ONLINE ACCESS AGREEMENT and CONSENT TO ELECTRONIC DISCLOSURE
Services & Fees Effective 6/4/2016
AGREEMENT - This Online Access Agreement, Services & Fees and Consent to Electronic Disclosure ("Agreement"), which includes the applicable fees, is a contract which establishes the rules which cover your electronic access to your accounts at EverTrust Bank ("Bank") through our Online Banking System ("System"). By using the System, you accept all the terms and conditions of this Agreement. Please read it carefully. The terms and conditions of this Agreement and disclosures for each of your Bank accounts, as well as your other agreements with Bank such as loans continue to apply subject to applicable federal laws and the laws of the state of California (except to the extent this Agreement can and does vary such rules or laws). If any provision of the Agreement is found to be unenforceable according to its terms, all remaining provisions will continue to full force and effect. The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions. Any waiver (express or implied) by either party of any default or breach of this Agreement must be in writing and shall not constitute a waiver of any other or subsequent default or breach. You may not assign this Agreement. This Agreement is binding upon your heirs and Bank's successors and assigns, however, in any event, certain obligations of the parties pursuant to this Agreement by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement. This Agreement, together with any applicable enrollment form ("Enrollment," or "Enrollment Application"), constitutes the entire agreement between you and Bank with respect to the subject matter hereof, and there are no understandings or agreements relative hereto which are not fully expressed herein. Unless otherwise stated, any reference to the Agreement shall include applicable schedules, Enrollment forms, and exhibits to the same, as well as applicable user guides, user manuals, set-up forms and other user materials, including online terms and information.
This Agreement includes disclosures applicable to consumer accounts as provided under the Electronic Fund Transfer Act (EFTA) and its implementing Regulation E. Read this document carefully and retain a copy for your records.
Subject to our approval and to any limits we impose, your Accounts may be accessible through our Internet banking website and for the Services. We are not, however, obligated to establish access to any or all of your Accounts, and not all Services may be available with all Accounts. Some Services may not be available without special application to and approval by us, or may be limited to specific types of Accounts. Eligible Accounts may include the following types: checking, money market, savings, and time deposits. In some cases, we may allow loans to be linked (for information access only). Certificates of deposit are time deposits where early withdrawals may result. No online transactional activity is allowed on certificates of deposit, which are view only. Accessibility to Accounts may vary based on the Service(s) you use.
We may act on requests for information, or requests to facilitate any Service requested on or associated with an Account, from any Account owner (including joint owners) or their authorized representatives. You agree not to resell or offer a Service to another, or to process any transactions for others using a Service. You certify that you are at least 18 years or older. You authorize us to obtain information about you from others (including credit reporting agencies) as part of our review of your Enrollment Application and from time to time thereafter. You agree to provide us with information as we request, from time to time.
DEFINITIONS - As used in this Agreement:
"Account" or "accounts" means your deposit accounts at Bank. Your "Account" refers to the account(s) designated as the account accessible to the Services.
Your "available balance," "available funds" and similar words mean the balance in your Account as determined under our funds availability policy.
"Business days" means Monday through Friday. Holidays are not included.
"Communication(s)" means instructions and actions from you (or attributable to you under this Agreement or otherwise) received by us through the Services.
A "commercial account" shall mean an account that is not established primarily for personal, family or household purposes, or is otherwise not a "consumer account" under the EFTA.
A "consumer account" shall mean an account that is established primarily for personal, family or household purposes and is subject to the EFTA as a "consumer account."
The word "includes" means "including but not limited to" the examples given.
The word "may," when used in reference to us, means at our option and sole discretion. Action (or inaction) that we "may" take is authorized by you and allowed to us, but is not required. You agree that we will not be liable for any action taken or any failure to act when action or inaction is at our discretion.
Your "Security Codes" are the credentials (such as codes and passwords) that are associated with you and used by us to verify the authenticity of Communications from you. Security Codes are used to access Accounts and to use the Services. The Security Codes include any supplemental or alternative method used to verify the authenticity of Communications that may be offered or presented to you by us from time to time.
"Services" means the services provided pursuant to this Agreement.
"We," "our," "us," and similar words, and "Bank," mean EverTrust Bank.
"You," "your" and similar words mean the accountholder authorized by us to use the System under this Agreement and anyone else authorized by that accountholder to exercise control over the accountholder's funds through the System.
References to time in this Agreement shall refer to Pacific Standard Time, with the exception of the Bill Payments Service, defined below, which will be based on Central Standard Time.
Available Services - With the Services you can, subject to System limitations:
- Obtain limited Account information;
- Transfer funds between linked Accounts (excluding certificates of deposit);
- Initiate check stop payment instructions;
- Download (or "export") Account information for transfer to specified financial software programs and/or spreadsheets. (Note: we are not responsible for the accuracy of data or for its integration with financial software.);
- Initiate bill payments ("Bill Payments"). Bill Payments are currently subject to a limit of $9,999.99 per Bill Payment, and an aggregate total of $20,000.00 of Bill Payments each business day;
- Set up account alerts ("Alerts"); and
- Access the Services using your wireless access device, including the ability to remotely deposit checks to your designated Account and receiving text message alerts ("Mobile Banking").
We may require you to enter a separate addendum to this Agreement in order to enable these Services. Services performed during nightly processing may not succeed when applied to your actual balance at the end of the nightly processing.
CUT-OFF HOURS - A Communication received by us after the cut-off time on a business day, or on a day that is not a business day, may be treated by us as if it were received on the next business day. At our option, however, we may treat it as received the same day as the day of receipt. There can be a delay between the time when you send a Communication to us and the time we receive it. Our current cut-off hours are as follows: (i) for transfers between linked Accounts it is 7:00pm PST; (ii) for Bill Payments it is 3:00pm CST; (iii) for Check Stop Payments it is 7:00pm PST; and (iv) for mobile deposits it is 5:00pm PST.
HOURS OF ACCESS - You can use the System seven days a week, twenty-four hours a day, although some or all the System services may not be available occasionally due to emergency or scheduled system maintenance.
COMPUTER EQUIPMENT AND SOFTWARE TO ACCESS THE SERVICES - You are responsible for providing and maintaining any equipment that is necessary for the Services, such as telephones, terminals, modems, and computers. You agree to use equipment that is compatible with our programs, systems and equipment, which we may change from time to time. We assume no responsibility for the defects or incompatibility of any computers or software that you use in connection with the Services, even if we have previously approved their use. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY, WITH RESPECT TO THE SERVICES, OR ANY COMPUTER PROGRAMS, EQUIPMENT OR SOFTWARE MADE AVAILABLE TO YOU. You agree to notify us promptly if any software or equipment we provide to you becomes defective. Our sole responsibility (if any) in such instances will be to repair or replace the defective software or equipment.
To use the Services, you must have a sufficiently powerful computer hardware and appropriate software. Some Services may require you to download software from our website; in some cases, we may place software on your computer as part of our security and/or verification tools. If the Service involves our having granted you software license ("software") usage rights, such grant shall be a personal, non-exclusive, non-transferable right to access and use the Service in connection with your personal use in accordance with this Agreement. The Services do not involve the sale of software. Nothing in this Agreement will entitle you to receive technical support, telephone assistance regarding the software, or updates to the software. Upon termination, you agree to immediately destroy all copies of any software which had been downloaded to your devices or otherwise in your possession and control as part of your access and use of the Service. Without limiting the generality of the foregoing, you agree not to: (a) make the Service available or allow use of the Service in a computer bureau service business, or on a timesharing basis; or (b) otherwise disclose or allow use of the Service by or for the benefit of any third party. You acknowledge that your license to use any software that may be required for the Service is directly from the software provider, pursuant to the license agreement that appears when any such software is electronically accessed by you or otherwise provided to you. By enrolling in portions of the Mobile Banking Service relating to those software systems and programs, and by downloading and installing Mobile Banking software, you will be evidencing your acceptance of the terms and conditions of those licenses. We may also condition your use of the Services upon you affirming such licenses by the use of "I Accept," or similar dialogue box acknowledgements, or by other affirmative or use-based acknowledgement and agreement systems.
YOUR SECURITY CODES; AND PROTECTING YOUR INFORMATION - During your Enrollment for the Services, you are required to select or will be assigned certain numbers, codes, marks, signs, public keys or other means of authenticating your identity and electronic communications in your name. These may include a customer number, logon name, and password. These credentials, with the other components of your Security Codes, will give access to your Accounts through the Service. You agree to maintain the confidentiality of the Security Codes at all times and not to provide access to them to anyone that you do not authorize to access your Accounts through the Services.
For security purposes, you determine what password you will use and the identity of your password is not communicated to us. You agree that we are authorized to act on instructions received under your password. You accept responsibility for the confidentiality and security of your password and agree to change your password regularly. Upon three unsuccessful attempts to use your password, your access to the System may be revoked. To re-establish your authorization to use the System you must contact us to have your password reset. We recommend that you create a password that utilizes both upper and lower case alpha, numeric plus any special characters for purposes of security. Your password should not be associated with any commonly known personal identification, such as social security numbers, address, date of birth, names of children and should be memorized rather than written down. It is also recommended you do not have your browser automatically remember your password. We may offer to you or require you to use additional authentication tools or methods from time to time. If you choose not to implement supplemental authentication tools, your access to some or all Services may be limited.
You agree to protect the confidentiality of your account and account number, and your personal identification information, such as your driver's license number and social security number. You understand that personal identification information by itself or together with information related to your account, may allow unauthorized access to your account. If you give someone your Security Codes, you are authorizing that person to use your service, and you are responsible for all transactions the person performs using your Services. All transactions that person performs, even those transactions you did not intend or want performed, are authorized transactions. Transactions that you or someone acting with you initiates with fraudulent intent are also authorized transactions. For your protection, sign off after every session and close your browser to ensure confidentiality. For your protection we also recommend that you change your online password regularly. We recommend that you memorize this online password and do not write it down. You are responsible for keeping your Security Codes, including your username, password, account numbers and other account data confidential. Neither EverTrust Bank nor any company affiliated with EverTrust Bank will contact you via e-mail or phone requesting your Services username or personal password.
Data transferred via System is encrypted in an effort to provide transmission security and the System utilizes identification technology to verify that the sender and receiver of the System transmissions can be appropriately identified by each other. Notwithstanding our efforts to insure that the System is secure, you acknowledge that the Internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the Internet and potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the System, or e-mail transmitted to and from us, will not be monitored or read by others. You expressly acknowledge that any wireless access to the Services initiated by you may not be secure and, in such cases, you assume the risk associated with unauthorized access to the Service and any information contained therein, resulting from such wireless connectivity.
CONTACT IN EVENT OF UNAUTHORIZED TRANSFER - If you believe any part of your Security Code, including your password, has been lost or stolen call:
EverTrust Bank Customer Service Hotline at: (866) 985-0616 or (626) 656-1109
or write: EverTrust Bank, Attn: Operations Administration, 18645 E. Gale Avenue, Suite #230, City of Industry, CA 91748
You should also call the number or write to the address listed above if you believe a transfer has been made using the information from your check without your permission.
SUFFICIENT FUNDS - You must have sufficient available funds in your Account to cover the amount of any transaction that would be charged to your Account. Subject to limitations set out in this Agreement, you can request payments up to the amount of available funds or available credit in your Account (if any). We may hold (or "freeze") funds at any time after you have initiated a Service for any reason, including as a means of reducing risks that there will be insufficient funds for completing the Service. If we do hold funds, we may treat the held funds as not available for other purposes, and reject other transactions (for example, checks or other transfer instructions). We may allow overdrafts/overlimits or negative balances, but we also may discontinue the practice at any time with or without prior notice to you. If you do not have sufficient or available funds or credit, you may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), as set forth herein and in your deposit agreement. Nothing in this Agreement, or any course of dealing between us, shall be construed as our commitment or obligation to lend you money.
WAIVER OF ACCESS RESTRICTIONS - Your Accounts may be subject to access restrictions when you conduct transactions in person or when you are using systems other than with a Service. If access restrictions exist, they do not apply to your use of the Services. We may limit or deny Services to you if there are access restrictions. Conversely, we may process your transactions based on Communications without regard to or any need to comply with access restrictions otherwise applicable to your Accounts.
EMAIL - Electronic mail ("email") sent to us is not a secure method of communication, and we recommend you do not send information by email. We may disregard email we receive from you, or we may act on it, at our option. If immediate attention is required, you must contact us by telephone or in person.
Email or messages sent by us to you will be deemed received by you when sent by us to you at your email address as shown on our records. You agree to notify us (using the Service or otherwise in a form acceptable to us) whenever your email address changes. You agree that information or messages made available to you via the Services will be deemed received by you when first posted on our website or made available to you. You agree to access the Service from time to time, in no event less than monthly, to access this information or the messages.
FEES AND CHARGES – Our current online banking Service fees and charges are shown below.
- Check Stop Payment Fee - $20.00
- Excess Account Transfer Fee - $10.00
- Mobile Banking Returned Deposited Check Fee - $5.00
The fee for the Bill Payment Service is the following:
- Consumer Account: no monthly fee with first 10 Bill Pay transactions included per month; additional transaction is $0.70 per transaction.
- Commercial Account: $9.95 per month with first 20 Bill Pay transactions included; additional transaction is $0.70 per transaction.
- Return Check (due to if due to your error) - $40.00
- Check Copy Mailed or Faxed to You or Us - $20.00
- Stop Payment - $40.00
- Return ACH items - $40.00
- Overnight Carrier Delivery Charge per item - $20.00
We reserve the right to charge you for research time involving payments no longer available in your payment history screen. You will be informed of any such charges before they are incurred. We may impose new fees and charges, or increase or change existing fees and charges. We will provide advance notice of these changes to you as required by law. Other fees may be assessed and billed separately by your internet and/or telephone service provider. You agree to pay all fees and charges we impose. You authorize us to charge the designated Account and/or any other account you hold with us to cover your fees and charges. You also authorize us to charge you according to our then-current fee schedule.
If you do not use this Service for any three-month period, we reserve the right to discontinue your Service without notice to you. To the extent permitted by law, you give us the right to set off any of your money or property which may be in our possession against any amount owed to us under this Agreement. This right of set off does not extend to any Keogh, IRA account, or similar tax-deferred deposit.
POSTING OF TRANSFERS – Some transfers initiated through the System may be real time, but others may not. The System identifies transfers based upon the login ID of the user who made the electronic transfer. You agree to communicate with any other person with authorized access to your accounts concerning any transfers from your accounts in order to avoid overdrafts.
LIMITS ON AMOUNTS AND FREQUENCY OF SYSTEM TRANSACTIONS - The number of transfers from Bank accounts and the amounts which may be transferred are limited pursuant to the terms of the applicable deposit agreement and disclosure for those accounts. For certain types of transactions/transfers from a money market or savings account, you are permitted to make no more than six transfers and withdrawals, or combination of them, per calendar month or statement cycle, to another account or to a third party by means of a preauthorized or automatic transfer, or telephonic (including data transmission) agreement, order or instruction, including by check, draft, debit card or similar order by you and payable to third parties. If you exceed these limits, we may impose a fee, close or convert your Account, limit your use of the Services, or any combination of the foregoing.
CONSENT TO ELECTRONIC DISCLOSURE
This Consent covers electronic records, as specified below, for your deposit and loan accounts ("Account(s)") at EverTrust Bank (the "Bank"). The words "we," "us," "our" and other similar terms refer to the Bank, and the words "you," "your" and other similar terms mean you, the individual(s) or entity identified on the Account(s).
If you choose not to agree, you have the option to sign up for online banking by executing the Online Access Agreement in one of our branches. Your decision not to consent will not limit our ability to otherwise communicate with you electronically, to the extent not prohibited by applicable law.
Electronic Records - You understand and agree to be bound by the terms and conditions of this Consent, and authorize the Bank to provide to you in electronic format, by electronic e-mail or website posting or through logged in website interaction, the following communications (collectively referred to herein as "Communications") regarding your Accounts:
- This Consent;
- Online Access Agreement (the "Agreement"). The Agreement contains the terms and conditions governing the online banking services offered by the Bank to you, including electronic fund transfers to or from your designated accounts. It also contains information that the Bank is required to disclose under the Electronic Funds Transfer Act and it's implementing Regulation E.
- Any change in terms or notices applicable to the Agreement. This includes notices that applicable laws and regulations require the Bank to provide to you, from time to time.
- Periodic statements for your Account(s), including all disclosures and notices provided with the same, including but not limited to those provided pursuant to the Electronic Fund Transfer Act, the Truth in Savings Act, the Truth in Lending Act, the Equal Credit Opportunity Act, and the Fair Credit Reporting Act.
- Certificate of deposit renewal notices required under the Truth in Savings Act (as applicable).
- Annual privacy notices provided pursuant to the Gramm-Leach-Bliley Act and applicable state law.
- Any notice regarding changes to this Consent, such as hardware or software changes that may impact your ability to access Communications, including any notice revoking or limiting access to our website to access a Communication or certain information previously provided to you.
Paper Copies - You may obtain paper copies of any of the Communications the Bank provides to you electronically by sending your written request to EverTrust Bank, Attn: Operations Administration, 18645 E. Gale Ave., Suite #230, City of Industry, CA 91748. If you request a paper-based copy, the Bank will provide the first copy to you free of Bank fees or charges. The Bank will mail paper-based copies of a Communication to you (at the address shown on the Bank's records) within 5 business days after the date the Bank receives your request. Although we do not currently impose a fee or other charge for paper copies of Communications, we reserve the right to impose a fee or charge in the future and to change such fee at any time.
Withdrawal of Consent - If you wish to withdraw your consent, you may do so at any time. Once we have had a reasonable opportunity to respond to your consent withdrawal, we will terminate the delivery of future Communications to you in electronic form. To withdraw your consent, all you need to do is contact the Bank by phone (866) 985-0616 or (626) 656-1109, write to us at EverTrust Bank, Attn: Operations Administration, 18645 E. Gale Ave., Suite #230, City of Industry, CA 91748. Your withdrawal will not affect the previously delivered electronic Communications. We do not currently impose any fee or other charge if you choose not to consent or if you withdraw your consent. However, we reserve the right to impose a fee in the future and to change such fee at any time.
If the Bank changes the minimum hardware or software requirements needed to access or retain the Communications, and the change creates a material risk that you will not be able to access or retain a subsequent record, then before the change takes effect the Bank will let you know about the change and the new requirements. The Bank will notify you by e-mail, and at that time you will be allowed to choose whether you still want to give the Bank your consent to receiving Communications by electronic means. If not, you will be allowed to withdraw your consent at that time.
How the Service Works - Some Communications will be provided to you after you give your consent. For continuing or future Communications, you may periodically receive an e-mail notification that an electronic record or notice is available for review and you will be directed to information posted at the Bank's website. To view the Communications you may also be required to access the Bank's website, open the secure connection for online access, and click on the necessary tabs (for example, when accessing electronic records that contain personally identifiable financial information). We reserve the right, from time to time, to deliver one or more Communications in paper form instead of electronic form by mailing a Communications to the last known mailing address on our records for you. In the event that we do so, we are in no way terminating this Consent and we may continue to provide Communications to you in electronic form.
Email Address - In order to ensure that the Bank is able to provide you with Communications, important notices and other information from time to time, you must provide the Bank with your current e-mail address and update the Bank with any changes. You can update your e-mail address by logging on to your online account at www.evertrustbank.com. If you fail to update or change an incorrect e-mail address or other contact information, you understand and agree that any Communications shall nevertheless be deemed to have been provided to you if they were made available to you in electronic form on our website or e-mailed to the e-mail address we have for you in our records.
We reserve the right, in our sole discretion, to discontinue providing records in electronic form. We also reserve the right to change the terms and conditions of this disclosure and consent. If required by law, we will provide you with notice of any such termination or change, and request a new consent.
If you download or print any confidential materials, such as your transaction history, be sure that you store them in a secure environment, just as you would paper-based bank records.
BILL PAYMENT SERVICE - When using the Bill Payment Service, you must designate the Account ("Funding Account") from which the Bill Payments are to be made, the complete name of the payee, your Account number and the payee's remittance address (as exactly as shown on the billing statement or invoice), the amount of the payment and the date you want the payment to be processed from your Funding Account ("Payment Processing Date").
Use of Vendors; Use of Information. We may use one or more bill payment vendor(s) to provide the Bill Payment Service, and you understand that various financial intermediaries and their servicers may be involved in processing any one of your Bill Payment instructions. These intermediaries may benefit from interest that accrues on Bill Payments between the time your Funding Account is debited and the time the payee is paid. Any information you provide may be used by us or any of these other parties to complete or otherwise deal with your transaction or comply with any laws, rules or regulations. If there is a dispute between you and us, or either of Bank and any other person (including any merchant, payee, financial institution or other intended or actual recipient of any Bill Payment), you authorize us to obtain information regarding you, your Account and your Bill Payment obligations (or the absence of them) from any party that was involved in the Bill Payment transaction or that might otherwise assist in the resolution of the dispute or problem. This may include financial and other information.
Setting-Up Payees. When you sign onto the Bill Payment Service, you must establish your list of payees. A payee is anyone, including Bank, that you designate to receive a Bill Payment; provided that we accept the payee for the Bill Payment Service. If we accept the payee, then the payee will be placed on your authorized list of payees. Each time you want to initiate a Bill Payment, the payee must be on your authorized list of payees, and the payee's receiving financial account must be within the United States, or its territories or commonwealths. You agree not to use the Bill Payment Service to payee payees to whom you are obligated for payments of fines, payments to loan sharks, gambling debts or payments otherwise prohibited by law.
We are not responsible if a Bill Payment is not made to a payee because you provided us with incomplete, incorrect or outdated information regarding the payee or we attempted to make a payment to a payee that is not on your authorized list of payees. Also, we reserve the right to refuse to approve a payee for your authorized list of payees and to otherwise prohibit payment to a payee via the Bill Payment Service.
One-Time Payment You can use the Bill Payment Service to make a one-time Bill Payment. A one-time Bill Payment will be processed on the Payment Processing Date; provided that the Payment Processing Date selected by you is a business day and you submit your one-time Bill Payment instruction prior to the Bill Payment cut-off hour for that date. If you select a Payment Processing Date that is not a business day or submit your Bill Payment instruction after the Bill Payment cut-off hour for that date, then the Payment Processing Date will be the next business day, unless otherwise provided in the System online instructions.
Recurring Payments. You can use the Bill Payment Service to make recurring Bill Payments. The Bill Payment Service will allow you to schedule Bill Payment instructions that will cause a Bill Payment to be processed from the selected Funding Account on your selected frequency on an ongoing basis. However, if the future Payment Processing Date is on a non-business day, then the new future Payment Processing Date may be the next business day, unless otherwise provided in the System online instructions.
Available Funds. For Bill Payments, you will need to have sufficient collected and available funds in your designated Funding Account to cover the amount of the Bill Payment on the Payment Processing Date. You can initiate Bill Payments up to the available collected funds in your Funding Account, plus any linked credit or other overdraft facility (as applicable). If you exceed these limits, then we may prevent (or reverse) Bill Payments in any order and in any amount that we choose, even if the result is to reduce your transactions to a level below the amounts needed to pay your bills.
Non-Recommended Payees. We do not recommend that you use the Bill Payment Service to pay your federal, state or local taxes, courts or other governmental entities. These agencies normally require an accompanying coupon, which cannot be provided via the Bill Payment Service. We will not be liable for penalties, interest or other damages of any kind if you try to use the Bill Payment Service to remit or pay money for taxes, or to courts or governmental agencies.
Scheduling Payments in Advance of the Due Date. The Payment Processing Date is the date that we will initiate the Bill Payment. Bill Payments should be scheduled sufficiently in advance of the due date of your bill ("Due Date") to allow the payee to receive it on the Due Date set by your payee and without taking into account any grace period that may be offered by your payee. Electronic bills will be paid within 48 hours of the close of business of the Payment Processing Date. Some companies you pay through the Bill Payment Service are not set up for electronic payment and therefore will receive a paper draft on your behalf. These paper draft payments can take up to five (5) business days to process before the payee receives the payment. You are responsible for ensuring that you initiate a Bill Payment instruction in time for the payment to reach the payee before its Due Date (without taking into account any grace period). You must allow at least five (5) business days, prior to the Due Date, for each Bill Payment instruction to reach the applicable payee. We are not responsible for any damages you may suffer if you do not allow at least five (5) business days between the Payment Processing Date and the Due Date of your bill or obligation, without counting any grace period offered by the payee.
Payment Methods. We reserve the right to select the method in which to remit funds on your behalf. These payment methods may include, but may not be limited to, an electronic payment, an electronic check payment (where the check is drawn off our third party service provider's account), or a demand draft payment (where a negotiable instrument is created and drawn off of your Funding Account).
Payment Changes and Cancellation. You may change or cancel a Bill Payment instruction via the Service as long as you submit the change or cancellation request 3:00pm CST prior to the Payment Processing Date for the Bill Payment instruction, and you follow the Bill Payment instructions provided by the Bill Payment Service for changes and cancellations. To request a stop payment after the deadline noted above, call (866) 895-0616 or (626) 626-2909. The Service's ability to place a stop payment after the deadline will depend on how the funds were remitted to the payee and the elapsed time since the Bill Payment was processed. Although we may attempt to place your stop payment request, we will have not be obligated to do so and you agree to hold us harmless from any liability from attempting to do so. We may require you to present your stop payment request in writing within fourteen (14) days of your request.
Accurate Information on Payees. The Bill Payment will be processed using the information you supply, and if the information you give to us is inaccurate or incomplete in any way the Bill Payment may be delayed or misdirected. If the Service provides you with a series of options regarding payee address or location, you are responsible for correcting that information if such information does not agree with your records or with your particular bill. We and the others that handle your Bill Payment (including the payee's bank) are entitled to rely on information you supply, such as the payee's account number or the routing number of the payee's bank, even if the name you give to us and the number you give to us identify different persons.
ACH Entries. Electronic payments that are made through the ACH are subject to the rules of the ACH, and you agree to be bound by the Operating Rules of the ACH, including the rule making payment to the payee provisional until receipt by the payee's bank of final settlement of the credit transaction. If final settlement is not received, you will not be deemed to have paid the payee the amount of the electronic bill payment. Furthermore, you agree that any payment by us to you for any returned credit entry or credit reversal is provisional until receipt by us of final settlement for such entry. If final settlement is not received, we are entitled to a refund from you of the amount credited and we may charge your account for the amount credited. We may refuse to permit the use of any amount credited for a credit reversal if we believe that there may not be sufficient funds in your account to cover charge back or return of such reversal.
MOBILE BANKING - Access and Use of Mobile Banking Services. To utilize the Mobile Banking Services, you must enroll through our System. Once you have enrolled for the Mobile Banking Services, designated accounts linked to your Online Banking security codes will be accessible through your wireless access device ("Wireless Access Device"). Additionally, to access and utilize the Mobile Banking Services you will need a compatible Wireless Access Device. To access Mobile Banking services and functions, your Mobile Access Device must be Internet enabled and connected to the Internet through your mobile communications service provider. In order to properly use the Mobile Banking Services, you should review and follow the instructions provided in our System. You agree to accept responsibility for learning how to use the Mobile Banking Services in accordance with the online and mobile application instructions and agree that you will contact us directly if you have any problems with Mobile Banking Services. You also accept responsibility for making sure that you know how to properly use your Wireless Access Device. If you obtain a different Mobile Access Device, you will be required to download and install software, to that different Mobile Access Device, under the same terms set forth in this Agreement, as amended. You agree to delete all such software from your Mobile Access Device promptly if the licenses or this Agreement terminate for any reason. We reserve the right to change, add to, or terminate services with our third-party software providers, to substitute different software providers, and to enter into or arrange for the provision Mobile Banking Services by other licensors and third-parties. Some Online Banking Services may not be accessible while using your Wireless Access Device.
Hardware. You are responsible for obtaining and maintaining the compatible Wireless Access Device required to use the Mobile Banking Service. To the extent we, in our sole discretion, provide any hardware in conjunction with the Mobile Banking Service, the hardware will at all times remain the sole property of EverTrust Bank. Upon termination of the Mobile Banking Service, you must promptly return any hardware that we provided to you.
Mobile Deposit Eligibility. To be eligible for the Mobile Deposit Services, you must have established a consumer checking or savings account for a minimum of 90 days and have no more than three (3) occurrences of insufficient funds during a 12 month period and no overdrafts.
Mobile Deposit Feature. The Mobile Deposit Service enables you to use a software application together with your Wireless Access Device to create electronic images of the front and back of certain Original Paper Items (defined below) and transmit those images and other information, including, without limitation, information captured from the magnetic ink character recognition ("MICR") line, to us for review and processing in accordance with this Agreement.
A. Defined Terms. For the purpose of the Mobile Deposit Service, the following words shall have the following meanings:
"Documentation" means all documentation, the user manual, any other manuals, all instructions (including on-line instructions) relating to the Services which we may provide to you from time to time in connection with the Services.
"Endpoint" means any Federal Reserve Bank, financial institution, local clearing house, courier or other entity or location for the delivery of cash letters or other presentment of Image Exchange Items or Substitute Checks.
"Electronic Item" means the digitized image of a Paper Item that is created by you and transmitted to us using the Service.
"Image Exchange Item" means a digitized image of an Item cleared and settled directly with a Paying Bank without conversion to a Substitute Check.
"Item" means a Paper Item that is payable on demand, drawn on or payable through or at an office of a United States Financial Institution, whether negotiable or not, and payable to you, and includes Original Paper Items, Substitute Checks, and Image Exchange Items. Such term does not include Non-cash Items or Items payable in a medium other than United States money.
"Non-cash Item" means an Item that would otherwise be an Item, except that: (i) a passbook, certificate or other document is attached; (ii) it is accompanied by special instructions, such as a request for special advice of payment or dishonor; (iii) it consists of more than a single thickness of paper, except an Item that qualifies for handling by automated check processing equipment; or (iv) it has not been preprinted or post-encoded in magnetic ink with the routing number of the Paying Bank.
"Original" with respect to a Paper Item means the first paper Item issued with respect to a particular payment transaction.
"Paper Item" means an Original Paper Item, as defined in Regulation CC, except that Paper Item does not include a Substitute Check or a remotely created check.
"Paying Bank" means the United States Financial Institution ordered in an Item to make payment to the payee(s) named on the Item.
"Regulation CC" means 12 C.F.R. Part 229, as it may be amended from time to time.
"Substitute Check" means a paper reproduction of an Item that satisfies the requirements and definition of "substitute check" set forth in Regulation CC.
"UCC" means the California Uniform Commercial Code as amended.
"United States Financial Institution" means (i) any person, located in the United States, engaged in the business of banking; (ii) a Federal Reserve Bank; (iii) a Federal Home Loan Bank; and (iv) to the extent it acts as a payor, the U.S. Treasury, the U.S. Postal Service, or a State or local government.
B. Processing Your Electronic Item(s). For all Electronic Items processed by you pursuant to this Agreement, either: (i) digitized images will be converted to Substitute Checks and presented for payment to established Endpoints, or (ii) Image Exchange Items will be presented for payment through image exchange networks. We may in our sole discretion determine the manner of processing. All such processing and presentment shall be done in accordance with timeframes and deadlines set forth in the Documentation and as otherwise established by us from time to time.
Unless otherwise agreed by you and us, we will process any returned Items in accordance with applicable law and the deposit account agreements.
C. Exception Items. Each business day on which we review and process your Electronic Item(s), we will use commercially reasonable efforts to review each Electronic Item and to reject any Electronic Item that we in our sole discretion determine to be ineligible for the Service (each, an "Exception Item"). By way of example, "Exception Item" includes, without limitation, an Electronic Item that (a) is illegible or contains MICR data that is not machine-readable, (b) was previously processed as an Electronic Item, (c) is drawn on banks located outside the United States and is not payable at or through a bank located within the United States; or (d) that we in our sole discretion otherwise determine that the Electronic Item is not eligible. While we will normally notify you of each Exception Item through the Service, or other communication channels, at our discretion, we may not notify you of an Exception Item. We will not be liable for any rejected deposit or failure to notify you of such rejection. If you wish to attempt to deposit any Exception Item to your account, you shall do so only by depositing the Original Paper Item on which the Exception Item is based at one of our branches, or as otherwise agreed between us. Even if we do not initially identify an Electronic Item as an Exception Item when we review and process the Electronic Item to which the Exception Item relates, the Electronic Item, Substitute Check, or Image Exchange Item may nevertheless be returned to us because, among other reasons, the Paying Bank determines that such item or check is illegible or missing an image. Our failure to identify an Exception Item shall not limit our rights, or preclude or limit your obligation to us as outlined in this Agreement. Our processing of any Exception Items shall not constitute a waiver by us or obligate us to process such Exception Items in the future. We may discontinue processing of Exception Items at any time, without cause or prior notice.
D. Deposits to the Account. Electronic Items processed for deposit through the Service will be deemed to have been received by us for deposit at the time the Electronic Items are actually received and accepted. A deposit of Electronic Items will be deemed to have been received and accepted by us for deposit when all of the following have occurred: (i) we have preliminarily verified that the image quality of the Electronic Items is acceptable to us in our discretion; (ii) all Item information is complete and the deposit totals are balanced to the Item information provided for the deposit; and (iii) we have successfully performed all further validation routines with respect to the deposit. Notwithstanding the foregoing, Electronic Items received by us for deposit may be rejected by us in our sole discretion.
Each Electronic Item deposited pursuant to this Agreement will be deemed to have been deposited at the office where the account is maintained.
E. Dollar Limitations. In addition to any restrictions already provided in this Agreement, we may from time to time establish exposure limitations and assign them to you. At this time, the maximum amount you may deposit using the Service each business day is $1,000.00 for each deposited check up to daily limit of $2,000.00, with a rolling 25-day limit of $5,000.00.
F. Creating and Transmitting Electronic Items to Bank. The following items may not be deposited through the Service: international checks, remotely created checks (whether in paper form or electronically created), checks drawn against a line of credit, or cash. Except as noted in the preceding sentence, only checks, money orders, cashier's checks, or traveler's checks, drawn on or payable at or through a U.S. Financial Institution, can be transmitted through the Service. Additionally, only Items that are made payable to, and endorsed by, you and which you are authorized to enforce and obtain payment may be transmitted through the Service. Endorsements must be made on the back of the Item in ink within 1 ½ inches from the top edge, although we may in our discretion accept endorsements outside this space. Any loss we incur from a delay or processing error resulting from an irregular endorsement or other markings by you will be your responsibility. For an Item payable to you and any joint owner(s) of your account, the Item must be endorsed by all such payees, and you may only use the Service to deposit such an Item into an account jointly owned by all such payees. If the Item is payable to you or your joint owner, either of you can endorse it. If the Item is made payable to you and any non-joint owner, commonly referred to as a third-party check, you may not deposit the Item into your account using the Service. If you deposit or attempt to deposit a third-party Item to your account, your access to the Service may be revoked. You agree to indicate that the Item has been deposited via the Service, for example, by writing the word "VOID," the phrase, "mobile deposit XX/XX/XX (date)," or similar on the front of the Item.
G. Availability of Funds. Subject to our right to hold funds as otherwise provided under this Agreement and the deposit account agreements, availability of credit from Items processed under this Agreement will be subject to our funds availability schedule, which may be amended.
Without limitation, you recognize that under the UCC, Regulation CC and the rules of any image exchange network our representations and warranties with regards to Image Exchange Items and Substitute Checks may expose us to claims for several years following processing of the Image Exchange Item or Substitute Check.
H. Returned Items. You are solely responsible for verifying that Items that you deposit using the Service have been received and accepted for deposit by the Bank. The Bank will provide you with notice of any deposits that it is unable to process because Items were returned unpaid by the Paying Bank. In the event that the Bank credits your account for an Item that is subsequently dishonored and returned, you authorize the Bank to debit the amount of such Item plus any associated fees from the account. To the extent the funds in your account are insufficient to cover such amount, we shall debit the deficiency amount from any of your other account(s) with the Bank in our sole discretion. Our right to charge your account(s) will apply without regard to whether the Item was timely returned or whether there is any other claim or defense that the Item was improperly returned. You understand and agree, that since the Original Paper Item is your property, it will not be returned and the Bank may charge back an image of the Item, an ACH debit, or other electronic or paper debit, as applicable, to your account. You further agree that any image that we charge back may be in the form of an electronic or paper reproduction of the Original Paper Item or a Substitute Check. You may not use the Service to deposit a Substitute Check and you may not deposit the Original Paper Item through the Service or in any other manner if you receive a dishonored Item. You agree to comply with any additional instructions we may provide to you in connection with returned Items.
I. Your Obligations. In connection with the Mobile Banking Service, you acknowledge and agree to each of the following:
(i) You will only submit Paper Items for processing to us that meet the definition of "Paper Item" as provided in this Agreement and will ensure that the Paper Items scanned meet the ANSI X9.37 standards for image quality required by Regulation CC, or other standards established or required by us or applicable law. These requirements include, but are not limited to, ensuring the following information can clearly be read and understood by sight review of the image: (a) the amount of the Item (both written and numeric); (b) the payee; (c) the signature of the drawer (maker); (d) the date; (e) the Item number; (f) the information identifying the drawer and the paying financial institution that is preprinted on the Item including the MICR line; (g) and all other information placed on the Item prior to the time that an image of the Item is captured (such as any required identification written on the front of the Item and any endorsements applied to the back of the Item).
(ii) You will not process any third-party checks;
(iii) You will not attempt to scan and transmit to us any Paper Item which is drawn on a deposit account of yours with us or any other financial institution, or a deposit account of any business entity of which you are a principal, officer or authorized signer, unless there are sufficient funds to cover the full amount of the Paper Item in the account on which it is drawn;
(iv) You will not attempt to scan and transmit to us any previously truncated and reconverted Substitute Check. Any previously truncated and reconverted Substituted Check must be physically deposited with us. Notwithstanding the foregoing, we may redeposit any returned Substitute Check or Image Exchange Item consistent with our deposit account terms and conditions;
(v) You will: (a) ensure that Paper Items are restrictively endorsed or otherwise processed to permit only financial institutions to acquire rights of a holder in due course in the collection process of Items, (b) handle, process, maintain, and destroy Original Paper Items as set forth in this Agreement, and (c) ensure that no financial institution (depositary, collecting or payor), drawee, drawer or endorser receives presentment or return of, or otherwise is charged for an Item more than once in any form. You agree not to allow an Item to be deposited or presented for payment more than once, to the extent that it could result in the payment of the Item more than once. You will not allow the transmission of an image of an Item that has already been presented to us or to any bank by any other means. You will not allow transmission of an image of an Item that has already been transmitted through the Service. If an image of an Item has been transmitted to us or to any other bank, you will not allow the Item to be subsequently presented by any other means. If any Item is presented or deposited more than once, whether by image or by any other means, we may, at our discretion, reject it or return it and charge it against your account without prior notice to you. In addition, you may be suspended from the Service. For any image which you have transmitted, you shall be responsible for preventing the transmission of another image of the Item or presentment of the Item by any other means. If we return an Item to you unpaid for any reason (for example, because payment was stopped or there were insufficient funds to pay it) you agree not to redeposit that Item via the Service;
(vi) The Electronic Item is a digitized image of the front and back of the Paper Item and accurately represents all of the information on the front and back of the Paper Item as of the time you converted the Paper Item to an Electronic Item;
(vii) You shall be responsible for verifying our receipt of your transmission(s) by verifying that deposits have been posted to your account, in addition to cooperating in any investigation and resolving any unsuccessful or lost transmission with us;
(viii) You shall be responsible for installing and implementing any changes and upgrades to the Services as required by us within 5 days, or sooner if required by us, to ensure compliance with regulatory changes or developments, or to protect the integrity and security of the Services. You acknowledge that changes and upgrades may also be automatically launched by the Service;
(ix) You understand and agree that a Paper Item that is not paid by a Paying Bank, or is otherwise returned for any reason, will be returned to you and your account charged for the amount of the Item plus any associated fee as disclosed in our schedule of fees. Our right to charge your account will apply without regard to whether the Item is timely returned to us or whether there is any other claim or defense that the Item has been improperly returned to us;
(x) You will not engage in any activity directly or indirectly related to the use of the Service that is illegal or fraudulent;
(xi) You shall comply with all applicable laws, rules, and regulations applicable to the Services, including, without limitation, Regulation CC, Regulation J, the Uniform Commercial Code and any rules established by an image exchange network through which Electronic Items are processed pursuant to this Agreement;
(xii) You provide to us all encoding, transfer, presentment and other warranties made under applicable law as we are deemed to make under applicable law, including without limitation those applicable under the UCC, Regulation CC, Regulation J, and the rules of any image exchange network;
(xiii) You will properly secure the Wireless Access Device you use in connection with the Service (including, but not limited to, securing the security credentials to prevent unauthorized use). You will maintain control over and be responsible for secure retention, storage, and destruction of original Paper Items for which you have created an Electronic Item. After transmitting the Electronic Item to us, you will securely retain the original Paper Items for 14 calendar days from the transmission date ("Retention Period"). It is your responsibility to establish and maintain procedures to safeguard against unauthorized deposits. You will notify us immediately by telephone at (866) 895-0616 or (626) 626-2909 if you learn of any loss or theft of original Items;
(xiv) During the Retention Period and upon our request, you agree to provide us with the original Paper Item(s). Once the Retention Period has expired, you will mark the original Paper Item "VOID" and then securely and irretrievably destroy original Paper Items from which you have previously created and submitted to us as an Electronic Item;
(xv) You will ensure the safety and integrity of Original Paper Items from the time of receipt until the time of destruction. If warranted in our reasonable judgment, we may audit and monitor you, and you agree to cooperate with us to permit such monitoring, to confirm that you have satisfied your obligations under this Agreement;
(xvi) You will not store or make a back-up copy of the Electronic Item(s); and
(xvii) You agree to cooperate with us in the investigation of transactions, including unusual transactions, poor quality transmissions, and resolution of customer claims, including by providing, upon request and without further cost, any originals or copies of Items in your possession and your records relating to Items and transmissions.
Mobile Banking Service Limitations. The availability, timeliness, and proper functioning of the Mobile Banking Services depends on many factors, including your Wireless Access Device location, wireless network availability and signal strength, and the proper functioning and configuration of hardware, software, and your Wireless Access Device. Neither we nor any of our service providers warrants that the Mobile Banking Service will operate without interruption, and neither we nor our service providers shall be liable for any loss or damage caused by any unavailability of the Mobile Banking Services, including service interruptions, delays, or loss of personalized settings. Neither we nor any of our service providers assumes responsibility for the operation, security, functionality or availability of any Wireless Access Device or mobile network which you utilize to access the Mobile Banking Services. You agree to exercise caution when utilizing the Mobile Banking Services on your Wireless Access Device and use good judgment and discretion when obtaining or transmitting information.
Security of Data Transmission and Storage. You expressly acknowledge that any wireless access to your accounts may not be secure and, as such, you assume the risk associated with unauthorized access to the Mobile Banking Services and any information contained therein, resulting from such wireless connectivity. You assume all risk that any information you download or otherwise stored on your Wireless Access Device may be accessed by unauthorized third parties. Without limiting the foregoing, you acknowledge that your Wireless Access Device may become subject to unauthorized tracking, "hacking" or other manipulation by spyware, viruses or other malicious code ("malware"). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk.
We are not responsible for the security and confidentiality of information when you: (i) use wireless connections to download your account information, in which case you acknowledge such connection may permit other persons to access the information being downloaded, or (ii) allow other persons access to your Wireless Access Device. You agree that any account information that you download is done at your own risk, and you are solely responsible for any damage that might occur to the electronic device to which you download any information, or any loss or corruption of data that might occur as a result of the downloading or its storage on an electronic device.
YOU AGREE TO TERMINATE THE MOBILE BANKING SERVICE, OR DISABLE YOUR REGISTERED WIRELESS ACCESS DEVICE FROM THE MOBILE BANKING SERVICE IMMEDIATELY IN THE EVENT YOUR REGISTERED DEVICE BECOMES LOST, STOLEN OR IS NO LONGER IN USE BY YOU.
XPRESS PEOPLE PAY SERVICES –
Features – The Xpress People Pay services include the following features, each of which is addressed in more detail below (collectively “Xpress People Pay Services”):
• A2A Transfers: The “A2A Transfer” feature allows you to transfer funds: (i) between your deposit accounts that you maintain with us; and (ii) between your deposit account(s) that you maintain with us on the one hand, and your account(s) that are maintained by other financial institutions, on the other hand. You represent and warrant that you are either the sole owner or a joint owner of the Designated Account and the recipient account and that you have all necessary legal right, power and authority to transfer funds from the Designated Account to the recipient account.
Dollar Limits: A2A Transfers are subject to a dollar limit of $2,000 per transaction and $4,000 aggregate total each day.
• P2P Transfers: The “P2P Transfer” feature allows you to set up recipients as payees to receive P2P Transfers. Recipients designated by you may be required to log onto a secure site to provide their recipient payment details. When you initiate a P2P Transfers, fund will generally be pulled from your account on the Send On Date, however, the designated recipient will have 10 days following the Send On Date to retrieve the funds. If the recipient fails to retrieve the funds, they will be returned to your account.
Dollar Limits: P2P Transfers are subject to a dollar limit of $2,000 per transaction and $4,000 aggregate total each day.
• PayPal Transfers: The “PayPal Transfer” features allows you to transfer funds to a designated recipient via PayPal, using the recipients email address or mobile phone number. The designated recipient will need to establish a PayPal account (unless they already have one) to access the transferred funds.
Dollar Limits: PayPal Transfers are subject to a dollar limit of $2,000 per transaction and $4,000 aggregate total each day.
Fees: PayPal Transfers are subject to a fee of $0.50 per transfer.
Designated Account – When using the Xpress People Pay Service, you must designate the Account (“Designated Account”) from which the transfers are to be made, in addition to other details prompted by the Xpress People Pay Service (e.g., the name of the payee, applicable account number, and routing number, the amount of the transfer and the transfer date (“Send On Date”).
Use of Vendors; Use of Information – We may use one or more vendor(s) to provide the Xpress People Pay Service and you understand that various financial intermediaries and their servicers may be involved in processing any one of your transfer instructions. These intermediaries may benefit from interest that accrues on transfers between the time your Designated Account is debited and the time the payee is paid. Any information you provide may be used by us or any of these other parties to complete or otherwise deal with your transaction or comply with any laws, rules or regulations.
Setting-Up Payees – When you use the Xpress People Pay Service, you must designate to the recipient of the funds transfer will be, including any detailed prompted by the Xpress People Pay Service. A recipient is anyone, including us, that you designate to receive a transfer. We reserve the right to refuse to prohibit payment to a recipient via the Xpress People Pay Service.
Payment Methods – Xpress People Pay payment methods may include, but may not be limited to, an electronic payment, a credit to an account with an electronic commerce company that facilitates payments on behalf of third parties (e.g., PayPal), an electronic check payment drawn off your account or an account of our vendor, or a demand draft payment (where a negotiable instrument is created and drawn off of your Designated Account).
Timing – Xpress People Pay Transfers will be debited from your Designated Account on the Send On Date; provided that the Send On Date selected by you is a business day and you submit your one-time transfer instruction prior to the transfer cutoff hour for that date. If you select a Send On Date that is not a business day or submit your transfer instruction after the transfer cutoff hour for that date, then the Send On Date may be the next business day. Funds will be available to the recipient based on the Xpress People Pay Transfer feature you select.
Available Funds; Fees – You will need to have sufficient available funds in your Designated Account to cover the amount of your payment orders and applicable fees. You can initiate Xpress People Pay Service instructions up to the available funds in your eligible Account, plus any linked credit or other overdraft facility (as applicable). Depending on the method used to submit your payment order, your Designated Account may not be debited on the Send On Date. Regardless of whether your Account is debited on the Send On Date or at a later time, you must continue to maintain sufficient available funds in your Designated Account to cover the amount of the payment order and applicable fees until it is ultimately debited from your Designated Account.
You acknowledge and agree that, any applicable Xpress People Pay Service fees and charges may be charged regardless of whether the Xpress People Pay Service instruction is completed, unless the failure to complete the instruction is solely due to our failure. Additionally, third party financial institutions and intermediaries (e.g., PayPal) may impose fees on recipients.
Payment Cancellation Requests – Your A2A Transfers and PayPal Transfers cannot be cancelled once you have confirmed to send. You will have the ability to cancel your P2P Transfer instructions up until it is retrieved by the recipient, provided it has not been canceled or expired.
Accurate Information on Payees – The Transfer will be processed using the information you supply, and if the information you give to us is inaccurate or incomplete in any way the transfer may be delayed or misdirected. We and the others that handle your transfer (including the payee’s bank) are entitled to rely on information you supply, such as the payee’s account number or the routing number of the payee’s bank, even if the name you give to us and the number you give to us identify different persons.
Account Authorization – When we receive an Xpress People Pay Service instruction from you, you authorize us to debit your Designated Account for the amount of the Send On Date plus any related fees in effect, and to remit funds on your behalf. You acknowledge and agree that any applicable fees will be charged when we receive a Xpress People Pay Service instruction from you, regardless of whether the payment order is ultimately completed.
Emails/Calls/Text Messages – By providing us with an email, telephone number (including a mobile number), you consent to receiving emails, telephone calls and text messages from us or our service providers at that number for non-marketing purposes. For example, we or our service providers may contact you in connection with validating or processing a transaction that you have requested through the Xpress People Pay Service. In addition, users of the P2P Transfer feature (including transfer recipients) may receive certain notices as email messages and text messages on their mobile device. You expressly consent to receipt of these emailed and text messages and also represent that you have obtained the consent of the P2P Transfer recipient to their receipt of these emailed and text messages.
ACH Entries – Electronic fund transfers that are made through the ACH are subject to the rules of the ACH, and you agree to be bound by the Operating Rules of the National Automated Clearing House, including the rule making payment to the payee provisional until receipt by the payee’s bank of final settlement of the credit transaction. If final settlement is not received, you will not be deemed to have paid the payee the amount of the electronic transfer. Furthermore, you agree that any payment by us to you for any returned credit entry or credit reversal is provisional until receipt by us of final settlement for such entry. If final settlement is not received, we are entitled to a refund from you of the amount credited and we may charge your account for the amount credited. We may refuse to permit the use of any amount credited for a credit reversal if we believe that there may not be sufficient funds in your account to cover charge back or return of such reversal.
Intercepted or Returned Transfers – You acknowledge and agree that any person with access to the email account or mobile telephone number supplied to us, or any device used in connection with such email account or mobile telephone number, may have the ability to claim the funds sent via the P2P Transfer feature, even if such person is not whom you intended to receive such transfer. You agree that we will not be responsible for ensuring any funds sent via P2P Transfer feature are claimed by the designated recipient. If any funds sent via the P2P Transfer feature are not claimed within any time period established by the Xpress People Pay Service from time to time, you agree that we may reverse such transfer and credit the applicable funds to the Designated Account from which such transfer was sent. If we do so, we will not be liable for: (a) any interest that may have accrued on such funds or (b) fees and expenses charged with respect to the Designated Account, during the time such funds were unclaimed.
Access and Use – Your access to the Xpress People Pay Services is subject to our prior and ongoing approval, as well as your enrollment in our online banking services. We may deny your access to all or any part of the Xpress People Pay Services, at our sole discretion. To utilize the Xpress People Pay Services you must either enroll through our online banking system or using your wireless access device (“Wireless Access Device”). Once you have enrolled for the Xpress People Pay Services, designated accounts linked to your Online Banking security codes will be accessible to the Xpress People Pay Services. To access Xpress People Pay service and functions using your Wireless Access Device, your Wireless Access Device must be Internet enabled and connected to the Internet through your mobile communications service provider. We reserve the right to change, add to, or terminate services with our third-party software providers, to substitute different software providers, and to enter into or arrange for the provision Xpress People Pay Services by other licensors and third-parties.
You agree to exercise due care in preserving the confidentiality of any user identification, password, test key, or other code or authentication method provided by us or otherwise required for use of the Xpress People Pay Service and shall further prevent the use of the Xpress People Pay Service by unauthorized persons. You assume full responsibility for the consequences of any missing or unauthorized use of or access to the Xpress People Pay Service or disclosure of any confidential information or instructions by you, or anyone acting on your behalf.
Security of Data Transmission and Storage – You expressly acknowledge that any wireless access to your accounts may not be secure and, as such, you assume the risk associated with unauthorized access to the Xpress People Pay Services and any information contained therein, resulting from such wireless connectivity. You assume all risk that any information you download or otherwise stored on your Wireless Access Device may be accessed by unauthorized third parties. Without limiting the foregoing, you acknowledge that your Wireless Access Device may become subject to unauthorized tracking, "hacking" or other manipulation by spyware, viruses or other malicious code ("malware"). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk.
We are not responsible for the security and confidentiality of information when you: (i) use wireless connections to download your account information, in which case you acknowledge such connection may permit other persons to access the information being downloaded, or (ii) allow other persons access to your Wireless Access Device. You agree that any account information that you download is done at your own risk, and you are solely responsible for any damage that might occur to the electronic device to which you download any information, or any loss or corruption of data that might occur as a result of the downloading or its storage on an electronic device.
YOU AGREE TO TERMINATE THE XPRESS PEOPLE PAY SERVICE, OR DISABLE YOUR REGISTERED WIRELESS ACCESS DEVICE FROM THE XPRESS PEOPLE PAY SERVICE IMMEDIATELY IN THE EVENT YOUR REGISTERED DEVICE BECOMES LOST, STOLEN OR IS NO LONGER IN USE BY YOU.
CHECK STOP PAYMENT SERVICE – You may request a stop payment on a check issued on your Account(s) by completing the form presented as part of the check stop payment Service and submitting all the required information to us ("Check Stop Payment"). Check Stop Payments must be received by us in sufficient time prior to presentment of the relevant item for payment that we have a reasonable opportunity to act on the request. All Check Stop Payment orders, renewals, and revocations of stop orders will be subject to our current policy on stop payment orders. For significant or material items, contact us by coming to one of our branches or by telephone in addition to using the Services for Check Stop Payment. You are responsible for reviewing all information available to you to determine whether the check has already been paid, including your account statements. Information available online may not include sufficient historical information to verify whether the check has been paid. The lack of payment confirmation does not conclusively represent that the check has not already been paid. In any event, we must receive and process your Check Stop Payment Order in sufficient time prior to presentment of the check so that we have a reasonable opportunity to act on your request.
You must give us timely, complete, and accurate information, including the check date, payee, EXACT amount of the check, check number, and reason for the stop request. If any information is incomplete or inaccurate, we will not be responsible for failing to stop payment on the check.
You may use the Check Stop Payment Service to stop payment on checks that you have written against your Accounts. If you wish to cancel or amend any other Service transaction, you should use the process applicable to that Service, and you will be subject to any limitations or inability to stop applicable to that Service.
You may not use the Check Stop Payment Service to stop payment on any ACH/EFT transaction, point-of-sale ACH/EFT transfer; any cashier's check, certified check or other official institution check you have purchased from us or any check which we have guaranteed. You understand that your Check Stop Payment request is conditional and will not be effective if we have not had a reasonable opportunity to respond to your request, or that stopping payment may subject us to risk of loss or damages under any law or regulation (including clearing house or other processor rules).
A Check Stop Payment request against a check is effective only against the check that is described in the Check Stop Payment request form; and does not cancel or revoke any authorization for future or recurring ACH/EFT transfers by you or by the same biller or originator. A Check Stop Payment order is effective for six (6) months only and will expire automatically, at which time you are responsible for any renewal desired by you for another six (6) month term. From time-to-time, the System may be inoperable. If that occurs, your request can be communicated to us by telephone. The fee to place a stop payment disclosed under the "Fees and Charges" Section of this Agreement.
ACCOUNT ALERTS - The account Alerts feature is a convenience tool that permits you to request automated email notifications of specific situations. You are responsible to input accurate information to set up the account notifications. Alerts do not replace standard communications you receive from us concerning your accounts. If you are enrolled in the Mobile Banking Services, you may elect to receive the Alerts by text messaging. If you elect to receive Alerts by text messaging from us, you acknowledge that such messages will be automatically sent to your Wireless Access Device. You assume all responsibility for the secure receipt of the text messages and acknowledge that these Alerts are not sent through a secure channel and may be intercepted or read by others. Receipt of Alerts may be delayed, or prevented by factor(s) affecting your Internet service provider(s), phone operator(s), and other relevant entities. We neither guarantee the delivery or the accuracy of the contents of any Alert. We will not be liable for losses or damages arising from: (i) non-delivery, delayed delivery, or wrong delivery of any Alert: (ii) inaccurate content in an Alert; or (iii) your use or reliance on the contents of any Alert for any purposes. We reserve the right to terminate any request from you, for any Alert, at any time. The information in any Alert may be subject to certain time lags and/or delays. You will manage the types and timing of your Alerts, and the Alerts may be stopped or suspended by you at any time.
CHANGE IN TERMS - We may amend, add to or change this Agreement (including changes in its fees and charges, or Services). We will provide notice of amendments, additions or changes if required by law. Your continued use of the Services will constitute your consent to the amendments, additions or changes.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY - We make no warranty of any kind, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, in connection with the System Services provided to you under this Agreement. We do not and cannot warrant that the System will operate without errors, or that any or all System Services will be available and operational at all times. Due to the possibility of human and mechanical errors, as well as other factors, the System website is not error-free, and all information is provided "as-is," without warranty of any kind. We make no representation and specifically disclaim any express or implied warranties to users of any third parties, including but not limited to, warranties as to accuracy, timeliness, completeness, merchantability, or fitness for any particular purpose. Except as specifically provided in this Agreement, or otherwise required by law, you agree that our officers, directors, employees, agents or contractors are not liable for any indirect, incidental, special or consequential damages under or by reason of any services or products provided under this Agreement or by reason of your use of or access to the System, including loss of profits, revenue, data or use by you or any third party, whether in an action in contract or tort or based on a warranty. Further, in no event shall the liability of Bank and its affiliates exceed the amounts paid by you for the Services provided to you through the System.
Without limiting the foregoing, you agree that we will not be liable for viruses, worms, trojan horses, or other similar harmful components that may enter your computer system by downloading information, software, or other materials from our site. We will not be responsible or liable for any indirect, incidental or consequential damages that may result from such harmful components.
CONSENT TO ELECTRONIC DELIVERY - You agree that any notice or other type of communication provided to you pursuant to the terms of this Agreement may be made available to you electronically by posting the notice on the Bank System website. To the extent required by applicable law or regulation.
- Where it is necessary for completing transfers;
- In order to verify the existence and condition of your account for a third party, such as a credit bureau or merchant;
- In order to comply with government agency or court orders; or
- If you give us your written permission.
SECURITY INTEREST IN ACCOUNTS - You grant us a security interest in all accounts or other deposits (whether general or special) of yours at the Bank, to secure your obligations to us under this Agreement. This security interest will survive termination of this Agreement. We may hold any funds on deposit with us by you after termination of this Agreement for up to 90 days following the expiration of any return or chargeback rights or, if later, until any other claims to such funds have expired.
ELECTRONIC RECORDS AND SIGNATURES - When any Service generates items or transactions to be charged to your Account, you agree that we may charge the affected Account without requiring your signature on an item and without prior notice to you. Any transactions resulting from your instructions which we receive in your name and under your credentials shall be deemed to have been "a writing" and authenticated by you "in writing" for purposes of any law in which a writing or written signature is needed or required. All records maintained by us of transactions under your credentials shall be deemed to have been "signed" and to constitute an "original" when printed from records established and maintained by us or our authorized agent in the normal course of business. You agree not to contest to the authorization for, or validity or enforceability of, our electronic records and documents, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or records are to be in writing or signed by the party to be bound thereby. Records and "signed" documents, if introduced as evidence on paper in any judicial or other proceedings, will be admissible to the same extent and under the same conditions as other documentary business records. Upon our written request, you agree to manually sign or place your signature on any paper original of any record or "signed" document which we provide to you containing your purported signature.
COMPLIANCE WITH LAWS AND RULES - You agree to comply with all state and federal laws, rules, and regulations applicable to you and to your use of the Services (the "Laws"), including the operating rules of all systems used to provide Services to you (the "Rules"), and to provide evidence reasonably satisfactory to us of the same if requested by us. You agree not to use the Service for any illegal purpose, including but not limited to illegal Internet gambling. Without limitation, you agree and acknowledge that the Services may not be used by you in violation of the laws of the United States, including sanction laws administered by the Office of Foreign Asset Controls. You acknowledge and agree that the software you use to access Services may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations. You agree and certify that neither the software nor any direct product thereof is being or will be used by you for any purpose prohibited by these Acts.
Additionally, each Account and the Services will be subject to and governed by the following:
- The terms or instructions appearing on a screen when using a Service;
- The deposit agreement terms and conditions, and our rules, procedures, and policies;
- Applicable provisions of the rules of the National Automated Clearing House Association (NACHA) for bill payments facilitated through the ACH;
- Applicable state and federal laws, rules, and regulations; and
- The rules of other funds transfer systems when used in connection with a Service.
Nothing in this Agreement relieves you of any obligation you may have under the Laws or the Rules, and this Agreement is deemed modified to the extent necessary to allow or require you to comply with the same. You will implement and maintain procedures, including retention of legal or compliance services, to ensure that you are able to comply with all current and future Laws and Rules, including any changes to them. We are not obligated to provide information, updates or notice of or regarding the Laws or the Rules, even if we are aware of the same and of the potential for material impact on you and your use of the Services, and your indemnification and other obligations to us are not relieved or reduced by our not providing the same to you. If we do provide information, updates or notices of or regarding the Laws or the Rules to you, we are not responsible for the accuracy of the same and may discontinue doing so at any time.
THIRD PARTIES - You acknowledge and agree that we may arrange to provide software, if required, and/or may arrange for the Services covered by the Agreement to be performed or provided by third parties, including our affiliates. You further agree that any such party is a third-party beneficiary of the Agreement and as such is entitled to rely on, and avail itself of, the provisions of the Agreement as if it were us, including, without limitation, the limitations on liability and the indemnities described in the Agreement. Our ability to provide certain Services may be dependent upon our ability to obtain or provide access to third-party networks. In the event, any third-party network is unavailable or we determine in our sole discretion, that we cannot continue providing any third-party network access, we may discontinue the related Service or may provide the Service through an alternate third-party network. In such situations, we will have no liability for the unavailability or delay of access.
Notwithstanding the limitations described above pertaining to third parties, if you authorize a third party to access the Services on your behalf, you will be solely responsible and liable for all actions and inactions of said third party. You expressly assume the risks associated with providing Service access rights to your agents or third-party vendors, including but not limited to the risk of unauthorized or erroneous transactions. We will not be responsible, nor have any liability whatsoever for any services you receives from your agents or third-party vendors. We reserve the right to require you to agree to additional terms and conditions as a condition precedent to your use of any agent or third-party vendor in connection with your access to the Services.
RELATIONSHIP TO THIRD PARTY SERVICE AGREEMENTS - You agree that, when you use the Services, including the Mobile Banking Services, you remain subject to the terms and condition of your existing agreements with any unaffiliated service providers, including, but not limited to your mobile service provider. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of the Services, and you agree to be solely responsible for all such fees, limitations, and restrictions. You also agree that only your service provider is responsible for its products and services. For example, you agree to resolve any problems pertaining to your Wireless Access Device or mobile services with your provider directly.
UPLOADED CONTENT, LINKED SITES AND ADVERTISEMENTS - From our website, you may be able to access uploaded content provided or operated by third parties. Unless we tell you otherwise in writing, we do not operate or control any such content or any of the information, products or services on such linked websites. You acknowledge and agree that: (i) you access such content and linked sites at your own risk; (ii) we make no representation or warranty, and assume no responsibility for, content on our website and any linked site or the actions or omissions of its/their owners, operators or providers; (iii) we make no endorsement of, and assume no responsibility for, content uploaded to our website or goods or services offered on or advertising on or by any other website; (iv) by using other websites and Services, you may be exposed to content that is offensive, indecent or objectionable; and (v) although we may have a contractual or other relationship with the operators of a linked website or the providers of content, we will not be responsible for the content, accuracy, integrity, availability, timeliness or operation of their website or content. You agree to hold us harmless in connection with all of the foregoing.
We reserve the right, but shall have no obligation, to reject, move, or delete content that we, in our sole discretion, believe violates this Agreement, or contains content, including viruses, that may interfere with the operation of our website. We may, but have no obligation to, monitor, and/or retain copies indefinitely of, uploaded content, message boards, chat rooms or other forums or review content, or messages posted at such locations, to confirm their compliance with these guidelines. We shall have the right, but not the obligation, to disclose content to any third party if required by law or if we believe reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any content violates rights of third parties; or (d) protect our rights, property, or personal safety, or those third parties.
THIRD PARTY CONTENT - We may receive, process, and make available to you content that we receive from you and others. In this regard, we are merely a passive conduit for such content, although we reserve the right to block or remove any content that we believe violates this Agreement. We assume no responsibility for determining the accuracy, reliability, timeliness, ownership, legality, appropriateness or completeness of any information that you or others provide to us, nor for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity on such sites. We will not have a duty to interpret or evaluate any content transmitted to us or through our website or Services, except to the limited extent, if any, set forth in this Agreement. We will not be required (by means of any security procedure or otherwise) to detect errors or illegality in the transmission or content of any content we receive from you or third parties. We will not have a duty to notify you about any inaccuracy, unreliability, ownership, incompleteness or other problem that may be associated with third-party content on our website, even if we have reason to know of its existence. Use of any content you obtain from our website is at your own risk.
USER COMMUNICATION AND PERSONALIZATION SETTINGS - Our website and Services may permit you to send or receive communications and to store content and personalized settings for various options. We are not responsible for any delay, deletion, alteration, mis-delivery or failure to deliver or store any such communications, content or settings.
OUR INTELLECTUAL PROPERTY - You acknowledge and agree that the software and content used by us in the operation of our website and provision of the Services, and the copyright patent, trademark, trade secret and all other rights in and to the technology, software, content, designs, graphics, and trademarks included by us on our website and as part of the Services and our name and product names and the website's URL (collectively, by the "Intellectual Property"), are owned by us and our licensors. As such, you will not gain any ownership or other right, title or interest in or to such Intellectual Property by reason of this Agreement or otherwise.
You many not distribute, use, reproduce, duplicate, copy, publish, sell or otherwise transfer (i) any portion or element of the Services or the Intellectual Property; (ii) use of our website, Services or Intellectual Property; or (iii) access to our website Services or Intellectual Property. Further, you may not (a) create derivative works of any portion or element of our website, Services or Intellectual Property; (b) reverse engineer, modify, decompile or disassemble any of the Intellectual Property; (c) deactivate or disable any password protection or other protection, security or reliability technology we incorporate in our website or the Services; (d) modify or erase any copyright or trademark notice we place at our website; (e) engage in the practice known as "screen-scraping" or otherwise attempt to, or actually, obtain copies of content provided at the site or a list of our content or site users, or use computer programs (sometimes known as "scraper," "spiders," "robots," or "bots") to systematically access and download data; (f) access the Services by any means other than via our website; (g) frame our website or any Intellectual Property; or (h) use any circumvention tools, meta tags or any other "hidden text" utilizing our name, trademark, URL, product name or Intellectual Property. You agree to comply with the terms of any license agreement we make available to you with any software.
USER CONDUCT - You agree not to use the Service or the content or information in any way that would: (a) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Service to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising or illegal Internet gambling); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) potentially be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt computer networks connected to the Service; or (i) use the Service in such a manner as to gain unauthorized entry or access to the computer systems of others.
SERVICES NOT SUBSTITUTE FOR LEGAL, TAX, OR FINANCIAL ADVICE OR PLANNING - You acknowledge that the Services, Bank, its employees and service providers are not intended to provide legal, tax or financial advice or planning. The Services are merely a tool for use to assist your independent decision-making and have not been designed in contemplation of your specific needs or risk tolerances. Prior to making any financial decisions, communicating or taking any action with respect to information made available using the Services, you represent that you will have obtained appropriate and independent legal and tax advice regarding the same, as you deem appropriate.
CHOICE OF LAW - This Agreement shall be governed by and interpreted in accordance with the laws of the state of California, except where preempted by federal law.
TERMINATION, SUSPENSION; AND DELAY - We may terminate or suspend this Agreement and any service provided hereunder at any time. We will provide electronic or written notice of termination to you. Except to the extent restricted by law, we reserve the right to terminate or to discontinue support of any Service, or delay or refuse processing any transaction, without written notice. You may terminate this Agreement upon 30 days written notice to us. Termination of this Agreement will not affect any rights we may have, or any obligations you may have, as to any transaction or Services caused or attempted by you before termination. Without limiting the foregoing, if you do not use this Service for any three-month period, we reserve the right to discontinue your Service without notice to you.
PROVISIONS SPECIFIC TO COMMERCIAL ACCOUNTS
This "Provisions Specific to Commercial Accounts" Section applies only to commercial accounts as defined in this Agreement. You are responsible for and bound by any Communication we receive in your name through a Service if the Communication: (a) comes from an authorized representative; or (b) is authenticated using security procedures, described herein, even if not authorized by you; or (c) is legally binding on you under the laws of agency, contract or otherwise.
Authorized Representatives. Your "authorized representative" includes each person who is (1) authorized by you to conduct business with us, including as part of your account management resolution(s); or (2) a principal officer of yours (such as your CEO if you are a corporation, or a partner in a partnership, or a manager in an LLC); or (3) otherwise authorized (or deemed authorized) to act on your behalf, whether under this Agreement or any other agreement with us, by the laws of agency, or under by any other state or federal law, rule or regulation.
You agree to assume all risks associated with providing Security Codes to your employees or agents, understanding that this can result in other persons obtaining access to your Account without control or monitoring by us. You must establish authorization parameters and/or limits for each person you authorize to use the Service. You agree to use and implement each control (including template management, verification, access, use of maximum process settings, security, audit and review procedures) to prevent unauthorized persons gaining access to Security Codes or you Accounts.
Responsibility For Communications In Your Name, Whether Or Not Authorized By You. The Security Codes are security procedures. You agree that we may use the security procedures to verify the authenticity of Communications that are received by us in your name. If we verify the authenticity of a Communication or instruction received in your name using the security procedures, we may rely on it and you will be obligated on the Communication or instruction, whether or not it was authorized by you.
On the other hand, if a Communication or instruction was authorized by you or if you would otherwise be bound by it under this Agreement, you will be obligated on it even if we did not verify its authenticity using the security procedures and even if the security procedures would have prevented error. You agree that the security procedures are intended to verify authenticity and not to detect error.
Responsibility For Security Procedures. In addition to the Security Codes as security procedures, you may choose additional security procedures. We may from time to time offer supplemental security procedures, and you agree to consider them. You agree to follow any instructions we provide to you about using, storing or otherwise related to security procedures.
You agree to consider the size, type and frequency of the payment orders or other money transactions you will or intend to use Services to accomplish. You agree to consider the risks presented by the possibility of unauthorized access to these Services, including the risk loss to you that we may process Communications and instructions that are your responsibility even though they were not authorized by you. You agree to use Services only after determining, and only for so long as you continue to determine, that the security procedures are a commercially reasonable method of providing security against unauthorized payment orders or other Communications. You agree and acknowledge that the security procedures are commercially reasonable for you and that you will be bound by instructions or Communications in your name, as set forth above.
You agree to take appropriate steps to ensure that all Security Codes are protected and kept confidential. In your review of the Services, including those aspects of the Services pertaining to the issuance, use, and protection of Security Codes and security procedures, you agree to notify us if your use of the Services would necessitate or be better served by a level of security that exceeds that offered by the Services. If you fail to notify us, then you acknowledge and agree that the security procedures of the Services are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use.
Refusal To Process Communications. We may delay or refuse to process any requested Service, including payment orders or other money transactions, or any other Communication from you. We may do so for any reason or for no reason. We may provide notice to you, but are not obligated to do so. We may delay or refuse processing, for example, if: (a) processing would or may exceeds the available funds in your affected Account; (b) the Communication is not authenticated to our satisfaction or we believe it may not have been authorized by you; (c) the Communication contains incorrect, inconsistent, ambiguous, or missing information; (d) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; (e) processing would or may cause a violation of any Laws or Rules applicable to you or to us; or (f) for any other reason under this Agreement. In addition, we shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in our having exceeded any limitation upon our intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in our reasonable judgment otherwise violating 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. You agree that we will have no liability to you or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal.
Limitations on Liability. Unless otherwise required by applicable law, we are only responsible for performing Services as expressly stated in this Agreement, and will only be liable for material losses incurred by you to the extent such losses directly result from our gross negligence or intentional misconduct.
IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE), INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, OR THE INABILITY TO USE THE SERVICES, IRRESPECTIVE OF WHETHER WE HAVE OR HAVE NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF US FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION, SHALL BE THE LESSER OF THE AMOUNT YOU ORIGINALLY PAID FOR THE SERVICE, PRODUCTS OR MATERIALS OR $50,000.00.
You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Services. You acknowledge that Service fees have been established in contemplation of: (A) these limitations on our liability, (B) Your agreement to review statements, confirmations, and notices promptly and to notify us immediately of any discrepancies or problems; and (C) Your agreement to assist us in any loss recovery effort.
Indemnification. You agree to indemnify and hold us, our affiliates, officers, directors, employees, consultants, agents, service providers, and licensors harmless from any and all third party claims, liability, damages and/or costs (including but not limited to reasonable attorney's fees) arising from: (1) an Account; (2) the performance of a Service; (3) a third party claim, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or other materials submitted by you to us; (4) any fraud, manipulation, or other breach of these terms; (5) any third party claim, action, or allegation brought against us arising out of or relating to a dispute with you over the terms and conditions of an agreement, purchase or sale of any goods or services; (6) your violation of any Law or Rule or of the rights of a third party; (7) your use, or the provision of Services or use of your Account by any third party; or (8) any transaction or instruction or Communication from you to us. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You will not settle any action or claims on our behalf without the prior written consent from us. This indemnification is provided without regard to whether our claim for indemnification is due to the use of the Service by you or your authorized representative. This indemnification provision survives termination of this Agreement.
Data Retention. You will retain data on file adequate to permit remaking or reconstruction of all requested Services (including payment orders or other money transactions) for one year following the date of the execution of the request to which such data relate, and will provide the data to us upon our request. You agree to determine promptly the accuracy of all records and information regarding a Service and to notify us immediately of any errors in such records or information. Nothing in this Agreement relieves you from: (a) any responsibility imposed by law, regulation or contract with regard to the maintenance records; or (b) any responsibility to perform audits and account reviewers customarily conducted by persons or entities whose businesses are similar to your business.
Advice of Payment; Duty to Examine. You agree to examine any records or monthly account statements promptly upon receipt. You will notify us immediately, and in no event later than 14 days after receipt of the record or account statement, whichever is earlier, of the existence of any errors, unauthorized transactions, or irregularities reflected on the record or on the account statement. If you fail to notify us of any such discrepancy with 14 calendar days of receipt of the record or statement containing such information, you agree that we will not be liable for any other losses resulting from your failure to give such notice or for any loss of interest with respect to a transaction that is or should have been shown. Except to the extent expressly limited by applicable law, if you fail to notify us of any such discrepancy within one year of receipt of such statement or report, you will be precluded from asserting the discrepancy against us. For purposes of this Section, you will be deemed to have "received" a periodic statement at the earlier of the time that: (a) we first make it available to you for pick-up; or (b) the statement or the information is mailed or otherwise made available to you electronically.
Providing Personal and Financial Information. You agree to provide true, accurate, current and complete personal and financial information about yourself and about your affiliates as requested. You agree to not misrepresent your identity.
Collection. If we initiate collection proceedings against you in an effort to recover any amounts owed, you agree to reimburse us for all costs and expenses, including attorneys' fees. "Attorneys' fees" includes reasonable charges for the time expended by in-house counsel.
Corporate Authority; Partnership Authority If you are a corporation or LLC, the person signing this Agreement on behalf of the corporation or LLC represents and warrants that he or she has full authority to do so and that this Agreement binds the corporation or LLC. If you a partnership, the person signing this Agreement for you represents and warrants that he or she is a general partner of the partnership, that he or she has full authority to sign for the partnership and that this Agreement binds the partnership and all general partners of the partnership. You shall give written notice to us of any general partner's withdrawal from the partnership.
PROVISIONS SPECIFIC TO CONSUMER ACCOUNTS
THE FOLLOWING "PROVISIONS SPECIFIC TO CONSUMER ACCOUNTS" SECTION CONTAINS IMPORTANT CONSUMER DISCLOSURES UNDER THE EFTA. The following provisions only apply to consumer accounts as defined under this Agreement and are not intended to confer any rights or benefits to commercial accounts.
Right to Stop Electronic Payment and Procedure For Doing So. If you have told us in advance to make regular electronic payments out of your Account, you can stop any of these payments. Here's how:
You may follow the directions provided in the Services, to stop the payment through the Services, or
Call us at (866) 985-0616 or (626) 656-1109, or write to us at: EverTrust Bank, Attn: Operations Administration, 18645 E. Gale Ave., Suite #230, City of Industry, CA 91748
in time for us to receive your request 3 business days or more before the payment is scheduled to be made. If you call, we may also require you to put your request in writing and get it to us within 14 days after you call. We will charge you a fee for each stop payment order you give. Refer to the "Fees and Charges" Section of this Agreement for details. A separate process will apply to the extent you wish to initiate check stop payment requests through the Services. Refer to "Check Stop Payment Services," above, for further details.
Notice of Varying Amounts. If these regular payments may vary in amount, the person you are going to pay will tell you, 10 days before each payment, when it will be made and how much it will be. (You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set).
Liability for Failure to Stop Payment of Preauthorized Electronic Transfer. If you order us to stop one of these electronic payments 3 business days or more before the transfer is scheduled to be made, and we do not do so, we will be liable for your losses or damages.
CONSUMER LIABILITY - Tell us AT ONCE if you believe any part of your Security Code, including your password, has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your account (plus your maximum overdraft line of credit, as applicable).
If you tell us within 2 business days after you learn of the loss or theft of any part of your Security Code, including your password, you can lose no more than $50 if someone used your Security Code without your permission.
If you do NOT tell us within 2 business days after you learn of the loss or theft of any part of your Security Code, including your password, and we can prove that we could have stopped someone from using the Security Code without your permission if you had told us, you could lose as much as $500.
Also, if your statement shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any funds you lost after the 60 days if we can prove that we could have stopped someone from taking said funds if you informed us in time. If a good reason (such as a long trip or a hospital stay), kept you from telling us, we will extend the time periods.
ERRORS AND QUESTIONS - In case of errors or questions about your electronic transfers, telephone us at (866) 985-0616 or (626) 656-1109 or write us at: EverTrust Bank, Attn: Operations Administration, 18645 E. Gale Ave., Suite #230, City of Industry, CA 91748, as soon as you can, if you think your statement is wrong or if you need more information about a transfer listed on the statement. We must hear from you no later than 60 days after we sent you the FIRST statement on which the problem or error appeared.
- Tell us your name and account number (if any);
- Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information; and
- The dollar amount of the suspected error.
If you tell us orally, we may require you to send us the complaint or question in writing within 10 business days. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If more time is needed, however, we may take up to 45 days to investigate a complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account.
For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.
We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may request copies of the documents that were used in the investigation.
ELECTRONIC CHECK CONVERSION - You may authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to: (i) pay for purchases; and (ii) pay bills.
FINANCIAL INSTITUTION'S LIABILITY - If we do not complete a transfer to or from your account on time or in the correct amount according to our Agreement with you, we will be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance:
- If, through no fault of ours, you do not have enough money in your account to make the transfer;
- The transfer would go over the credit limit on your overdraft line (if applicable);
- Circumstances beyond our control (e.g., fire, flood, power outage, equipment or technical failure or breakdown) prevent the transfer, despite reasonable precautions that we have taken;
- The computer or related system was not working properly and you knew about the breakdown when you started the transfer; and
- Your funds are subject to legal process or other encumbrances restricting the transfer.
There may be other exceptions stated in this Agreement and in other agreements with you.
PREAUTHORIZED CREDITS - If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can call us at (866) 985-0616 or (626) 656-1109 to find out whether or not the deposit has been made.
DOCUMENTATION - You will get a monthly account statement (unless there are no transfers in a particular month). In any case, you will get the statement at least quarterly.