This
Agreement and Disclosure pertains to CNB's Consumer and Small Business Online Banking
Products. This is a one time procedure for both Consumer and Small Business customers.
Please read this entire document. You must review and accept this Agreement and Disclosure
to access CNB's Online Banking. You may print this page at any time to retain a copy for your reference.
Click on
the appropriate "I Accept" button found below (select Consumer or Small Business) to proceed with your online banking access and setup, or select the
"Cancel" button below to exit from these setup procedures.
COMMERCE NATIONAL BANK
ONLINE BANKING AGREEMENT AND DISCLOSURE
I. TERMS AND CONDITIONS FOR BOTH CONSUMERS AND NON-CONSUMERS
1. Introduction
This is the Commerce National Bank Online Banking Agreement and Disclosure ("Agreement ") that governs the use of Commerce National Bank’s online banking services (“Services”). Specifically, this Agreement specifies the rights and obligations of Commerce National Bank and Bank customer with respect to use of the Services, as described below, via Commerce National Bank’s online banking system (“System”). By using the Services, you agree to the terms and conditions provided in this Agreement.
For purposes of this Agreement, the words “you,” “your,” “Authorized User,” “Customer,” “Company” and other similar terms refer: (i) each person who applies for the Services, as set forth below (including, but not limited to, the person who electronically agrees to this Agreement); and (ii) to anyone you authorized to use the Services via the System or anyone else authorized by the account holder, as set forth below, to exercise control over account holder’s funds through the System. The words “we,” “our,” “us,” “Bank” and other similar terms mean Commerce National Bank. “Electronic fund transfers” mean ATM withdrawals, preauthorized transactions, point of sale transactions and transfers to and from your accounts held at Bank using the System.
If you are an individual, then you agree to use our Services for consumer transactions only. If you are not an individual, including, but not limited to, a sole proprietor, corporation, partnership, limited liability company, unincorporated business entity or association, then you agree to use the Services for non-consumer transactions only. A “consumer transaction” means the use of the Services to electronically transfer funds to or from a consumer account. A “consumer account” is an account of yours that is established primarily for personal, family or household purposes. If you use the Services for a consumer transaction, then the terms and conditions in Section III. of this Agreement will not apply.
A “non-consumer transaction” means the use of the Services for any purpose that is not a consumer transaction (for example, a transfer to or from a business account or from a business account or any account that is not a consumer account) and in addition includes (to the extent allowed by law); (i) any transfer of funds through Fedwire or similar wire transfer system; (ii) any transfer of funds the primary purpose of which is the purchase or sale of a security or commodity; and (iii) any other use of the Services if the use is not covered by the Electronic Fund Transfer Act and its implementing Regulation E. If you use the Service for a non-consumer transaction, then the terms and conditions in Section II. of this Agreement will not apply.
Services means the different online transfer capabilities that you can choose from under the heading “Description of Services” below. All of the online transfer options may not be available to you.
All time references are local time of Bank.
2. Other Agreements
Your use of the Services may also be affected by other agreements between you and Bank including, but not limited to, the Deposit Account Agreement and Disclosure, Schedule of Fees and Charges and account disclosures. Your use of the Services does not change any other agreement you may already have with Bank. You should review those agreements for any applicable fees, for limitations on the number of transfers your can make, and for other restrictions which might impact the use of your account(s) with the Services.
3. Using Online Banking
3.1 General Requirements. In order to use the Services, you must have at least one checking account with Bank. To access your account(s) via the Internet, you must have a personal computer, phone/cable line access, World Wide Web access via a Secure Internet Service Provider and an Internet browser that supports 128-bit encryption. The System is best viewed using _Microsoft Internet Explorer 6.0 or higher If you use a MAC, Bank recommends using Firefox 1.0 or higher. Your Internet Service Provided can help you obtain the correct version. You will be responsible for acquiring, maintaining and operating the computer equipment located at your premises.
3.2 PIN and Password Requirements. The first time you access the Services, you will need to enter your temporary Access ID (“Access ID”) and temporary personal identification number (“Password or PIN”) and otherwise satisfy the System’s security procedures. The temporary Access ID is any one of your account numbers and the temporary Password will be the last four digits of your Social Security Number. You will be prompted to change your temporary Access ID and temporary Password after a successful log on. Your Access ID, which cannot be used without your Password, will provide you access to all of the accounts you currently have with Bank, whether individual or jointly held, as well as any new accounts you may open in the future.
You determine what Password you will use and the identity of the Password is not communicated with Bank. You agree that Bank is 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. Bank has no obligation to verify that you have used a reasonable level of protection or to verify that your Password is changed at reasonable intervals. Upon three unsuccessful attempts to use your Password, your access to the System will be revoked. To re-establish your authorization to use the System, you must contact Bank at 949-474-1020 to have your Password reset or to obtain a new temporary personal identification number.
You agree that Bank is entitled to act upon instructions received through the Services under your Password and without inquiring into the identity of the person using that Password. However, you agree that you will not, under any circumstances, disclose your Password by telephone or any other means to any person. You acknowledge that no person from Bank will ever ask for your Password and that Bank employees do not need and should not ask for your Password. You are liable for all transactions made by the authorized use of your Password and agree that, if you give your Password to anyone, you do so at your own risk since anyone with your Password will have access to your accounts. At any time, you may ask Bank to disable your Password.
For joint accounts, each person will have a separate Access ID and Password. Each person on a joint account will be liable for all transactions that are made on that account. Each person on a joint account authorizes all transactions made by any other person on the account. Each person on a joint account agrees to be liable for the actions of the other person(s) on the accounts.
You agree and acknowledge that your Access ID, your Password or PIN and Bank’s Challenge Questions are authentication tools or methods used by Bank to verify your identity and Bank may require you to use additional authentication tools or methods at any time and from time to time. Such additional authentication tools or methods include, but are not limited to, secret codes shared only between Bank and you and Vasco token devices. You further agree that if you do not use Bank’s additional authentication tools, if and when they become available, then your access and use of the Services or System may be limited or you may not be able to use the Services or System.
For purposes of this Agreement, Access ID, Password, PIN, Bank’s Challenge Questions and any other additional authentication tool or method offered or required by Bank in order to verify your identity will be referred to, collectively and individually as the “Code” or the “Codes.”
4. Description of the Services
Services Available You may use the Services to:
View current balance information.
View current transactions.
View previous account statements.
View images of paid items.
Transfer funds between Commerce National Bank savings accounts, checking accounts and money market accounts (with the same ownership and vesting).
Download (or export) account information to financial software programs and/or spreadsheets, such as Quicken, QuickBooks and Microsoft Money (Note: Bank is not responsible for the accuracy of data for its integration with financial software).
The balance and the activity information that you obtain through the System are as of 5:00PM from the previous business day and may not reflect current transactions. Your balance may reflect deposits not yet available to you under the Bank's funds availability policy, including current day deposits.
Some of the Services may appear on your screen that have not been approved for you, and, therefore, will not be available to you. Also, available Services may be added or cancelled at any time. Bank will update this Agreement to notify you of the existence of new Services. Upon your use of a new Service when it becomes available, you agree to be bound by the rules contained in this Agreement and any update to this Agreement.
You understand that any one owner of an account may utilize the System and the Services (including account viewing and internal transfers) without regard to any restrictions otherwise applicable to an account. This means, but is not limited to, that internal transfers initiated via the System or Services are not subject to any signature withdrawal restrictions even though it may be provided otherwise on the signature card applicable to the account.
You agree to comply with any applicable state or federal law in connection with your use of the Services and the fulfillment of its obligations under this Agreement. You acknowledge that the Services or the System may not be used in violation of, and transfers to third parties or to your account held another financial institution originated by you must comply with, the laws of the United States, including sanctions laws administered by the Office of Foreign Asset Controls.
5. Limitations on Services
5.1 Dollar Limitations. There is a dollar limit of sufficient available balance for transfers from you account to another account in your name held at Bank. Specifically, you agree that you will instruct Bank to make a withdrawal only when a sufficient balance is available in your account, plus your available overdraft line of credit (if any). If you do not have a sufficient available balance in your account, including available credit under any overdraft protection plan, then you agree that the transfer or payment amount will not be withdrawn from your designated account. Bank reserves the right to change the dollar limits upon written notice as required by law.
5.2 Transfer limitations. All transfers to and from an account will be subject to the terms and conditions applicable to the account as set forth in the account agreement governing the account, including but not limited to transfer limitations.
With respect to money market and savings accounts, you are permitted to make no more than six transfers and withdrawals, or combination of such transfers and withdrawals per calendar month to another account of yours held at Bank or to a third party by means of preauthorized or automatic transfer or telephonic (including data transmission) agreement, order or instruction and no more than three of the six transfers may be made by check, draft, debit card, including point of sale (“POS”) transactions, or similar order made by you and payable to third parties. Each internal transfer request initiated through the System from your savings or money market deposit account is counted as one of the six limited transfers you are permitted each month.
Should you exceed the permitted number of transfers on an account, Bank may close the account, impose a fee of $10.00, and/or change the account to a non-interest bearing deposit account.
5.3 Cut-off Hour for Transfers between Accounts. Transfers between your accounts held at Bank initiated before 5:00PM PST on a business day are posted to your account the same day. Transfers completed after 5:00PM PST or on a non-business day will be posted on the next business day. You agree to communicate with any other persons with authorized access to your accounts concerning any transfers, withdrawals or other transactions from your account in order to avoid insufficient funds being available to fund your transfer requests.
5.4 Cancelling Transfers. In order to cancel future dated (or, preauthorized) transfers between your accounts you must either contact Bank during regular business hours at 949-474-1020, or write to us at Commerce National Bank, 4040 MacArthur Blvd., Suite 100, Newport Beach, CA 92660, at least three business days or more before the scheduled date of the transactions. You can also cancel future dated internal transfers initially set up via the System by logging onto the System and following the applicable instructions. You agree that an instruction from you to Bank via the System to cancel a future dated transfers will not be valid unless Bank has received your instructions to cancel the transfer or payment no later than the end of the business day before the date on which the transfer is scheduled to be made.
6. Business Days
For the purposes of this Agreement, our business days are Monday through Friday. Holidays are not included.
7. Hours of Service
You can use the System seven days a week, twenty-four hours a day. However, some or all Services may not be available occasionally due to emergency or scheduled System maintenance. Bank will use reasonable efforts to pose notice of any extended periods of non-availability on the System website. Bank will not be responsible for any losses or inconvenience caused by these temporary unavailability periods.
8. Deposit Accounts
You agree to maintain sufficient available funds (as determined under Bank's funds availability policy) in each account accessible via the Services to cover all transfers or other entries initiated by you and affecting the account, or such higher amounts as Bank may specify from time to time. You agree that your funds may be held by Bank for a period of time following termination of the Services to protect Bank against any possible losses relating to your use of the Services.
9. Contact in Event of Unauthorized Transfers
If you believe your Code has been lost or stolen call:
949-474-1020
or write:
Commerce National Bank
4040 MacArthur Blvd., Suite 100
Newport Beach, CA 92660
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.
10. Force Majeure and Limitation of Liability of Bank
Notwithstanding any other provision of this Agreement, Bank will not be liable for any loss, expense or delay caused by accidents, legal constraint, strikes, fire, flood, terrorist action, war, riot, electrical or mechanical failure, software, acts or omissions by you, or any other third parties (including but not limited to acts or omissions of any telephone or telecommunications carrier), acts of God or any other cause or causes which are beyond Bank’s or a third party’s reasonable control.
11. Offer of Services through Affiliates or Third Parties
Bank reserves the right to offer the Services through an affiliate or unrelated third party. In order to provide the Services to you through this type of arrangement, you authorize Bank to disclose information on your accounts and services to the affiliate or third party who provides the Services.
12. Confidentiality
We will disclose information to third parties about your account or the transactions you make;
(i) Where it is necessary for completing transfers; or
(ii) In order to verify the existence and the condition of your account for a third party, such as a credit bureau or merchant; or
(iii) In order to comply with government agency or court orders; or
(iv) If you give us your written permission.
13. Termination
Bank reserves the right to terminate this Agreement or limit your use of the System or one or more of the Services at any time and for any reason, as determined by Bank in its sole discretion. Bank also reserves the right to terminate this Agreement at any time, with or without cause and without prior notice. Examples of when we may terminate this Agreement and the use of the Services without prior notice include, but are not limited to:
If you, or any authorized user of your Code, breach this or any other agreement Bank may have with you;
If Bank has reason to believe that there has been or may be an unauthorized use of your Code or account(s);
If there is conflicting claims as to the funds in any of your account(s);
If you request us to do so; or
If you do not access the System for a period of 90 days or longer.
You may terminate your use of the System at any time by sending your instructions to terminate use of the Services and the System by either: (i) emailing us through the System; (ii) by calling us at 949-474-1020; or (iii) by writing us at 4040 MacArthur Blvd., Suite 100, Newport Beach, CA 92660. Your access to the System will be suspended within one business day of our receipt of your instructions to terminate the Services or System. Termination will not affect your liability or obligations under this Agreement for transactions that have been processed on your behalf. You will remain responsible for all outstanding fees and charges incurred prior to the date of termination. Termination will apply only to your use of the System and does not terminate your other relationships with Bank.
14. Amendments
Bank may, from time to time and at any time amend, modify, add or delete (collectively and individually a “change”) the terms of this Agreement and will provide advance written notice of any change, as required by law. A change may include a change to existing terms, a change in terms, a change that involves a new term or a change that involves conditions not otherwise contemplated by you or Bank at the time this Agreement is entered. However, no prior notice is required when any change in terms is determined by Bank to be necessary to the security of the Services or System or to prevent a loss by Bank.
15. Entire Agreement
This Agreement, together with the Deposit Account Agreement and Disclosure and Schedule of Fees and Charges, the other applicable agreements deemed necessary by Bank, from time to time, to provide the Services pursuant to this Agreement and the Exhibits, constitutes the entire agreement between Bank and you with respect to the matters covered in this Agreement. No other agreement, statement or promise made by any party hereto or by any employee, officer, or agent of any party to this Agreement that is not in writing and signed by the parties is binding.
16. Notices
Except as otherwise expressly provided in this Agreement, any notice or other communication required or permitted to be given under this Agreement will be written and delivered, or sent by United States registered or certified mail, postage prepaid, or by express carrier, to your address as it appears on the Bank's computer file: or, if to Bank, addressed to:
4040 MacArthur Blvd., Suite 100
Newport Beach, CA 92660
Attn: Operations or Cash Management Department
unless another address is substituted by notice delivered or sent as provided in this Agreement. Except as otherwise expressly provided in this Agreement, any such notice will be deemed given when sent or received by Bank.
17. Attorney's Fees
The successful party in any such action will be entitled to recover from the unsuccessful party, in addition to any other relief to which it may be entitled, reasonable attorneys' fees and costs incurred by it in prosecuting or defending such action.
18. Severability
If any provision in this Agreement, or part of this Agreement, is held to be invalid, illegal or unenforceable, the remainder of the Agreement, or other parts or applications of such provisions, will not be affected.
19. Assignment
No assignment of this Agreement may be made by you without the prior written consent of Bank. Bank may assign this Agreement either in part or in whole at any time and with or without notice to you. This Agreement is binding upon your heirs and Bank’s successor and assigns.
20. Headings
The headings used in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions.
21. Waiver
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.
22. Governing Law
This Agreement is governed by the laws of the State of California, without regard to its conflict of laws provisions, and by applicable federal laws (except to the extent this Agreement can and does vary such rules or laws).
II. TERMS AND CONDITIONS FOR CONSUMERS ONLY
This Section II. applies only to Consumers and Consumer Transactions.
1. Consumer Liability
Tell us AT ONCE if you believe your Code 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). If you tell us within two business days after you learn of the loss or theft of your Code, you can lose no more than $50.00 if someone used your Code without your permission.
If you do NOT tell us within two business days after you learn of the loss or theft of your Code, and we can prove that we could have stopped someone from using your Code without your permission if you had told us, you could lose as much as $500.00.
Also, if your statement shows transfers that you did not make, including those made by Code or some 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 money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told 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.
2. Our 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 proximately caused by us. However, there are some exceptions. We will not be liable, for instance:
(1) If, through no fault of ours, you do not have sufficient funds in your account to make the transfer.
(2) If the transfer would go over the credit limit on your overdraft line.
(3) If the System was not working properly, and you knew about the breakdown when you started the transfer.
(4) If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.
(5) There may be other exceptions stated in our agreement with you.
3. Preauthorized Payments
3.1 Right to Stop Payment and Procedures for Doing So. If you have told us in advance to make regular payments out of your account, you can stop any of these payments. Here's how: call us at 949-474-1020, or write to us at Commerce National Bank, Attention: Operations, 4040 MacArthur Blvd., Suite 100, Newport Beach, CA 92660, in time for us to receive your request three business days or more before the date 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 $20.00 for each stop payment order you give.
3.2 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).
3.3 Liability for Failure to Stop Payment of Preauthorized Transfer. If you order us to stop one of these payments three business days or more before the date the payment is scheduled to be made and we do not do so, we will be liable for your losses or damages proximately caused by us.
4. Error Resolution
In Case of Errors or Questions About Your Electronic Transfers: Telephone us at 949-474-1020 or write us at Commerce National Bank, Attention: Operations at 4040 MacArthur Blvd., Suite 100, Newport Beach, CA 92660, 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 send the FIRST statement on which the problem or error appeared.
(1) Tell us your name and account number (if any).
(2) Describe the error or transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need information.
(3) Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your 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 we need more time, however, we may take up to 45 days to investigate your 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 your 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 days, we may not credit your account.
For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we take up to 90 days to investigate your compliant 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 there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
5. Documentation
5.1 Periodic Statements. 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).
6. Fees
At this time Bank is not currently imposing any fees for the use of the System or the Services; however, Bank reserves the right to impose such fees in the future. You are responsible for telephone, Internet service and any other third party fees you incur in connection with your use of the System or Services. Bank reserves the right to change Bank fees for use of the System or the Services at anytime and from time to time. However, where required by applicable law, Bank will notify you in advance (normally 21 days prior to effective date of change) of any such change(s).
If you are a consumer, you may stop reading this Agreement and go to I Accept button at the bottom of this Agreement.
III. TERMS AND CONDITIONS FOR NON-CONSUMERS ONLY
This Section III. applies only to non-consumer transactions.
1. You Are Responsible for Access Codes and Instructions In Your Name
The Codes are security procedures. You agree that Bank may use the security procedures to verify the authenticity of requests for an internal transfer (an "instruction") in your name that are received by Bank. If Bank verifies the authenticity of an instruction using the security procedures, then Bank may rely on and you will be obligated on the instruction, whether or not the instruction was authorized by you. Also, if an instruction was authorized by you, you will be obligated on the instruction even if Bank 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.
You agree that Bank will not be responsible for authenticating whether a payment order, instruction or other communication is originated by an Authorized User other than through the authentication process contained in the security procedures. Thus, for example, when an employee is added or deleted as an Authorized User on the System, the Bank will treat that person as "authorized" if the security procedures are followed, without verifying that the employee is still employed with you or otherwise investigating whether the employee is exercising authority granted by you or consistent with any internal limitations on activity established by you for that employee.
You agree to consider the size, type and frequency of transfers, payment orders or other money transactions you use the Services to accomplish. You will consider the risks presented by the possibility of unauthorized access to these Services and your obligation on instructions or communications even though they are unauthorized. You should choose security procedures that are commercially reasonable for you, after considering these risks. Once you have chosen the security procedures, you agree and acknowledge that they are commercially reasonable for you and that you will be bound by instructions in your name as set forth above.
2. Your Obligation to Review Security Procedures
You will review and implement all security procedures available in connection with the Services. After review of the Services offered by Bank, including those aspects of the Services pertaining to assuring the authenticity of an instruction or communication between you and Bank, you will notify Bank in the event 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 Bank, you acknowledge and agree that the security aspects of the Services are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use.
3. Your Obligations to Safeguard Security Procedures
You will establish procedures to protect the confidentiality of all information relating to the Services, including all Codes and security procedures, and will promptly notify Bank if you know or suspect that Codes, security procedures or other security information is stolen, compromised, or misused. You will require the Authorized Users to create new PINs at reasonably frequent periods, based on your assessment of the security requirements appropriate for the Services utilized by you. You assume all risks associated with disclosure of any Code or security procedures to your employees. You agree to limit disclosures of Codes or security procedures to those employees you will authorize to use the Services or who have a specific need to know.
4. Authorization and Processing Instructions
You are responsible for controlling access to the Services and for any limitations placed by you on the Services an Authorized User may utilize. The fact that Bank is or may be made aware of, or could have discovered, any limitation on access to a Service does not make Bank obligated to enforce or attempt to enforce any limitation.
You understand that each Authorized User may utilize Services (including inquiries, transfers and account verification) without regard to any restrictions otherwise applicable to an account. For example, if an Authorized User directs transfers from a given account, that person can initiate the transfers whether or not the Authorized User has been authorized to do so according to the signature card applicable to the account. For example, if an Authorized User's signing authority is over account "A" but not over account "B," but the Authorized User is given electronic access under this Agreement to transfer funds from account "B" to account "A," then the Authorized User could transfer funds from "B" to "A" and then withdraw funds from "A." Similarly, if an Authorized User accesses an account without you having established a dollar limit applicable under the System for his or her access, transactions initiated under this Agreement are authorized even if the same transaction would have been beyond his or her authority had it been initiated other than under this Agreement. You agree that any arrangements with Bank to require two or more authorized signatures for transactions involving your accounts do not apply to transaction using the Services.
5. Bank not Obligated to Honor an Instruction
Bank may in its sole discretion refuse to accept or otherwise execute any instruction or any request for Services, whether for cause or without cause, and shall have no liability for such refusal. Should any instruction not be performed by Bank in accordance with instructions received from you, Bank shall notify you on or before the next business day of Bank, or otherwise by more expeditious means (including telephonic notice).
6. Liability; Limitation of Liability; Indemnification
Bank agrees to be responsible only for performing the Services expressly provided for in this Agreement and shall be responsible only for its actions or inactions for which Bank has engaged in gross negligence or willful misconduct in performing those Services. Bank will not be responsible for your acts or omissions and none of your employees or agents shall be considered agents of Bank. You agree to defend, indemnify and hold Bank harmless against any loss, liability or expense (including attorney's fees and expenses) resulting from or arising out of (i) any claim of any person that is responsible for any act or omission by you or your employees or agents; (ii) any claims against Bank from a third party resulting directly or indirectly under this Agreement where Bank has acted in accordance with your instructions and/or within the terms of this Agreement; and (iii) any breach by you of any representation or agreements made pursuant to or in this Agreement.
As a condition precedent to any liability of Bank, you must notify Bank in writing of any alleged negligence or breach of this Agreement as promptly as reasonably possible, but in no event later than five business days following the day on which such alleged negligence or breach was, or could reasonably have been, discovered by you. Unless prohibited by applicable law, you understand and agree that Bank's liability and your sole and exclusive remedy for claims in connection with or arising out of this Agreement for any cause whatsoever and regardless of the form of action shall be limited to actual, direct damages for losses that do not exceed an amount of the fees charged by Bank to you for your use of the Services during the three month period preceding the date of the alleged negligence or breach resulting from Bank's gross negligence or willful misconduct.
In no event shall Bank be liable for special, consequential, incidental, exemplary or similar damages including, but not limited to, lost profits or lost savings, even if Bank was advised of the possibility thereof. Bank makes no warranties, express or implied, with respect to the Services or System whatsoever, including but not limited to, any warranty of merchantability, or fitness or a particular purpose, the existence of any latent or patent defects, viruses, or the accuracy or freedom from error, of the data or the program used by or furnished to Bank or to you by licenser or others in connection with the Services or System. Without limiting the generality of the foregoing, Bank makes no representation or warranty, express or implied, against any infringement of any proprietary rights of any other party. You assume the entire risk as to the quality and performance of the Services and System, the suitability of the Services, and with respect to any documentation. This paragraph shall survive the termination of this Agreement by either you or Bank, and also limits the liability of any agent, employee or affiliate of Bank.
Nothing contained in this Agreement shall be deemed to relieve you of any liability, duty or obligation which may be imposed upon you by any federal, state or municipal laws, including without limitation, laws requiring you to maintain records regarding your business or employees or to withhold taxes or other deductions.
7. Your Duty to Notify Bank of Error
You agree to notify Bank promptly (i) of any discrepancy between your records and the periodic account statements furnished by Bank to you, or (ii) if an instruction purportedly made on your behalf or charged to your account was not authorized by you, was erroneous or was executed improperly. You will be deemed to have notice of any discrepancy or of an unauthorized or erroneous instruction when you receive your periodic statement or when you receive actual notice that an instruction was accepted and acted upon by Bank or your account was debited with respect to the instruction, whichever occurs first. Also, you agree that you will be deemed to have “received” a periodic statement at the earlier of the time that: (a) Bank first makes it available for you to pick-up; (b) it is made available to you by U.S. Postal Service; or (c) Bank first makes it available electronically or by means of the System.
If you fail to notify Bank within 30 days after you received notice of a discrepancy or of an unauthorized or erroneous instruction, Bank will not owe you any interest on the amount in question even if Bank is otherwise liable to you in connection with the instruction or other communication or is obligated to credit you for the amount of the instruction or any portion thereof. If you fail to notify Bank of any such discrepancy within one year, you agree that Bank shall not be liable for any losses or damages, including, but not limited to, the principal amount of or loss of interest with respect to the unauthorized or erroneous instruction, resulting from your failure to give notice of the discrepancy or of the unauthorized or erroneous instruction and you will be precluded from asserting such discrepancy against Bank.
Electronic Execution
By clicking the “I Accept” button below, you confirm your agreement to be bound by all of the terms of this agreement and acknowledge your receipt and understanding of this agreement.
Click on
the appropriate "I Accept" button found below (select Consumer or Small Business) to proceed with your online banking access and setup, or select the
"Cancel" button below to exit from these setup procedures.
