
1.35.8 Rejecting Payment Requests. We may reject any payment request with or without cause or prior notice. If we do, we will notify you promptly of the rejection orally, electronically or in writing.
 
1.35.9 Joint Accounts. Since joint account holders share the same payee list, any account owner or authorized signer may (a) authorize transfers and payments to or from joint accounts, (b) cancel payments, and (c) remove any payee from the list.
 
1.36 Mobile Banking Service.
 
1.36.1 Description of the Mobile Banking Service.
 
The Mobile Banking Service refers generally to any service allowing an existing Bank customer to access and view Accounts from a web-enabled mobile phone or device (“Mobile Device”) whose network allows secure SSL traffic and supports WAP browsers. We do not guarantee the functionality of the Service on all wireless devices or networks; however, generally, the Service should be compatible with any web-enabled mobile phone or other Mobile Device, regardless of make, model, or mobile service provider. This proprietary solution adapts to any screen size and can change dynamically to present items on any screen in a pleasing format. The Mobile Banking Service allows you, but does not limit you to view transaction history, view Account balances, view account transaction history, transfer funds between Accounts, pay bills to payees, view alerts, initiate saved wires, and initiate saved ACH batches. Some features of the Service, including but not limited to Mobile Deposit, can only be accessed through the MainStreet Bank Mobile Banking Application (“App.”). If you have selected and are approved for the Mobile Deposit Service, you may remotely make deposits. In most cases you may use the Service 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 Service account access, restrict Service account transactions, or place limits on the specific dollar amount of funds that may be withdrawn and transferred from any account.
You acknowledge and agree that these services may be provided by a Vendor as selected by the 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 an agent of you or the Bank. Neither the Bank nor the Vendor is responsible for the actions or omissions of the other.
 
1.36.2 Service Included. If you have signed up for all necessary services, you may use the Mobile Banking Service in a limited capacity for the services set forth in Section 1.33.1 or otherwise made available to you through the Mobile Banking Service.
 
1.36.3 Eligibility/How To Register For Mobile Banking Service. To use the Service, you must have an open account at the Bank, register for the Online Service, and have a compatible Mobile Device. During the registration process, you will enter your mobile phone number as well as other information we require to authenticate your identity. You will be provided with further instructions on how to access the Service using an App or the browser on your Mobile Device. During this registration process, you will be required to provide your Online Service identification credentials (“Security Code”) that you must use each time you access the Service.
 
1.36.4 Bill Payment Service Limitations. If you have signed up for our Online Bill Payment Service, you can use this Service to initiate one-time immediate bill payments, which will be processed during the next bill pay processing time. 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. Notwithstanding the foregoing, the Bill Payment transactions are processed in the same manner through the Mobile Banking Service as they are with the Online Service.
 
1.36.5 Confirmation Numbers. Upon completion of a Transfer or Payment, a confirmation message will be displayed on your Mobile Device confirming that the transaction has been completed. You should record the Payee information (if applicable), the date of the Transfer or Payment, and the amount of the Transfer or Payment, in your checkbook/transaction register or other permanent record. This procedure will help in resolving any problems that may occur. No printed receipts are issued through the Service.
 
1.36.6 Export Control and International Use. The United States controls the export of products and information containing encryption (“Controlled Technology”). You agree to comply with such restrictions and not to export or re-export any Controlled Technology within the Service to countries or persons prohibited under the Export Administration Regulations (“EAR”). By downloading any products or information from this Service, you are agreeing that you are not in a country where such export is prohibited and that you are not a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any products or information subject to the EAR. We do not make any representation that any content or use of the Service is appropriate or available for use in locations outside of the United States. Accessing the Service from locations where its contents or use is illegal is prohibited by the Bank. Those choosing to access the Service from locations outside the United States do so at their own risk and are responsible for compliance with local laws.
 
1.36.7 Proprietary Rights. Other than your materials and account information, all content received on the Mobile Banking Service is the exclusive property of the Bank and/or its licensors and is protected by copyrights or other intellectual property rights.
 
1.36.8 Your Mobile Device and Your Software. We will not be responsible for any errors or failures from any malfunction of your Mobile Device or any malicious software or other problems related to the Mobile Device used with our Services.
 
1.36.9 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 any App on your Mobile Device or your mobile browser (Internet Explorer Mobile®, Safari®, Opera Mini™/Opera Mobile™ or otherwise), your mobile service provider, your personal financial management or other software (such as Quicken® or Microsoft Money®), or any equipment you may use to access or communicate with the Service.
 
1.37 Responsibilities.
 
1.37.1 Your Responsibility
 
1.37.1.1 Deadlines. You shall deliver or transmit all data or information to Bank by the cut-off time(s) specified in the Bank’s Processing Schedule or any other applicable agreement or instruction. The 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.
 
1.37.1.2 Use of Services. You will use the Online Service and Services accessed through the Online Service only for your own internal use in accordance with all of the terms and conditions set forth herein. Without limiting the generality of the foregoing, you agree not to make the Online Service available or allow use of the Online Service in a computer bureau service business, timesharing, or otherwise disclose or allow use of the Online Service by or for the benefit of any third party.
 
1.38 Applicable to Non-Business Customers.
 
1.38.1 If the Customer is a Non-Business Customer using account(s) for personal, family, or household purposes, the Customer is a “Consumer” under Regulation E – Electronic Funds Transfer Act (herein, “REG E”) and subject to the protections set forth in REG E.
 
1.38.2 REG E provides a basic framework that establishes the rights, liabilities, and responsibilities of participants in electronic fund transfer systems such as automated teller machine transfers, telephone bill-payment services, point-of-sale (POS) terminal transfers in stores, and preauthorized transfers from or to a consumer’s account (such as direct deposit and social security payments). The term “electronic fund transfer” (EFT) generally refers to a transaction initiated through an electronic terminal, telephone, computer, or magnetic tape that instructs or authorizes a financial institution either to credit or to debit a consumer’s account. These transfers include, but are not limited to, POS and ATM transfers, direct deposits or withdrawals, telephone transfers, and transfers initiated through a debit card transaction.
 
1.38.3 Unauthorized Electronic Funds Transfers are any Electronic Funds Transfers from the Customer’s account initiated by a person other than the Customer whom does not have the authority to initiate the transfer and from which the Customer receives no benefit. Unauthorized Electronic Funds Transfers do not include Electronic Funds Transfers initiated by a person whom was furnished with the access device to the Customer’s account by the Customer, unless the Customer has notified the Bank that Electronic Funds Transfers by that person are no longer authorized or if the Electronic Funds Transfer was initiated with fraudulent intent by the Customer or any person acting with or on behalf of the Customer.
 
1.38.4 If the Customer’s Security Code(s) or Security Procedure(s) has been compromised and the Customer notifies the Bank within two (2) business days, the Customer’s liability for Unauthorized Electronic Funds Transfers is limited to $50.00. If the Customer does not notify the Bank within two (2) business days, the Customer’s liability for Unauthorized Electronic Funds Transfers may be $500.00 or unlimited.
 
1.39 Applicable to Business and Non-Personal Customers.
 
1.39.1 Limitations on liability for Unauthorized Electronic Funds Transfers do not apply to Business and Non-Personal Customers.
PROCESSING SCHEDULE
 
Business/Banking Day: For the purpose of conducting banking business and transactions with or through the Bank. A Business/Banking Day is when the Bank is open for business to the public. Typically, Business/Banking Days are all Days between the hours of 9:00 am – 5:00 pm Eastern Time (Standard or Daylight) excluding Saturday, Sunday and Federal Holidays.
Delivery of Files/Requests: The Customer may electronically transmit files/requests to the Bank via the Bank’s Online Service.
Timing of delivery: All files/requests must be submitted and received by the Bank prior to the “Cut-Off Times” below. Any file/request received after the cut-off time may be processed the following business day.
 
ACH Origination
 
Format and content of entries: All files must be submitted in NACHA format. The Customer should refer to the NACHA Rulebook for specific formatting details.
 
Standard ACH Credit and Debit Current Day cut-off time is 4:00 pm Eastern Time (Standard or Daylight)
 
Positive Pay
 
Check Positive Pay Issue Files cut off time is 4:00 pm Eastern Time (Standard or Daylight)
Check Positive Pay Exception Item Processing is Between 6:00 am – 11:00 am Eastern Time (Standard or Daylight)
ACH Positive Pay Exception Item Processing is Between 6:00 am – 11:00 am Eastern Time (Standard or Daylight)
 
Wire Origination
 
Wire Origination cut-off time – 5:00 pm Eastern Time (Standard or Daylight)
Remote Deposit Capture and Mobile Deposit
Deposit cut-off time – 5:00 pm Eastern Time (Standard or Daylight)
 
Bill Pay
 
AM Processing cut-off time – 8:00 am Eastern Time (Standard or Daylight)
PM Processing cut-off time – 3:00 pm Eastern Time (Standard or Daylight)
 
Stop Payments
 
Stop Payment Requests – 5:00 pm Eastern Time (Standard or Daylight)
 
Internal Funds Transfers
 
Internal Funds Transfers – 11:00 pm Eastern Time (Standard or Daylight)
Revised 8/2017