INTERNET BANKING TERMS AND CONDITIONS (AGREEMENT)

The following information represents the Farmers and Merchants Bank Internet Banking Agreement and, for Business Customers, the Master Cash Management Agreement between you and Farmers and Merchants Bank (“Bank,” “we,” “our,” “ours”).  This Master Agreement, including, as applicable, any related Internet Banking Application and/or Cash Management Enrollment Form, the signature card, a rate and fee schedule, Truth in Savings disclosures, Funds Availability Policy Disclosure, Electronic Funds Transfer Agreement and Disclosure, and any applicable Service Agreement and other instructions and the terms and conditions contained herein relating to specific Services that may be provided in connection herewith (collectively, this “Master Agreement”), sets forth the terms and conditions governing the provision of Internet Banking and, if applicable, cash management services to you or anyone authorized by you (collectively, “Customer,” “you,” “your,” “yours”) and describes your and our rights, responsibilities and obligations.  Unless otherwise indicated, the provisions of this Master Agreement apply to both business and consumer customers. The Internet Banking Enrollment Form is attached hereto as Exhibit “A” and is made an integral part of this Master Agreement.  If you are a consumer or an administrator for a business, by clicking the “I agree” button at the end of this Master Agreement, you are electronically signing this Master Agreement, which shall be considered the same as your authorized written signature constituting your binding agreement to all the terms, conditions, and notices contained or referenced in this Agreement.

Bank, in its sole discretion, may not permit Customer to use the Service until Bank has determined that Customer has accepted or executed the applicable documentation and otherwise provided appropriate information and specifications for the use of the Service, and until Bank has had a reasonable opportunity to review the Enrollment Form and activate the Service.  In any event, Customer agrees that the use by Customer of any Service shall, without any further action or execution or acceptance of any documentation on the part of Customer, constitute Customer’s acceptance of and agreement to Bank’s terms and conditions for the use of such Service as may be in effect as of the time of such usage, whether set forth in this Master Agreement, any applicable Service Agreement or otherwise prescribed by Bank.  In the event of a conflict between the terms of this Master Agreement and those of any Enrollment Form, or Service Agreement, the terms of the Enrollment Form, or Service Agreement, as applicable, shall govern and control with respect to the Service at issue.  In order to activate this Service, you must have at least one Account with us linked to the Service.

Therefore, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Bank, intending to be legally bound, do hereby agree as follows:

I.        Definitions.  The following terms and definitions apply when used in this Master Agreement.

 

“Account” or “Accounts” means one or more checking, savings, loan or money market account that you have with us. 

 

"Account Access" means your ability to access account and transaction information on Accounts and transfer funds between Accounts through the Internet.

 

"Account Agreement"  means the agreement between you and us that governs the use of your Account including the deposit account agreement, any funds availability agreement, electronic funds transfer agreement or disclosure, line of credit agreement, and our schedule of fees and charges.

 

"Bill Payment Account" means the Account(s) you have authorized us to debit for payment made to Payee(s) in connection with the Internet Banking Service.

 

"Bill Payment Service" means our service that allows you to pay or transfer funds to designated Payees based upon your instructions to us entered through Internet Banking.

 

Bill Payment” or “Payment” means the remittance of funds, initiated through Internet Banking, from a Bill Payment Account to a Payee.

 

Business Day(s)” means 9:00 a.m. to 5:00 p.m. Eastern time Monday through Friday.  Federal Holidays are not included. Some internet transaction deadlines may vary from this definition.

 

Enrollment Form” means the Online Internet Banking Enrollment Form.

 

“Deposit Account Agreement” has the meaning provided in Article  X.G.

 

Electronic” means electrical, digital, magnetic, wireless, optical or electromagnetic technology, or any other technology that entails similar capabilities.

 

ET” means Eastern Time, either Standard or Daylight, as applicable.

 

Funds transfer” or “Transfer” means a transfer of funds, initiated through the Internet Banking Service.

 

“Internet Banking” or “Service” means the service(s) described in this Agreement.

 

“Password” means the confidential identification number or other code assigned to you by us or selected by you for identification purposes in connection with the use of our Internet Banking Services.

 

“Payee” means any individual, financial institution, educational institution, company, merchant or other entity you wish to pay using Internet Banking Services.

 

PC” means personal computer (including any personal data assistant or other wireless access device) that meets the requirements for use of Internet Banking Services.

 

“Service Agreement” refers to a separate agreement for certain cash management services offered to business customers.

 

“Security Code” refers to a eight (8) digit passcode that is electronically sent to the customer either through SMS text, email or phone.

 

“Security Devices” refers to login ID, passwords or security codes.

 

Transfer Day” means Monday ‑ Friday, to 5:00 p.m., Eastern Time.  Holidays are not included.

 

Other definitions may be set forth elsewhere in this Master Agreement.

 

II.                  Setup and Use of Internet Access Services.                   

A               Eligibility.

 

        To have access to the Services you must be an authorized user of the Software you select, if required for use with the Equipment. You must also have at least one eligible account with us.  If you have more than one Account, you will have access through the Service to the Accounts that are currently under your Social Security Number/Tax ID.  Accounts that you may be an authorized signer but do not have your social security number, can be "linked" to your internet access. Accounts which are "linked" under the Services will have one common owner and signer. Any signer, acting alone, must be authorized to access a linked account. Any non-linked account will not be accessible through the Service.  You must designate a Login ID and Password which will be required to gain access to the Service.   Prior to your first use of Internet Banking, the Bank will send to you a Security Code that will be sent to you via the appropriated choice setup through your account, SMS text/email/phone,  and will be required to gain access to Internet Banking. 

 

        “Eligible Accounts” include the following:

 

        1.             Checking (Demand Deposit) Accounts

        2.             Savings Accounts

        3.             Money Market Accounts 

        4.             Loan/Line of Credit

B               Security Procedure.

The use of the Security Code, in addition to other authentication methods described below, is a security procedure established by Bank to authenticate the identity of the person attempting to gain access to the Service.  The security procedure is not designed for the detection of errors.  We may require you to change your Access Code upon each login to the service for security reasons. You should keep your Security Code in a secure location. Any person having access to your Security Codes will be able to access these Services and perform all transactions, including reviewing Account information and making Transfers to other Accounts and to other persons.  You are responsible for safeguarding the Security Codes.  Providing these Security Codes to another person effectively constitutes a grant of authority to access your accounts.

1.       You agree to comply with the “Security Procedures,” including any other Security Procedures that Bank directs you to use, either by written notice, by posting on Bank’s web site or other electronic means, or any other way the Bank deems appropriate, and you acknowledge and agree that such Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, security codes, certificate, layered security, or other element, means, or method of authentication or identification used in connection with a Security Procedure (“Security Devices”), constitute commercially reasonable security procedures under applicable law for the initiation of the Services you utilize, including without limitation, transfers and access to confidential information.    You authorize us to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until you have notified us, according to notification procedures prescribed by us, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. You agree that the initiation of a transaction or instructions using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction or instruction notwithstanding any particular designation by you of authorized persons or signature requirements identified on any signature card or other documents relating to this Master Agreement or your deposit account maintained with Bank, and you agree and intend that the submission of transactions and instructions using the Security Procedures shall be considered the same as your authorized written signature in authorizing us to execute such transaction or instruction.  You acknowledge and agree that you shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by you, to the fullest extent allowed by law.  You further acknowledge and agree that the Security Procedures are not designed to detect error in the transmission or content of communications or transaction initiated by you and that you bear the sole responsibility for detecting and preventing such error. 

2.       For Business Customers Only:  If you are a business, you agree to appoint and designate an administrator (the “Administrator”) who will be authorized and responsible for creating and maintaining subsequent User Ids, Passwords and security codes on your behalf, including assigning and revoking access privileges for persons to use the Service, (“User”) and providing new and subsequent Security Devises to those Users.  Bank will provide Customer’s designated Administrator, through electronic means as designated by the company (SMS text/email/phone), security codes to be used by the Administrator and by the User with respect

3.       to one or more of the Services. Customer understands that the Administrator has the capability of providing administrative privileges identical to that of the Administrator to any User, including the ability to create and maintain subsequent User accounts and assigning and revoking access privileges. If these privileges are granted by the Administrator to a User, that User will also be considered an Administrator. Customer will be required to use the Security Code each time it accesses the Services.

4.       Customer acknowledges that any Administrator shall have the ability to control security levels such as Service access and Service transaction limits, including without limitation the ability to assign dollar amount limits to transfers of funds. 

5.       You also agree that the Administrator or any User shall also have the authority on behalf of customer to electronically accept and approve any and all agreements and amendments to agreements by and between Bank and Customer, including but not limited to this Master Agreement. 

6.       You agree to keep all Security Procedures and Security Codes protected, secure, and strictly confidential and to provide or make available the same only to your authorized representative(s).  You agree not to disclose or provide any Security Procedures or Security Devices/Codes to any unauthorized person.  If you are a business, you also agree that Users shall not share Security Devices/Codes with each other.  Where you have the ability to ask the bank to change a Security Devices/Codes from time to time (e.g., a password or Login ID), you agree to change Security Devices frequently in order to ensure the security of the Security Device.  You agree to notify us immediately, according to notification procedures prescribed by us, if you believe that any Security Procedures or Security Device/Codes have been stolen, compromised, or otherwise become known to persons other than you or your authorized representative(s) or if you believe that any transaction or activity is unauthorized or in error.  In the event of any actual or threatened breach of security, we may issue you a new Security Device/Codes or establish new Security Procedures as soon as reasonably practicable, but we shall not be liable to you or any third party for any delay in taking such actions.  If you are a business, you agree to indemnify, defend all claims, and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, caused by your, your employees’, or agents’ failure to keep the Security Procedures or Security Device confidential and secure.

7.       You agree to notify us immediately, according to notification procedures prescribed by us, if the authority of any authorized representative(s) shall change or be revoked.  You shall change or delete all Security Devices of your authorized representative(s) whose authority to have the Security Devices has been revoked.

8.       We reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Devices/Codes, at any time and from time to time in our discretion.  We will endeavor to give you reasonable notice of any change in Security Procedures; provided that we may make any change in Security Procedures without advance notice to you if we, in our judgment and discretion, believe such change to be necessary or desirable to protect the security of our systems and assets.  Your implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute your agreement to the change and your agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.

C               Access.

 

Services are generally accessible 24 hours a day, seven days a week, except that the Services may be inaccessible for a reasonable period on a daily basis for system maintenance.  We are not liable under this Master Agreement or any applicable Service Agreement for failure to provide access due to a system failure or due to other unforeseen acts.  We may modify, suspend, or terminate access to the Services at any time and for any reason without notice or refund of fees you have paid.  The Bank may change the terms and conditions of this Master Agreement or any applicable Service Agreement from time to time to conform with changes or advancements in our services, or as required by law or regulation. All such changes will be made according to the procedures outlined in Article IX.  Use of Internet Banking after the effective date of such changes will constitute your consent to the changes.

D               Equipment Requirements.

In order to use the Services, you must first obtain your own personal computer with Internet connection capability and related equipment (the “Hardware”). You also must provide the type of Internet access required by the Hardware and or Software, which requires a web browser with 128-bit encryption.  Also recommended is an internet connection speed of 28.8 kbps or higher, Microsoft Internet Explorer® Version 9.0 or higher (for Windows), Mozilla Firefox® 28 or higher(for Windows) or Apple Safari® Version 536.25 or higher (for Mac OS)or Chrome 28 or higher.  Once the Hardware has been properly connected and any required Internet access has been established, you will be able to access the Services’ website. You are and will remain solely responsible for the purchase, hookup, installation, loading, operation and maintenance of the Hardware, Software, and the Internet access service to your PC, and for all related costs. You are solely responsible for virus protection and maintenance of your PC.  Bank shall have no responsibility for failures, interruption or other defects in the Services, which are occasioned by incompatible, improperly installed or improperly maintained hardware and software. The Bank may add to, modify, or replace software programs used in conjunction with providing the Services under this Master Agreement or any Service Agreement at its sole discretion and without notice, provided Services rendered to you are not substantially negatively affected or obligations altered. If you are a business, from time to time the Bank may deem it necessary to hold training or retraining classes for you. You agree that you will require appropriate personnel to participate in such training.

III.               Internet Banking Access Services.

A               Products and Services Offered.

 

1.                   Customer may use the Services to:

1.                   Make transfers between Accounts you may have with us.

2.             Make Payments to a Payee from your Account(s) (Bill Payment Service).

3.             Obtain Account balances. Your account balance is generally current as of the previous Business Day, but may not include current transactions (such as checks cashed at a teller on the Business Day). In addition, your account balance may show funds that have been credited to your account but are not yet available for withdrawal.

4.             Review recent transactions on your Accounts. 

5.             Transfer money to make loan payments.

6.             Communicate directly with Bank via the Internet Banking secure message center.

7.             Download account information in various formats.

8.             Issue stop payment orders.

9.             View check images.

10.          Order checks.

11.          *Originate ACH entries.

12.          *Make Wire Transfers.

13.          **Make External Transfers – transfer to and from accounts at other banks.

 

These activities are limited to the extent noted herein and in the agreements governing your various accounts with us. 

 

*You must execute the applicable Service Agreements to use these services.  These services are only offered to Business customers through the FMB Cash Management Services.

**You must execute the applicable Service Agreement to use these services.  This service is available to Consumer and Businees customers pending credit approval. (Business customer cannot have ACH capabilitiesthrought FMB Cash Management Services)

 

2.                   Additional Services.  Additional services may be included in an update to this Agreement or in other separate agreements to notify you of the existence of any new services available through Internet Banking.  Information about new services my be obtained from our website at www.fmb.net.  By using these services when they become available, you agree to be bound by the terms and conditions contained in this Master Agreement or separate agreements covering these services.

 

3.                   Restrictions: Limits.  In most cases you may use Internet Banking to gain access to deposit accounts in which you have an unrestricted right to withdraw funds. However, the Bank, as it may determine at any time and from time to time in its sole discretion, may deny Internet Banking account access, restrict Internet Banking account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account.

 

4.                    

 

Vendors.  You acknowledge and agree that the Service is provided by an independent third party service provider (“Vendor”) as selected by Bank, and that both the Vendor and the Service are subject to change from time to time without notice to you.  You further acknowledge, agree, and stipulate that the Vendor is an independent contractor providing

software and data transmission services and is not the agent of you or Bank.  Neither the Bank nor the Vendor is responsible for the actions or omissions of the other.

 

                 Consumer Disclosure Provisions.

 

THE FOLLOWING PROVISIONS OF THIS SECTION APPLY ONLY TO SERVICE AND ACCOUNTS ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES.

 

1.  Unauthorized Transactions.

 

To the extent a transaction is an “electronic fund transfer” under Federal Reserve Board Regulation E, tell us AT ONCE if you believe your Password has been lost or stolen, or if you believe that an Internet Banking transaction has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. Call the Customer Service Center at  1-866-923-5362.  You could lose all the money in your account. If you tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, you can lose no more than $50.00 if someone used your Access Code or made a transaction without your authorization.

 

If you do NOT tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, and we can prove we could have stopped someone from using your Security devices or the Service without your authorization if you had told us, you could lose as much as $500.00.  Also, if your statement shows a transaction that you did not make or authorize, tell us at once.  If you do not tell us within sixty (60) days after the statement was mailed, electronically transmitted, or otherwise made available 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 hospital stay) kept you from telling us, we will extend the time periods as may be reasonable under the circumstances.

 

2.  Bank’s Failure to Complete Transactions.

 

To the extent that a Service transaction is an “electronic fund transfer” under Federal Reserve Board Regulation E that relates to an Account established primarily for personal, family, or household purposes, if we do not properly complete a transfer to or from your Account on time or in the correct amount according to the terms of this Agreement, we will be liable for your losses or damages.  However, we will not be liable (and any payment guarantee provided elsewhere in this Agreement will not be applicable) if any of the following occurs:

 

1.       Through no fault of ours, you do not have sufficient collected funds in the Account to complete the transaction;

2.       Your PC, Internet service provider, telephone line, modem, or other equipment is not operating properly;

3.       The Service is not working properly and you were aware of the malfunction when you initiated the transaction;

4.       You do not properly follow the instructional materials provided in connection with Internet Banking;

5.       You do not authorize a Payment within a sufficient period of time for your Payment to be received by the payee by the due date;

6.       You have not provided us with the correct Payee name, address, account information, Payment amount, or other instructions necessary to complete the Payment, or the foregoing instructions stored on your PC’s hard drive or the host system have been lost;

7.       A Payee mishandles or delays the handling of Payments sent by us;

8.       Your funds are held or frozen, or a court order or other legal process prevents us from making a transaction;

9.       Your Security Devices have been reported lost or stolen;

10.    We have reason to believe that a transaction has not been properly authorized or authenticated, or is fraudulent, erroneous, or illegal;

11.    You have exceeded the limitations on frequency of transactions or dollar amount of transactions applicable to the Service or the Account;

12.    Your telephone service has been disconnected or there are deficiencies in the quality of your telephone line;

13.    Circumstances beyond our control (such as telecommunication or electrical outages and malfunctions, postal strikes or delays, computer system failures, or natural disasters) prevent the transaction;

14.    Making a transfer would cause us to violate any law, rule, or regulation to which we are subject; or

15.    Any failure on our part was not intentional and resulted from a bona fide error notwithstanding procedures to avoid such error, except for actual damages (which do not include indirect, incidental, special, or consequential damages).

 

There may be other exceptions to liability stated in this Agreement, or in other agreements we have with you, or otherwise provided by applicable law.

 

3.  Error Resolution.

 

In Case of Errors or Questions About Your Electronic Transfers, telephone us, write us at or E-mail us at the number or location provided in Article X, Section F as soon as you can if you think that your statement is wrong or you need more information about a transaction listed on your statement or appearing on the account activity screen of your PC, we must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared or you received notification of the problem or error on your PC.  You must:

 

1.       Tell us your name and the Account number.

2.       Describe the error or the transaction you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more 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 ten (10) Business Days. We will determine whether an error occurred within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) after we hear from you and will correct any error promptly.  If we require more time, however, we may take up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) to investigate your complaint or question.  If this additional time is necessary, and your written notification has been received by us, we will credit your account within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) 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 ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account), we will not credit your account and we will still have up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) for our investigation.

 

We will tell you the results within three (3) Business Days after completing our investigation.  If we decide that 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.

               

IV.                Additional Information about the Services.  

A               Account Access.

 

Transfers and Payments from your Account will be deducted on the date you instruct us to process them.  If the date you schedule a Transfer or Payment falls on a weekend or holiday, we will process your transaction the next Transfer Day.  We may refuse to act on your Transfer instructions or Payment request if sufficient funds, including funds available under any overdraft protection plan, are not available in your Account on the date you want us to make the Transfer or Payment. 

B               Processing Fund Transfers.

 

We can process a Transfer until  5:00 p.m. Eastern Time on a Transfer Day.   If you request a Transfer after the cutoff time, the Transfer will be processed the following Transfer Day.  If you schedule a Transfer for a future date, we will process the transaction after the close of business on that date, if that day is a Transfer Day.  Transfers are limited to a minimum of $0.01 and a maximum of $99,999.99 per transaction. 

 

You are fully obligated to us to provide sufficient funds for any payments or transfers you make or authorize to be made.  If we complete a payment or transfer that you make or authorize and we subsequently learn that you have insufficient funds for the transaction, you agree that we may reverse the transaction or offset the shortage with funds from any other deposit account(s) you or your Affiliates have with us to the extent permissible by the applicable law and the terms of any other relevant agreements.

 

If there are insufficient funds in your Account to make a Transfer or Payment, we may refuse to make the Transfer or Payment or we may make the Transfer or Payment and overdraw your Account.  In either event, you are responsible for any non‑sufficient funds (“NSF”) charges that may apply.

C               Canceling Transfers or Payments.

 

You may cancel a pending Transfer or Payment transaction.  However, to do so, we must receive your instruction to cancel prior to the cutoff time on the Transfer Day the transaction is scheduled to be processed.  If we don’t receive your instruction to cancel a transaction before that time, we may process the transaction.

D               Transfer(s) from Savings/Money Market Deposit Accounts.

 

Federal regulations require us to limit, either by contract or in practice, the number of certain types of transfers from savings and money market deposit accounts.  You are limited to six (6) preauthorized electronic fund transfers per calendar month. Each fund transfer through these Services from your savings or money market deposit account is counted as one of the six (6) transfers permitted each calendar month.  However, payments to your loan accounts with us are not counted toward this transfer limit for savings/money market deposit accounts.

E               E-Mails.

 

The Bank will not immediately receive e-mail that you send.  Therefore, you should not rely on e-mail if you need to communicate to the Bank immediately.  For example, if you need to stop payment on a check, to report a lost or stolen card, or to report an unauthorized transaction from one of your accounts, you should contact the Bank immediately by calling the Customer Service Center (see Article X, Section F).  The Bank will not take actions based on your e-mail requests until the Bank actually receives your message and has a reasonable opportunity to act.

F                Overdrafts: Order of Payments, Transfers, and Other Withdrawals.

 

If funds are withdrawn from any of your accounts by means of electronic funds transfers, other than through Internet Banking on the same business day as a Internet Banking transaction, and if the account contains insufficient funds to enable both the electronic funds transfer and the Internet Banking transfer to be made, then the electronic funds transfer will have priority and the Internet Banking transfer will be refused or will result in an overdraft on your account.  This is at the Bank’s sole discretion.

G               Bill Payment Service.      

 

You can arrange, at your option, for the payment of your current, future and recurring bills from your designated Bill Pay Account.  Farmers and Merchants Bank offers Billpay through FIS.  For Bill Payment Service, your Payee list may include utility

companies, merchants, financial institutions, insurance companies, individuals, etc. within the United States whom you wish to pay through Bill Payment Service. Please include the full name of the Payee and a complete mailing address and telephone number for each Payee, along with your account number with the Payee, the amount of the Payment, and whether the Payment is recurring. The Bank reserves the right to decline to make Payments to certain persons and entities. You agree that any Payment for taxes, Payments that are court-ordered, government payments and Payments outside of the United States are prohibited and you agree that you will not attempt to use the Service to make these types of Payments. On recurring Payments, it is the responsibility of the account owner or designated authorized users to update Payee account information such as address changes, account numbers, etc.  

 

Payments are posted against your ledger balance.

 

You may schedule Payments to be initiated on the current Business Day, on a future date, or on the same date of each month.  If you are scheduling a Payment for the current day it must be initiated prior to 4:00 p.m. Eastern Time.  Changes to previously scheduled Payments must be made before 4:00 p.m Eastern Time the Business Day before the day it is to be initiated. If the transaction shows an (IN PROCESS) status, then the Payment cannot be modified or deleted.  Although you can enter Payment information through the Service twenty-four (24) hours a day, seven (7) days a week, the Bank only initiates on Business Days. Funds must be available in your Account on the scheduled payment date.  After funds are withdrawn from your Account to make a Payment, we may make the Payment either by transferring funds electronically to the Payee or by mailing the Payee a check.  Funds will be deducted from your account on the same Business Day for Electronic Payments. Payments made by check will be deducted from your Account when the check clears your account. If you direct the initiation of a Payment to occur on a day other than a Business Day, it will be initiated on the following Business Day.  The Bill Payment Service will indicate whether a Payee is paid electronically or by check.

 

When you create a new Payee in the Bill Payment service, the new Payee is added to the Bill Payment service immediately.  You may schedule a Payment for a new Payee as soon as you complete the setup process subject to “days to allow for payment” described below.  At the time you create the new Payee, the Bill Payment Service will determine if the Payee can receive an electronic payment.  If the Payee can receive an Electronic Payment the Payee will be designated an “Electronic Payee.”  If the Payee cannot receive an Electronic Payment the Payee will be designated a “Check Payee”  You should schedule a Payment to a new Payee at least ten (10) Business Days before any Payment due date, to allow us time to set up the Payee and verify information about your account with the Payee.   Bank is not liable for any service fees or late charges levied against you due to postal delays or processing delays by the Payee. There is no limit on the number of Payees or number of Payments that may be authorized. The maximum per Payment and Minimum per payment is decided within your contract with FIS.  Electronic Payments are subject to the availability of sufficient funds in the designated checking account.  However, Bank reserves the right to impose limits at some future date, with proper written notice.  You acknowledge and agree that if you describe a Payee inconsistently by name and account number, scheduled Bill Payment transactions to the Payee will occur on the basis of the account number, even if it identifies a person other than the named Payee.

 

For all subsequent Payments, you agree to allow at least five (5) Business Days for electronic payments and at least seven (7) Business Days for check payments between the date you schedule a Payment to be initiated and the Payment due date (that is, the due date shown on your invoice or provided in your agreement with the payee, not taking into account any applicable grace period).  If you do not, you will be fully responsible for all late fees, finance charges or other actions taken by the Payee.  If you schedule your Payment and follow all instructions provided, and the Payment is not received by the Payee in a timely manner, a representative of Bank will work with the Payee on your behalf to have any late fees or charges reversed.

 

When you schedule a Bill Payment that will be made by check, you authorize us to issue a check drawn on your qualified designated checking account for the requested amount. If sufficient funds are not available in your designated account when the check is presented for payment, we may refuse to honor the check and return it unpaid.  At our sole discretion, we may elect to pay the check regardless of the insufficient funds.  In either event, your qualified designated account will be charged our then current fee for processing insufficient items, whether the check is paid or returned, as applicable. You are responsible for any loss or penalty that you may incur due to a lack of sufficient funds or other conditions that may prevent the withdrawal of funds from your account.

 

If Payment is to be made electronically and your Account does not have sufficient funds to make a Payment as of the date the transfer or Payment is attempted or scheduled to be made, the Transfer or Payment will be canceled and no further attempt will be made by Bank to make the Transfer or Payment.  Bank shall have no obligation or liability if it does not complete a Transfer or Payment because there are insufficient funds in your account to process a transaction.  In all cases, you are responsible for either making alternate arrangements for the Payment or rescheduling the Payment through the Service.  In the case of recurring Payments, only the Payment currently scheduled will be canceled.  Recurring Payments schedule for future dates will not be affected.

 

Recurring Payments and Transfers are those made for the same amount, on the same date, on a weekly, bi-monthly, monthly basis, etc. Once started, recurring Payments and Transfers will be made automatically until you delete the Payment or Transfer or upon expiration. If the Payment is not a recurring Payment, it will be a “one-time Payment.”  One-time Payments do not recur and are not made until you enter the Payee and amount of the current bill and submit the Payment.  A recurring Bill Payment Service transaction that you want deleted must be deleted or the next Payment date changed three (3) Business Day before the current transaction date.

 

A stop payment cannot be placed on an Electronic Bill Payment transaction once issued. However, a stop payment can be placed on a Bill Payment transaction by Bill Payment check any time prior to such check being presented for final payment subject to the completion of a Stop Payment Request and subject to the requirements of such Stop Payment Request, which are herein incorporated by reference.  

 

There is no fee for deleting a Payment initiated through Bill Payment; however a fee will apply for a stop on a Bill Payment check.

 

In the event a Payment is returned to us for any reason, you authorize us, in our sole and absolute discretion, to either research and correct the Payment information or to void the Payment and re-credit your Account.

 

In order for the Bill Payment Service to remain in active status, you must pay a bill at least once every two (2) months.

 

H              Stop Payment Orders.  Unless otherwise specified in any applicable Service Agreement or Operating Instructions, any stop payment order which Company wishes to place on a check drawn on an account that is the subject of this Service or is otherwise related to this Service shall be placed in accordance with the Bank's normal stop payment procedures and provisions for other accounts in effect at that time.  Company acknowledges that Stop Payment Request (definedhereinbelow) may not be placed on any items other than checks issued by Company.  Any Stop Payment Request for ACH debits or paper drafts must be placed at a Bank branch office location. If Company has elected to issue stop payment orders via Online Business Services, the following provisions shall apply:

1.                   You have requested us to provide Stop Payment Services under Online Business Services to enable you to electronically issue stop payment entries (“Stop Payment Request”). You hereby agree to use the Stop Payment Services according to the instructions set forth in this Section 4.8.

2.                   You may only submit Stop Payment Requests for checks that have not yet posted to the Account. Thus, prior to submitting Stop Payment Requests, you must first verify that the checks have not posted to the Account.

3.                   You understand and agree that Stop Payment Requests will not take effect unless you provide all the information requested by the Stop Payment screens and provide such information exactly as it appears on the check, including, but not limited to, the account number, check number, amount, payee and date. You acknowledge that the computer programs used to provide the Stop Payment Services require exact information regarding the check and even minor errors in providing the exact information requested may prevent payment from being stopped.  For example, if you give us the wrong amount of the check and the information is only wrong by one cent (.01) or if the check number you provide is only wrong by one digit, we will not be able to stop payment on the check.  You agree that Bank is not liable to you for payment of any check over a Stop Payment Request if you do not provide the exact information regarding the check.

4.                   Stop Payment Requests that we receive prior to 1:00 p.m. Mountain Time on a particular Business Day, will be effective on that Business Day. Conversely, Stop Payment Requests that we receive after that cut-off time will take effect on the next Business Day. The Business Day on which the Stop Payment Request takes effect is referred as the “Stop Payment Effective Date.” We shall not be liable to you for items otherwise properly payable that we pay prior to the Stop Payment Effective Date of your Stop Payment Request or any loss arising out of such payment.

5.                   The Stop Payment Request will be effective for six months, from and including the Stop Payment Effective Date. You may renew or otherwise continue the effectiveness of a Stop Payment Request by making a new Stop Payment Request via Online Business Services at least one Business Day prior to the expiration of the existing Stop Payment Request. You acknowledge that we are not obligated to stop payment on a check after the expiration of a Stop Payment Request. However, you agree that we may stop payment according to an expired Stop Payment Request without incurring any liability to you. You further understand and agree that you, and not us, have the obligation to monitor your Stop Payment Requests and that we will not provide you with any notice of the expiration dates of any Stop Payment Request and/or the need to renew any such requests.

6.                   You understand and agree that we will accept a Stop Payment Request and use reasonable procedures to locate and stop payment on the check. However, in consideration of our acceptance of the Stop Payment Request, you expressly agree to hold us harmless from any direct or indirect damages if we pay the check (i) on the day we receive the Stop Payment Request, or (ii) by reason of oversight or inadvertence. Furthermore, you hereby agree that we will not be liable to you for any direct or indirect damages if other checks drawn by you are returned NSF because we pay the check under the circumstances noted in (i) or ii) herein. You further agree to indemnify us against all expenses and costs that might incur by reason of stopping payment on a check pursuant to a Stop Payment Request, whether it expired or not.

7.                   You hereby authorize us to automatically charge the Account against which the check was drawn for applicable Stop Payment fees for each Stop Payment Request and renewal thereof.

 

V.                  Limitations.  Your use of these Services is subject to the following limitations:

A               Dollar Amount. 

 

There may be a limit on the dollar amount of the transactions you can make using these Services. Security reasons limit the dollar amount of transactions and these limits are subject to change from time to time.  Payment can only be made with U.S. currency.

B               Frequency. 

 

In addition to the Federal banking regulations that restrict the number of transfers and withdrawals, there may be limits on the number of transactions you can make using these Services. These limits are for security reasons and are subject to change.

C               Foreign transactions.

 

No Payments may be made to Payees outside the United States.

 

Additional limitations may be contained in this Master Agreement or the applicable Service Agreement. Your ability to initiate transactions may also be limited by the terms of other agreements you have with the Bank or by applicable law.  All balances shown through the Bill pay service are limited to a 24 hour discretionary period due to third party updates.

 

VI.                Parties’ Responsibilities.

A               Your Responsibility. 

 

1.       Physical and Electronic Security.

 

 

a.  You are solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in your possession or under your control.  We are not responsible for any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” and/or “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an internet system. Any material downloaded or otherwise obtained is obtained at your own discretion and risk, and Bank is not responsible for any damage to your computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise.  You are solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to your operating systems, and for protecting, securing, and backing up any data and information stored in or on your operating systems.   Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on your operating systems.

        b.  You acknowledge and agree that it is your responsibility to protect yourself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” or “pharming”).  If you are a business, you agree to educate your representative(s), agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. You acknowledge that Bank will never contact you by e-mail in order to ask for or to verify Account numbers, Security Devices, or any sensitive or confidential information, and will never provide links to websites in e-mails that Bank transmits to you.  In the event you receive an e-mail or other electronic communication that you believe, or has reason to believe, is fraudulent, you agree that you shall not respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail.  To the extent allowed by law, you agree that Bank is not responsible for any losses, injuries, or harm incurred by you as a result of any electronic, e-mail, or internet fraud.

        c.  In the event of a breach of the Security Procedure, you agree to assist Bank in determining the manner and source of the breach.  Such assistance shall include, but shall not be limited to, providing Bank or Bank’s agent access to your hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure.  You further agree to provide to Bank any analysis of such equipment, device, or software or any report of such analysis performed by you, your agents, law enforcement agencies, or any other third party.  Your failure to assist Bank shall be an admission by you that the breach of the Security Procedure was caused by a person who obtained access to your transmitting facilities or who obtained information facilitating the breach of the Security Procedure from you and not from a source controlled by Bank.

 

2.       Reporting Unauthorized Transactions.

 

You should notify us immediately if you believe your Login ID or Password have been lost or stolen, that someone has gained access to the Security Procedure, or that someone has transferred or may transfer money from your Account without your permission or if you suspect any fraudulent activity on your Account.  To notify us, call us at the number provided in Article X Section F between 8:15 a.m. and 5:00 p.m during a Business Day.  If you are a consumer, you should refer to Article 01 for additional information regarding unauthorized transactions.

 

3.       Duty to Inspect

 

You shall inspect all transaction history, reports, journals, and other material evidencing the output of the Service(s) performed by Bank.  You must report all errors to the Bank for Services performed and indicated in the transaction history, reports, journals, and other material evidencing the output of the Service(s) or otherwise reported to you daily by the close of business on the banking day following the day on which the Service(s) is rendered. You must report all other errors within a reasonable time.  If your service and accounts are established primarily for personal, family, or household purposes, the time period for reporting is not to exceed thirty (30) days from the date that the error is made. If you are a business, the time period for reporting is not to exceed sixty (60) days from the date that the error is made. Failure of you to promptly report errors within such specified time shall preclude you from asserting against the Bank any claims arising from the error or any loss caused by the error.  

 

4.       Financial Information

 

Bank may from time to time request information from you in order to evaluate a continuation of the Service(s) to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement.  You agree to provide the requested financial information immediately upon request by Bank, in the form required by Bank.  If you refuse to provide the requested financial information, or if Bank concludes in its sole discretion that the credit risk of you is unacceptable, Bank may terminate the Service according to the provisions hereof.  You authorize Bank to investigate or reinvestigate at any time any information provided by you in connection with this Master Agreement or any Services and to request reports from credit bureaus and reporting agencies for such purpose.

 

5.       Deadlines

 

You shall deliver or transmit all data or information to Bank by the deadline(s) specified in this Master Agreement or, for business customers, any applicable Service Agreement and the Operating Instructions. Bank shall have no obligation to process data or perform the Service if the data is not received by the Bank by the specified deadline.

 

6.       Payment for Services

 

You agree to pay Bank the fees established by Bank for rendering the Services under the terms of this Master Agreement or any applicable Service Agreement.  Depending on which Internet Banking services you subscribe to, you will be charged the applicable Internet Banking fees as set forth in our Rate and Fee Schedule hereby incorporated by reference and made a part hereof.  Once you have subscribed, you will be charged the applicable Monthly Fee(s) whether or not you use Internet Banking.

 

The Bank may change or add any fees for Internet Banking by the procedures outlined in Article IX for amending this Master Agreement.  Fees charged for Internet Banking under this Master Agreement are in addition to any service charges or fees that apply to your accounts with us.

 

You authorize the Bank to deduct all applicable Monthly Fees from any Account listed on the Enrollment Form.  If you close the Account(s) associated with the Service, Fees may be deducted from any other account you  maintain with us or any of our affiliates.  Furthermore, Bank may setoff against any amount it owes to you in order to obtain payment of your obligations under this Agreement. 

 

In addition to the Service fees, you agree to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, this Master Agreement and applicable Service Agreement, and/or the software or equipment made available to you (excluding any income tax payable by Bank).  You are also responsible for the costs of any communication lines and any data processing charges payable to third parties.

 

7.       Additional Provisions for Business Customers.

 

THE FOLLOWING PROVISIONS OF THIS SECTION APPLY ONLY TO SERVICE AND ACCOUNTS ESTABLISHED PRIMARILY FOR BUSINESS PURPOSES.

 

a.  Required Deposit Balance.  You agree to maintain the minimum collected balance ("Required Deposit Balance") in the amount and in the account specified in the Service Agreement establishing the terms and conditions of the specific Services selected by you and the set of detailed instructions ("Operating Instructions") establishing the procedures and operating instructions governing the Service.

 

b.  Data and Information Supplied by You.  You shall transmit or deliver data and other information in the format and on the media as provided for in the Service Agreement and the Operating Instructions if applicable or as otherwise required by the Bank in conjunction with rendering the Service(s) selected by you.  You shall have the sole responsibility of ensuring the

 

accuracy and correctness of the data transmitted.  You acknowledge and agree that Bank shall not examine the data for correctness and the Bank shall not have any responsibility for detecting errors in the data transmitted by you. The data transmitted by you must be legible, correct and complete.  Bank shall not process, and Bank shall not be liable to you for failure to process, the data if it is not in the format specified by Bank or if the data is incomplete. Bank shall not be liable for errors or omissions caused by data that is rejected as the result of your failure to provide the data in accordance with the standards specified in the Master Agreement or any applicable Service Agreement and the Operating Instructions.

 

c.  Remotely Created Checks.  If you use a Service wherein you create or deposit a Remotely Created Check, as that term is defined in Federal Reserve Board Regulation CC, you warrant to Bank that the person on whose account the Remotely Created Check is drawn authorized the issuance of the check in the amount stated on the check and to the payee stated on the check.

 

d.  Use of Services.  You will use the Services only for your own internal business use in accordance with the terms of this Master Agreement.  Without limiting the generality of the foregoing, you agree not to make the Services available or allow use of the Services in a computer bureau service business, timesharing, or otherwise disclose or allow use of the Service by or for the benefit of any third party.  FURTHER, YOU REPRESENT AND WARRANT THAT NONE OF THE ACCOUNTS HAVE BEEN ESTABLISHED OR ARE BEING OR WILL BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES AND THAT YOU ARE NOT A "CONSUMER" UNDER REGULATION E – ELECTRONIC FUNDS TRANSFER ACT (HEREIN, "REG. E").

 

e.  Prohibited Transactions.  You agree not to use or attempt to use the Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation, (b) to breach any contract or agreement by which you are bound, or (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, (d) to engage in any activity or business that would result in you being or becoming a “money service business” as defined in the Bank Secrecy Act and its implementing regulations, or (e) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement.  You acknowledge and agree that Bank has no obligation to monitor your use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement.

B               The Bank’s Responsibilities.            

 

Bank agrees to use ordinary care in rendering Services under this Master Agreement and any applicable Service Agreement.  You recognize and agree that ordinary care does not mean error free.  You agree to pay all attorneys’ fees, costs and expenses Bank may incur in collecting any sums you owe to Bank for overdrafts, service charges or otherwise or in enforcing any rights Bank may have under the terms of this Master Agreement and any applicable Service Agreement or applicable law, rule or regulation applicable to your account(s) or the Services rendered by Bank under this Master Agreement and any applicable Service Agreement.  You also agree to pay all attorneys’ fees, costs and expenses that Bank may incur as the result of defending any claim or action made against Bank by you, or on your behalf where Bank is found not to be liable for such claim.  In no event shall Bank be liable to you for attorneys’ fees incurred by you in any action brought by you against Bank.

 

Our sole responsibility for an error in a transfer will be to correct the error.  Without limiting the generality of the forgoing, we will not be responsible for the following matters, or for errors or failures of our Services as result of:

 

1.     Access

 

        We will not be liable under this Master Agreement or any applicable Service Agreement for failure to provide access or for interruptions in access to our Services due to a system failure or due to other unforeseen acts or circumstances.

2.     Your Computer Equipment & Your Software

        We will not be responsible for any errors or failures from any malfunction of your computer or any computer virus or other problems related to your computer equipment used with our Services.

 

        We are not responsible for any error, damages or other loss you may suffer due to malfunction or misapplication of any system you use, including your browser (Mozilla Firefox®, Microsoft Internet Explorer®, or otherwise), your Internet service provider, your personal financial management or other software (such as Quicken® or Microsoft Money®), or any equipment you may use (including your telecommunications facilities, computer hardware and modem) to access or communicate with the Internet Banking Services.

 

3.     Any Transaction or instruction. (a) exceeds your collected and available funds on deposit with the Bank; (b) is not in accordance with any condition indicated by you and agreed to by the Bank; (c) the Bank has reason to believe may not be authorized by you; (d) involves funds subject to hold, dispute, or legal process preventing their withdrawal; (e) would violate any provision of any present or future risk control program of the Federal Reserve or any current or future rule or regulation of any other federal or state regulatory authority; (f) is not in accordance with any other requirement stated in this Master Agreement and any applicable Service Agreement or any Bank policy, procedure or practice; or, (g) for the protection of the Bank or you, the Bank has reasonable cause not to honor.

 

VII.             Privacy and Confidentiality.

A               Privacy Policy.

 

The importance of maintaining the confidentiality and privacy of the information provided by you is one of our highest priorities.  We may disclose information about your Accounts or the Transfers you make: (a) where it is necessary for completing the transfers or processing or maintaining your Accounts; (b) in order to verify the existence or condition of your Accounts for a third party such as a credit bureau or merchant; (c) in order to comply with legal process, government agency or court orders; (d) to companies that perform marketing services on our behalf or to other financial institutions with whom we have joint marketing agreements; or (e) otherwise as permitted by law.  An explanation of our privacy policy will be provided to you separately in the manner required by applicable law.  Please review it carefully.  Our privacy policy may change from time to time and is always available on our website and at our banking locations.

B               Confidential Information.

 

All information of a business nature relating to the assets, liabilities or other business affairs disclosed to the Bank by you and your customers in connection with this Agreement is confidential.  Bank shall not, without the express written consent of you, disclose or permit access to any such information by any person, firm or corporation and Bank shall cause its officers, employees, and agents to take such action as shall be necessary or advisable, to preserve and protect the confidentiality of disclosing such information to persons required to have access thereto for the performance of this Agreement, or to any other party to which the Bank may be required by law to report such information.  You agree to hold confidential and to use only in connection with the Service provided under this Agreement all information furnished to you by Bank or by third parties from whom Bank has secured the right to use the Service, including, but not limited to, Bank's product and service pricing structure, system design, programming techniques or other unique techniques.  In addition, should you at any time receive or acquire any information relating to another customer of the Bank, you shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for your own benefit.  Bank and your obligations and agreements under this paragraph shall not apply to any information supplied that was known to either party prior to the disclosure by the other, or is or becomes generally available to the public other than by breach of this Agreement, or otherwise becomes lawfully available on a non-confidential basis from a third party who is not under an obligation of confidence to either party.  Notwithstanding anything to the contrary contained herein, it is authorized and agreed by the parties hereto that the performance of said Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Board of Directors of the Federal Deposit Insurance Corporation, and/or a State regulatory agency and you agree to the release of the your reports, information, assurances, or other data as may be required by them under applicable laws and regulations.  You agree that any specifications or programs developed by the Bank in connection with this Agreement or supplied or made available to you by Bank are the exclusive property of Bank, its agents, suppliers, or contractors, and further agrees that such material shall not be copied or used in any manner or for any purpose without the express written consent of Bank.  This clause shall survive the termination of the Agreement.  

 

VIII.           Termination.

 

Either you or the Bank may terminate this Master Agreement, any applicable Service Agreement, and your Internet Banking subscription at any time upon giving at least ten (10) days prior written notice of the termination to the other party.  If you terminate Internet Banking, you authorize the Bank to continue making transfers you have previously authorized and continue to charge monthly fees until such time as the Bank has had a reasonable opportunity to act upon your termination notice.  Once the Bank has acted upon your termination notice, the Bank will make no further transfers from your accounts, including any transfers you have previously authorized.  If the Bank terminates your use of Internet Banking, the Bank reserves the right to make no further transfers from your accounts, including any transactions you have previously authorized.

 

Notwithstanding the foregoing, Bank may immediately terminate this Master Agreement and/or any applicable Service Agreement without notice if, (a) you or we close your Accounts(s), or (b) in Bank’s sole discretion, Bank determines that you have abused the Internet Banking Service or Bank believes that it will suffer a loss or other damage if the Master Agreement and/or applicable Service Agreement is not terminated. 

 

Bank’s election to terminate this Master Agreement and/or any applicable Service Agreement is in addition to any and all other remedies that may be available to Bank and will not affect any obligations you may have to Bank.  Any reinstatement of the Service under this Master Agreement and/or any applicable Service Agreement will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank.

 

Upon termination of this Master Agreement and/or any applicable Service Agreement, any property or rights of a party in the possession of the other party, tangible or intangible, shall be returned to owner thereof within thirty (30) days after the later to occur of (i) termination of the Master Agreement and/or any applicable Service Agreement or (ii) the last date that such party receives any such property or rights.

 

Upon termination of this Master Agreement and/or any applicable Service Agreement, (i) you will promptly pay to Bank all sums due or to become due under this Master Agreement and/or applicable Service Agreement, and (ii) you shall have no further right to make use of the Service or any system or software which may have been provided in connection with the Service.

 

IX.                Changes in Terms and other Amendments.

A               Personal Accounts and Services.

 

Where the EFTA and REG E apply, the Bank may amend this Agreement at any time by sending notice to you by mail or, to the extent permitted by law, by e-mail or electronic communication through Internet Banking, at least 21 days before the effective date of the amendment.  Where the EFTA and REG E apply, notice is always required if the change would result in:

 

1.       Increased fees for you;

2.       Increased liability for you;

3.       Fewer types of available electronic fund transfers; or

4.       Stricter limitations on the frequency of dollar amount of transfers.

 

If the EFTA and REG E apply, we are not required to give notice if an immediate change in terms or conditions is necessary to maintain or restore the security of an account or an electronic fund transfer system.  However, if such a change is permanent, and

 

disclosure would not jeopardize security, we will notify you in writing on or with the next regularly scheduled periodic statement or within 30 days of making the change permanent.  Such notices will also be published on the Bank’s web site.

 

If the EFTA and REG E do not apply to a particular transaction, and other state or federal laws do not specify any notice or other requirements for an amendment, we will decide what kind of notice (if any) we will give you and the method of providing any such notice.

 

Your continued use of Internet Banking is your agreement to any amendments of the Agreement, including the Instructions as may be amended from time to time.

 

B               Business Accounts and Services.

 

The Bank may amend the terms of this Master Agreement and any applicable Service Agreement alter, change, or modify the Services provided under the terms of this Master Agreement and any applicable Service Agreement (including the fees and charges for Services listed) or any supplemental agreement at any time in its sole discretion by giving written notice to you. If required by agreement or by applicable law, notice will be given for the required applicable number of days in advance of such amendments by mailing a copy of the amendment to you at your most recent address shown on our records or, if you have previously agreed, by providing a notice delivered to the last email address you have provided us. Your continued use of the Services shall constitute your agreement to such amendment. No amendments requested by you shall be effective unless received in writing by Bank and agreed to by the Bank in writing.

 

X.                  Other Provisions.

A               Electronic Notices.

 

We may deliver to you any required disclosures and other notices concerning these Services or your Accounts by e‑mail or other appropriate electronic means in accordance with Bank’s Electronic Statement Delivery Authorization and Agreement. 

 

You may use e‑mail to contact us about inquiries, maintenance and/or some problem resolution issues.  E‑mail may not be a secure method of communication.  Thus we recommend you do not send confidential personal or financial information by e‑mail.  There may be times when you need to speak with someone immediately (especially to report a lost or stolen Password, or to stop a payment).  In these cases, do not use e‑mail.  Instead, you should call us at the number provided in Article X Section F.

B               Hours of Operation.

 

Our representatives are available to assist you from the hours of 8:15 a.m. to 5:00 p.m. ET Monday through Friday, except holidays, by calling the number provided in Article X Section F.

C               Ownership of Website.

 

The content, information and offers on our website are copyrighted by Bank and/or Vendor and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited.  You agree not to copy, display, distribute, download, license, sub-license, modify, publish, repost, reproduce, reuse, sell, transmit, create a derivative work from or otherwise use for public or commercial purposes, the information and materials on the Sites, except as provided in this Master Agreement, without our express written permission.  Unless otherwise noted, all other trademarks, service marks, and logos used on the Bank’s sites are the trademarks, service marks or logos of Bank, or others as indicated.

D               Web-linking Practices

 

Bank may provide access to information, products or services offered on other third party web sites.  The Bank is not responsible for, nor does control, the content, products, or serviced provided by linked sites.  The Bank does not endorse or guarantee the products, information or recommendations provided by linked sites, and is not liable for any failure of products or services advertised on those sites.  In addition, each third party site may provide less security than the Bank and have a privacy policy different than that of the Bank.  Your access, use and reliance upon such content, products or services is at your own risk. 

E               Geographic Restrictions.

 

The Services described in this Master Agreement and any application for credit, deposit services, and brokerage services available at our web site are solely offered to citizens and residents of the United States of America residing within the United States of America.  Citizens and residents may not be able to access these Services outside the United States of America.

F                Contact Information.

 

In case of questions about your electronic transactions contact customer service at:

               

                                Farmers and Merchants Bank

                                Attn: Operations Service Center

                                4 N. Carter Street

                                P. O. Box 187

                                Lakeland, GA 31635

                                Phone: 1-866-923-5362 or

                                Fax us at : (229)482-2730

                                               

G               Deposit Account Agreement. 

 

        You acknowledge and agree that your demand deposit account maintained with Bank is an integral part of the Services offered by Bank and that all transactions and Services initiated or processed pursuant to this Master Agreement are subject to the terms and conditions of the rules, regulations and agreement ("Deposit Account Agreement") governing accounts in effect from time to time between you and Bank. The Deposit Account Agreement is expressly incorporated herein by reference. The terms and conditions of this Master Agreement shall control over any inconsistent terms and conditions of the Deposit Account Agreement.  You acknowledge that you have signed and executed all agreements, resolutions, signature cards and forms governing your demand deposit account required by Bank. If you have not signed the foregoing forms required by Bank, by signing this Master Agreement, you acknowledge that you have read the contents of and agree to be bound by the terms of those forms, agreements and documents, and adopt and ratify, as an authorized signatory(s), the signature(s) of any person(s) who has signed a signature card or any check on your account. You also agree to establish all accounts that must be opened in conjunction with the Service provided by Bank.

H              Effective Dates.

 

The effective date of this Master Agreement and any applicable Service Agreement shall be the date upon which the Agreement is executed by you and accepted by Bank.  

I                 Internet Disclaimer. 

 

For any Service(s) described in the Master Agreement utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank's network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt your connections to the

Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, your ability to connect to the Internet, or Bank's ability to connect to the Internet on your behalf.

J                 Limitation of Liability.

1.     YOU AGREE THAT BANK SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF THE USE BY YOU OF ANY SERVICE EVEN IF YOU, BANK OR BANK’S SERVICE PROVIDER HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

2.     TO THE FULLEST EXTENT ALLOWED BY LAW, BANK’S LIABILITY TO YOU UNDER THIS MASTER AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM BANK’S FAILURE TO EXERCISE ORDINARY CARE OR TO ACT IN GOOD FAITH.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOUR USE OF THE SERVICE IS NOT PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, AND/OR IF YOUR APPLICABLE ACCOUNT(S) IS (ARE) NOT ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES, IN NO EVENT WILL BANK BE LIABLE TO YOU FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU AND RECEIVED BY BANK DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WHICH SHALL BE DETERMINED BY THE EARLIER OF THE DATE WHEN YOU FIRST BECAME AWARE OF THE CLAIM OR THE DATE WHEN, THROUGH THE EXERCISE OF REASONABLE CARE, YOU REASONABLY SHOULD HAVE BECOME AWARE OF THE CLAIM.

 

3.     YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY BANK ON AN “AS IS” BASIS. 

 

4.     EXCEPT AS EXPRESSLY SET FORTH IN THIS MASTER AGREEMENT, BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO YOU OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY.  YOU AGREE THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS MASTER AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO. 

               

5.     BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU AS TO ANY COMPUTER HARDWARE, SOFTWARE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, YOUR COMPUTER SYSTEMS OR RELATED EQUIPMENT, YOUR SOFTWARE, OR YOUR INTERNET SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT YOU USE, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING (BUT NOT LIMITED TO) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

6.     BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF YOUR COMPUTER HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY COMPUTER SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO YOU IN CONNECTION WITH THIS MASTER AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM YOU TO BANK OR FROM BANK TO YOU.  BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING YOU OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF YOUR COMPUTER HARDWARE OR SOFTWARE.

7.     Compliance With Laws, Rules, and Regulations.  You agree to comply with all existing and future instructions used by the Bank for processing of transactions.  You further agree to comply with and be bound by all applicable state or federal laws, rules and regulations affecting the use of checks, drafts, fund transfers, and ACH transactions, including but not limited to, rules and procedural guidelines established by the Federal Trade Commission (FTC), the Board of Governors of the Federal Reserve, the National Automated Clearing House Association (NACHA) and any other clearinghouse or other organization  in which Bank is a member or to which rules Bank has agreed to be bound.  These laws, procedures, rules, regulations, and definitions shall be incorporated herein by reference. 

8.       Relationship of Parties.  You and Bank acknowledge and agree that the relationship of Bank and you is that of an independent contractor and that this Master Agreement does not establish or create a general agency, joint venture, partnership, or employment relationship between them.

K               Force Majeure. 

 

The Bank shall not be responsible for any liability, loss, or damage resulting from Bank's failure to perform any Service or to perform any other obligations under this Master Agreement and any applicable Service Agreement which is caused by an act of God, fire, floods, adverse weather or atmospheric conditions or other catastrophes; war, sabotage, riots, acts of public enemy, or acts of governmental authority or the Board of Governors of the Federal Reserve; labor difficulties; equipment or computer failure or destruction or the unavailability, interruption, or malfunction of communications facilities or utilities; delays or failure to act by you or third parties and their personnel; criminal acts; or generally any cause reasonably beyond the Bank's control.

L               Reimbursement.

 

Any reimbursement by Bank for any liability hereunder may be made either directly to you or by adjustment of the aggregate ledger and collected balances of your accounts.

M             Indemnification. 

 

In addition to other indemnification and liability provisions elsewhere in this Master Agreement and any applicable Service Agreement, to the fullest extent allowed by law, if your use of the Service is not primarily for personal, family, or household purposes, and/or if your applicable Account(s) is (are) not established primarily for personal, family or household purposes, you will be liable for, hold harmless, and will indemnify Bank, and their employees and agents from and against all claims of any sort by third parties or others arising out of this Master Agreement and any applicable Service Agreement, including all losses and expenses incurred by Bank arising out of your failure to report required changes, transmission of incorrect data to Bank, or failure to maintain compliance with all laws, regulations and rules.  Except for those losses caused directly by Bank’s failure to exercise ordinary care or to act in good faith, you agree to indemnify and hold Bank, its officers, directors, shareholders, agents, employees, and affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all losses, costs, suits, damages, claims, liabilities and expenses (including reasonable attorneys’ fees) arising from or related in any way to (i) any Services performed in connection with this Agreement, (ii) Bank’s action or inaction in accordance with or reliance upon any instructions or information received from any person reasonably believed by Bank to be an authorized representative of you or Authorized User, (iii) your breach of any of your covenants, agreements, responsibilities, representations or warranties under this Master Agreement and any applicable Service Agreement, and/or (iv) your breach of applicable laws, rules or regulations.

N               ARBITRATION AND WAIVER OF JURY TRIAL.

 

YOU AND BANK AGREE THAT THE TRANSACTIONS PROCESSED UNDER THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT INVOLVES “COMMERCE” UNDER THE FEDERAL ARBITRATION ACT (“FAA”).  ANY CONTROVERSY OR CLAIM BETWEEN YOU AND BANK, OR BETWEEN YOU AND ANY OF BANK’S OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO ANY SERVICE PROVIDED UNDER THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY “CLAIM”), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA.  THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES (“THE ARBITRATION RULES”).  IF A CLAIM IS SUBMITTED TO ARBITRATION, (A) YOU WILL NOT HAVE THE RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL; (B) YOU WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE ARBITRATION RULES; (C) YOU WILL NOT HAVE THE RIGHT TO HAVE ANY CLAIM ARBITRATED AS A CLASS ACTION UNDER THE ARBITRATION RULES OR UNDER ANY OTHER RULES OF CIVIL PROCEDURE; (D) THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING WITH LIMITED RIGHTS TO APPEAL; AND (E) THIS MASTER AGREEMENT SUPERSEDES ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN YOU AND BANK.  THIS MASTER AGREEMENT TO ARBITRATE DISPUTES WILL SURVIVE THE CLOSING OF YOUR ACCOUNT AND THE TERMINATION OF THIS MASTER AGREEMENT OR ANY SERVICE AGREEMENT.

O               Governing Law.  

 

These terms and conditions of this Master Agreement and any applicable Service Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict of law provisions and without regard to your state of residence.

P                Enforcement.

 

In the event a dispute arises either directly or indirectly, under this Master Agreement, the venue for any and all litigation resulting therefrom shall be in a court of appropriate jurisdiction in the State of Georgia.  The prevailing party in any such action shall be entitled, subject to applicable law, to payment by the other party of its reasonable attorney’s fees (which may be or include the allocable cost of in-house counsel) and costs, including fees for any litigation, arbitration, mediation, appeal, or bankruptcy proceedings, and any post-judgment collection actions, if applicable. 

Q               Miscellaneous Provisions.

1.     Headings.  The headings and captions contained in this Master Agreement and any applicable Service Agreement are included only for convenience of reference and do not define, limit, explain, or modify this Master Agreement and any applicable Service Agreement or its interpretation, construction, or meaning.

 

2.     Severability.  The holding of any provision of this Master Agreement and any applicable Service Agreement as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of this Master Agreement and any applicable Service Agreement, which shall remain in full force and effect.

 

3.     Waiver.  No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of you under this Master Agreement and any applicable Service Agreement shall bind the Bank to waive the same term, condition, or obligation again,

nor shall any other provision, condition, term, or obligation hereof be affected by such a waiver.

 

4.     Binding Effect.  This Master Agreement and any applicable Service Agreement shall inure to the benefit of and be binding upon the successors, heirs, trustees, and permitted assigns of the parties hereto.

 

5.     Entire Agreement.  This Master Agreement and any applicable Service Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof.  All contemporaneous agreements or understandings concerning the subject matter hereof, whether oral or written, are merged into this Master Agreement.

 

6.     Transfers and Assignments.  You cannot transfer or assign any rights or obligations under this Master Agreement and any applicable Service Agreement without Bank's written consent.   The Bank may assign its rights and delegate its duties under this Master Agreement and any applicable Service Agreement to a company affiliated with the Bank or to any other party.

R               Authority and Joint Accounts.  

 

THE FOLLOWING PROVISIONS OF THIS SECTION APPLY ONLY TO SERVICE AND ACCOUNTS ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES.         

 

You hereby represent and warrant that you have full right, authority and power to execute, deliver and perform this Agreement.  If this account is a joint account, you are jointly and severally liable under this Agreement.  Each of you acting alone may perform transactions, obtain information, stop or change payments or transfers, terminate this Agreement or otherwise transact business, take actions or perform under this Agreement.  We are not required to obtain the consent of, or notify any other of you.  However, each of you will only be permitted to access accounts for which you are an owner or authorized user.

 

Each of you individually releases us from any liability and agrees not to make a claim or bring any action against us for honoring or allowing any actions or transactions where the person performing the action or transaction is one of you or is otherwise authorized to use your Internet Banking account.  Each of you agrees to indemnify us and hold us harmless from any and all liability (including, but not limited to, reasonable attorney’s fees) arising from any such claims or actions.

S                Other Provisions for Business Customers.

 

THE FOLLOWING PROVISIONS OF THIS SECTION APPLY ONLY TO SERVICE AND ACCOUNTS ESTABLISHED PRIMARILY FOR BUSINESS PURPOSES.

 

1.     Compliance With Laws, Rules, and Regulations

 

        You agree to comply with all existing and future instructions used by the Bank for processing of transactions.  You further agree to comply with and be bound by all applicable state or federal laws, rules and regulations affecting the use of checks, drafts, fund transfers, and ACH transactions, including but not limited to, rules and procedural guidelines established by the Federal Trade Commission ("FTC"), the Board of Governors of the Federal Reserve, the National Automated Clearing House Association ("NACHA") and any other clearinghouse or other organization  in which Bank is a member or to which rules Bank has agreed to be bound.  These laws, procedures, rules, regulations, and definitions shall be incorporated herein by reference. 

 

2.     Relationship of Parties.

 

        Customer and Bank acknowledge and agree that the relationship between Bank and Customer is that of an independent contractor and that this Master Agreement does not establish or create a general agency, joint venture, partnership, or employment relationship between them.

 

3.     You must complete and sign the Enrollment Form and other documents provided to you by Bank.

 

 

IF YOU ARE A CONSUMER AND YOUR ACCOUNT(S) IS/ARE ESTABLISHED PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES, YOU MUST CLICK ON THE “I AGREE TO THE ABOVE TERMS AND CONDITIONS” FOLLOWING TO ACCEPT THE TERMS OF THIS AGREEMENT.

 

 

IF YOU ARE A BUSINESS AND YOUR ACCOUNT(S) IS/ARE ESTABLISHED PRIMARILY FOR BUSINESS PURPOSES, YOU MUST CLICK ON THE “I AGREE TO THE ABOVE TERMS AND CONDITIONS” FOLLOWING TO ACCEPT THE TERMS OF THIS AGREEMENT.

 

 

 

 

 

MOBILE BANKING SERVICE AGREEMENT

 

The Farmers & Merchants Bank Mobile Banking Service ("Mobile Banking Service" or "Service") is provided to you by Farmers & Merchants Bank ("Bank," "we," and "us").  This Mobile Banking Service Agreement (“Agreement”) sets forth the terms and conditions for use of the Mobile Banking Service.  By clicking the "I Agree" button at the end of this Agreement, you agree to all the terms, conditions, and notices contained or referenced in this Agreement. 

1.           DESCRIPTION OF THE MOBILE BANKING SERVICE.  This Mobile Banking Service Agreement (“Agreement”) sets forth the terms and conditions for use of the Mobile Banking Service (“Mobile Banking Service” or “Service”).  In this Agreement, the words “you” and “your” refer to you as the person entering into this Agreement.  Mobile Banking Service refers generally to any service allowing an existing Bank customer to access and view an account or accounts selected by the customer (individually your "Account," collectively the "Accounts")  from a mobile phone or device (“Mobile Device”) whose network allows secure SSL traffic.  Mobile Banking Services are available, mobile web browsers (“Mobile Web Service”) and downloadable mobile banking applications, for Android and Apple devices (“Mobile Banking Apps”).  The Service functionality varies by device used and we do not guarantee the availability of all Service features on all Mobile Devices. 

Mobile Banking Services include the following, provided you have compatible wireless hardware and software:

1            Access your Account balance information

2            Review transaction history and perform queries or transaction searches

3            Make transfers between your Accounts

4            Make payments using our Bill Payment Service

To use the Mobile Banking Service you must already have or must open one or more deposit accounts at the Bank, you must be designated as an owner of an Account that is eligible for this Mobile Deposit Service and you must be approved by the Bank.You must enroll in the Online Banking Service and execute the Online Banking Agreement before you can enroll in the Mobile Banking Service. You acknowledge and agree that your Accounts are an integral part of the Mobile Banking Services offered by Bank and that all transactions and Mobile Banking Services initiated or processed pursuant to this Agreement are subject to the Terms and Conditions of Your Account and the rules, regulations and agreements (“Deposit Account Agreement”) governing the Accounts, including without limitation the arbitration provisions and all applicable federal, state, and local laws and regulations (“Rules”).  This Agreement supplements your Deposit Account Agreement and Online Banking Agreement. The Online Banking Agreement and the Deposit Account Agreement are hereby incorporated by reference and made a part of this Agreement.  In the event of an inconsistency between the terms of the Deposit Account Agreement or the Online Banking Agreement and this Agreement, this Agreement shall govern.  Undefined terms herein shall have the meaning assigned to them in the Deposit Account Agreement or the Online Banking Agreement, as applicable.  In most cases you may use the Service to gain access to deposit accounts in which you have an unrestricted right to withdraw funds. However, the Bank, as it may determine at any time and from time to time in its sole discretion, may deny Service account access, restrict Service account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account.

You acknowledge and agree that these services may be provided by an independent third party service provider (“Vendor”) as selected by Bank, and that both the Vendor and the Service are subject to change from time to time without notice to you.  You further acknowledge, agree, and stipulate that the Vendor is an independent contractor providing software and data transmission services and is not your agent or the agent of Bank.  Neither the Bank nor the Vendor is responsible for the actions or omissions of the other.

2.             ELIGIBILITY/HOW TO REGISTER FOR MOBILE BANKING SERVICE.  To use the Service, you must have an open account at the Bank, register for Online Banking, and have a compatible Mobile Device. During this registration process, you will be required to provide your Online Banking identification credentials (“Access Code”) that you must use each time you access the Service.  Follow the instructions that we provide to you online to register for the Mobile Banking Service.  During the registration process you will be prompted to accept the terms and conditions of this Agreement. 

3.             SECURITY PROCEDURE.  The use of the Access Code and your Mobile Device is a security procedure established by Bank to authenticate the identity of the person attempting to gain access to the Service.  The security procedure is not designed for the detection of errors.  We may require you to change your Access Code from time to time for security reasons. You should keep your Access Code in a secure location. Any person having access to your Access Code will be able to access these Services and perform all transactions, including reviewing Account information and using the Bill Pay Services.  With this Access Code, a third party will be able to use your Online Banking Service to add new payees to the Bill Pay Service.  You are responsible for safeguarding the Access Codes and your Mobile Device.  Providing these Access Codes to another person effectively constitutes a grant of authority to access your accounts under Consumer Financial Protection Bureau Regulation E (“REG E”).

(a)           You agree to comply with the “Security Procedures” and any other Security Procedures Bank directs you to use, and you acknowledge and agree that the Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with a Security Procedure (“Security Devices”), constitute commercially reasonable security procedures under applicable law for the initiation of transfers and access to confidential customer information.  You authorize us to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until you have notified us, according to notification procedures prescribed by us, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. You agree that the initiation of a transaction using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction notwithstanding any particular signature requirements identified on any signature card or other documents relating to your deposit account maintained with Bank, and you agree and intend that the submission of transactions and instructions using the Security Procedures shall be considered the same as your written signature in authorizing us to execute such transaction.  You acknowledge and agree that you shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by you, to the fullest extent allowed by law.  You further acknowledge and agree that the Security Procedures are not designed to detect error in the transmission or content of communications or transaction initiated by you and that you bear the sole responsibility for detecting and preventing such error. 

(b)           You agree to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to your authorized representative(s).  You agree not to disclose or provide any Security Procedures or Security Devices to any unauthorized person.  Where you have the ability to change or modify a Security Device from time to time (e.g., a password or User Name), you agree to change Security Devices frequently in order to ensure the security of the Security Device.  You agree to notify us immediately, according to notification procedures prescribed by us, if you believe that any Security Procedures or Security Device have been stolen, compromised, or otherwise become known to persons other than you or your authorized representative(s) or if you believe that any transaction or activity is unauthorized or in error.  In the event of any actual or threatened breach of security, we may issue you a new Security Device or establish new Security Procedures as soon as reasonably practicable, but we shall not be liable to you or any third party for any delay in taking such actions.

(c)           We reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Device, at any time and from time to time in our discretion.  We will endeavor to give you reasonable notice of any change in Security Procedures; provided that we may make any change in Security Procedures without advance notice to you if we, in our judgment and discretion, believe such change to be necessary or desirable to protect the security of our systems and assets.  Your implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute your agreement to the change and your agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.

4.             AVAILABILITY OF SERVICE.  We will use reasonable efforts to make the Service available for your use on a continuous basis.  The Service may be unavailable for short periods of time for regular or emergency system maintenance. We will endeavor to have our scheduled maintenance occur during non-peak hours.  In addition, accessibility to the Service may be interrupted because of conditions beyond our control, including outages in Internet, cellular or other communications availability.  We will use diligent efforts to re-establish the Services as promptly as possible.  We do not promise the Service will always be available for your use.  We may elect to discontinue this Service at any time.  If we choose to discontinue the Service, we will provide you with reasonable notice in advance of that fact.  We reserve the right at all times to take actions to protect our systems and information, including denial of access to users of the Service. 

5.             PHYSICAL AND ELECTRONIC SECURITY.  Because the Mobile Banking Service is similar to Online Banking on a personal computer, there are security risks associated with the use of the Service.  The hardware and software that you use in connection with the Service may be subject to unauthorized tracking or other manipulation by spyware or other malicious code.  We are not responsible for advising you of the existence or potential effect of such malicious code, and your use of your hardware and software is at your own risk.  We will use commercially reasonable efforts to secure the Service to prevent access by unauthorized persons and to prevent the introduction of any malicious code, such as a computer virus.  However, no security system is failsafe, and despite our efforts the security of the Service could be compromised or malicious code could be introduced by third parties.  We will provide you with notice if your information is the subject of a security breach as required by applicable law.  You acknowledge and agree that it is your responsibility to protect yourself and to be vigilant against e-mail and/or text messaging fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” or “pharming”).  You acknowledge that, other than at the time you are registering for this Service, Bank will never contact you by e-mail or text message in order to ask for or to verify Account numbers, Security Devices, or any sensitive or confidential information, and will never provide links to websites in e-mails or text messages that Bank transmits to you.  In the event you receive an e-mail, text message, or other electronic communication that you believe, or have reason to believe, is fraudulent, you agree that you shall not respond to the communication, provide any information to the sender of the communication, click on any links in the communication, or otherwise comply with any instructions in the communication.  To the extent allowed by law, you agree that Bank is not responsible for any losses, injuries, or harm incurred by you as a result of any electronic, e-mail, text message or internet fraud.

6.             ACCOUNT ACCESS.  Payments from your Account initiated via the Mobile Banking Service will be deducted on the day you initiate them provided they are made before the bank’s cutoff time of 5:00 p.m.  If the day you initiate a Payment falls on a weekend or holiday, we will process your transaction the next Business Day. We may refuse to act on your Transfer instructions or Payment request if sufficient funds, including funds available under any overdraft protection plan, are not available in your Account on the date you want us to make the Transfer or Payment. 

7.             PROCESSING INTERNAL FUND TRANSFERS.    If you initiate a Transfer, the Transfer will be reflected in your account and available for your use at the time the Transfer is initiated.  You are fully obligated to us to provide sufficient funds for any Payments or Transfers you make or authorize to be made. 

If we complete a Payment or Transfer that you make or authorize and we subsequently learn that you have insufficient funds for the transaction, you agree that we may reverse the transaction or offset the shortage with funds from any other deposit account(s) you have with us to the extent permissible by the applicable law and the terms of any other relevant agreements.

                If there are insufficient funds in your Account to make a Transfer or Payment, we may refuse to make the Transfer or Payment or we may make the Transfer or Payment and overdraw your Account.  In either event, you are responsible for any non‑sufficient funds (“NSF”) charges that may apply.

8.             CANCELLING TRANSFERS OR PAYMENTS.  You may cancel a pending Transfer or Payment transaction.  However, to do so, you must use the Online Banking Service and we must receive your instruction to cancel prior to the cutoff time (5:00 p.m. EST) on the Transfer Day or Business Day the transaction is scheduled to be processed.  If we don’t receive your instruction to cancel a transaction before that time, we may process the transaction.

9.             TRANSFERS FROM SAVINGS/MONEY MARKET DEPOSIT ACCOUNTS.  Federal regulations require us to limit, either by contract or in practice, the number of certain types of transfers from savings and money market deposit accounts. You are limited to six (6) preauthorized electronic fund transfers per calendar monthly statement cycle.  Each fund transfer through the Service from your savings or money market deposit account is counted as one of the six (6) transfers permitted each calendar monthly statement cycle.  However, payments to your loan accounts with us are not counted toward this transfer limit for savings/money market deposit accounts.

10.           BILL PAYMENT SERVICE AND TRANSFERS.  If you have signed up for our Online Bill Payment Service, you can use this Service to initiate Bill Payments, which will be processed during the current Business Day, on a future date, or on the same date of each month.  If you are scheduling a Payment for the current Business Day, it must be initiated prior to 5:00 p.m. Eastern Time.                  Changes to previously scheduled Payments must be made before 5:00 p.m. Eastern Time the Business Day before the day it is to be initiated.  If the transaction shows an (IN PROCESS) status, then the Payment cannot be modified or deleted. Although you can enter Payment information through the Service twenty-four (24) hours a day, seven (7) days a week, the Bank only initiates on Business Days.  You cannot use this Mobile Banking Service to set up new payees.  You must use the Online Bill Payment Service to set up new payees.  The Bank reserves the right to decline to make Payments to certain persons and entities. You agree that any Payment for taxes, Payments that are court-ordered, government payments and Payments outside of the United States are prohibited and you agree that you will not attempt to use the Service to make these types of Payments.  You may not schedule Payments or create a new Payee through this Mobile Banking Service.  Please refer to your Online Banking Service Agreement for the procedures that must be followed to perform these functions.

                Payments are posted against your ledger balance. Funds must be available in your Account on the date you initiate the Bill Payment.  After funds are withdrawn from your Account to make a Payment, we may make the Payment either by transferring funds electronically to the Payee or by mailing the Payee a check.  Funds will be deducted from your account on the same Business Day for Electronic Payments.  Payments made by check will be deducted from your Account when the check clears your Account.  If you direct the initiation of a Payment to occur on a day other than a Business Day, it will be initiated on the following Business Day.  The Bill Payment Service will indicate whether a Payee is paid electronically or by check. You are responsible for any loss or penalty that you may incur due to a lack of sufficient funds or other conditions that may prevent the withdrawal of funds from your account.  Bill Payments made by paper check may be drawn on us or another financial institution.  If your Account does not have sufficient funds to make a Transfer at the time a Transfer is attempted to be made, the Transfer will not be made and you will receive a message advising you that funds are not available.   Bank shall have no obligation or liability if it does not complete a Transfer or Payment because there are insufficient funds in your account to process a transaction.  In all cases, you are responsible for either making alternate arrangements for the Payment or rescheduling the Payment through the Service.  Bill Payments made by paper checks processed by nonaffiliated third parties may show as drawn on the third party processor or its bank rather than on you or on us.  If your Bill Payment is sent by check and the check is not presented for payment within 90 days, we may stop payment on the check.  If we do so, we may delay crediting the check amount to your Account. 

For all Payments, you agree to allow at least five (5) Business Days for an Electronic Payments and at least ten (10) Business Days for Check Payments between the date you initiate a Payment and the Payment due date (that is, the due date shown on your invoice or provided in your agreement with the payee, not taking into account any applicable grace period).  If you fail to allow the prescribed number of days, you will be fully responsible for all late fees, finance charges or other actions taken by the Payee. You agree to reimburse us if the check is later cleared and payment occurs, notwithstanding our stop payment of the check.  If you initiate your Payment and follow all instructions provided, and the Payment is not received by the Payee in a timely manner, a representative of Bank will work with the Payee on your behalf to have any late fees or charges reversed.

Transfers cannot be made through this Service.  One-time Payments do not reoccur, are not made until you enter the Payee and amount of the current bill and submit the Payment. 

A stop payment cannot be placed on an Electronic Bill Payment transaction once issued and the Payment cannot be cancelled.  However, a stop payment can be placed on a Bill Payment transaction by Bill Payment check any time prior to the check being presented for final payment subject to the completion of a Stop Payment Request. 

In the event a Payment is returned to us for any reason, you authorize us, in our sole and absolute discretion, to either research and correct the Payment information or to void the Payment and re-credit your Account. 

11.           CONFIRMATION NUMBERS.  Upon completion of a Transfer or Payment, a confirmation message will be displayed on your Mobile Device confirming that the transaction has been completed.  You should record the Payee information (if applicable), the date of the Transfer or Payment, and the amount of the Transfer or Payment, in your checkbook/transaction register or other permanent record.  This procedure will help in resolving any problems that may occur.  No printed receipts are issued through the Service.

12.           LIMITATIONS.  Your use of the Service is subject to the following limitations:

                (a)           DOLLAR AMOUNT.  There may be a limit on the dollar amount of the transactions you can make using the Service. Security reasons limit the dollar amount of transactions and these limits are subject to change from time to time. Payment can only be made with U.S. currency.

                (b)           FREQUENCY.  In addition to the Federal banking regulations that restrict the number of transfers and withdrawals, there may be limits on the number of transactions you can make using the Service. These limits are for security reasons and are subject to change.

                (c)           FOREIGN TRANSACTIONS.  No Payments may be made to Payees outside the United States. Additional limitations may be contained in this Agreement. Your ability to initiate transactions may also be limited by the terms of other agreements you have with the Bank or by applicable law.

13.          NO FEES TO ACCESS MOBILE BANKING SERVICE.  There is no fee or charge assessed by us for you to register for or access the Mobile Banking Service. (We may assess fees or charges in the future; you will receive notice of such fees or charges, as required by law.)  You may, however, incur charges to receive Internet service on your Mobile Device.  You may also incur charges from your wireless carrier when sending and receiving text messages.  You will be responsible to your wireless carrier for any such Internet or text messaging charges.

14.                PRIVACY AND SOLICITATION.  We are committed to protecting your privacy.  All information gathered from you in connection with using the Mobile Banking Service will be governed by the provisions of the Farmers & Merchants Bank Privacy Policy, which is incorporated herein by reference, and the receiptof which you acknowledge as part of your agreement to this Agreement.  Upon enrollment, you are also providing your express prior consent permitting us to contact you for fraud prevention, servicing, telemarketing purposes, or other purposes as provided in the Privacy Policy.

15.                EXPORT CONTROL & INTERNATIONAL USE.  The United States controls the export of products and information containing encryption ("Controlled Technology").  You agree to comply with such restrictions and not to export or re-export any Controlled Technology within the Service to countries or persons prohibited under the Export Administration Regulations ("EAR").  By downloading any products or information from this Service, you are agreeing that you are not in a country where such export is prohibited and that you are not a person or entity to which such export is prohibited.  You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of any products or information subject to the EAR.  We do not make any representation that any content or use of the Service is appropriate or available for use in locations outside of the United States.  Accessing the Service from locations where its contents or use is illegal is prohibited by Bank.  Those choosing to access the Service from locations outside the United States do so at their own risk and are responsible for compliance with local laws.

16.                PROPRIETARY RIGHTS.  Other than your materials and account information, all content received on the Mobile Banking Service is the exclusive property of Farmers & Merchants Bank and/or its licensors and is protected by copyrights or other intellectual property rights.

17.                YOUR RESPONSIBILITIES.

(a)           PROVIDING HONEST AND ACCURATE INFORMATION UPON REGISTRATION. You agree to provide true, accurate, current, and complete information about yourself as requested in registering for the Service, and you agree to not misrepresent your identity.

(b)           NO ILLEGAL USE OF THE MOBILE BANKING SERVICE.  You agree not to use the Service to conduct any business or activity or solicit the performance of any activity that is prohibited by law or any contractual provision by which you are bound with any person.  You agree to comply with all applicable laws, rules, and regulations in connection with the Service.  You certify that you are 18 years of age or older or otherwise able lawfully to enter into contracts under applicable law.

(c)           PROMPT NOTIFICATION OF THEFT OR DESTRUCTION OF EQUIPMENT.  You agree to notify us in a timely manner in the event you lose, change, or destroy the device whose phone number is registered with the Mobile Banking Service.

(d)           NAMING OF ACCOUNTS.  You agree not to use any personally-identifiable information when providing shortcuts or creating nicknames to your Accounts.

(e)           DUTY TO INSPECT.  You shall inspect all transaction history, reports, journals, and other material evidencing the output of the service(s) performed by Bank.  You must report all errors to the Bank for services performed and indicated in the transaction history, reports, journals, and other material evidencing the output of the service(s) or otherwise reported to you daily by the close of business on the banking day following the day on which the Service(s) is rendered. You must report all other errors within a reasonable time not to exceed sixty (60) days from the date that the error is made.  Your Failure to promptly report errors within such specified time shall preclude you from asserting against the Bank any claims arising from the error or any loss caused by the error.

18.                THE BANK’S RESPONSIBILITIES.  Bank agrees to use ordinary care in rendering Services under this Agreement.  You recognize and agree that ordinary care does not mean error free.  You agree to pay all attorneys’ fees, costs and expenses Bank may incur in collecting any sums you owe to Bank for overdrafts, service charges or otherwise or in enforcing any rights Bank may have under the terms of this Agreement or applicable law, rule or regulation applicable to your account(s) or the Services rendered by Bank under this Agreement.  You also agree to pay all attorneys’ fees, costs and expenses that Bank may incur as the result of defending any claim or action made against Bank by you, or on your behalf where Bank is found not to be liable for such claim.  In no event shall Bank be liable to you for attorneys’ fees incurred by you in any action brought by you against Bank.

Our sole responsibility for an error in a transfer will be to correct the error.  Without limiting the generality of the forgoing, we will not be responsible for the following matters, or for errors or failures of our Services as result of:

(a)           ACCESS.  We will not be liable under this Agreement for failure to provide access or for interruptions in access to our Services due to a system failure or due to other unforeseen acts or circumstances.

(b)           YOUR MOBILE DEVICE & YOUR SOFTWARE.  We will not be responsible for any errors or failures from any malfunction of your Mobile Device or any malicious software or other problems related to the Mobile Device used with our Services.

                We are not responsible for any error, damages or other loss you may suffer due to malfunction or misapplication of any system you use, including your mobile browser (Internet Explorer Mobile®, Safari®, Opera Mini™/Opera Mobile™ or otherwise), your mobile service provider, your personal financial management or other software (such as Quicken® or Microsoft Money®), or any equipment you may use to access or communicate with the Service.

(c)           OTHER.  Any Transaction or instruction that: (i) exceeds your collected and available funds on deposit with the Bank; (ii) is not in accordance with any condition indicated by you and agreed to by the Bank; (iii) the Bank has reason to believe may not be authorized by you; (iv) involves funds subject to hold, dispute, or legal process preventing their withdrawal; (v) would violate any provision of any present or future risk control program of the Federal Reserve or any current or future rule or regulation of any other federal or state regulatory authority; (vi) is not in accordance with any other requirement stated in this Agreement or any Bank policy, procedure or practice; or, (vii) for the protection of the Bank or you, the Bank has reasonable cause not to honor.

19.                CONTACT INFORMATION/HOURS OF OPERATION. In case of questions about the Service or your electronic transactions contact customer service at:

Farmers and Merchants Bank 

                Attn: Customer Service Center

                4 N. Carter Street

                P. O. Box 187

                Lakeland, GA  31635

                Phone:  866-923-5362 or

                Fax us at: 229-482-2730

Our representatives are available to assist you Monday – Friday from the hours of 8:15 a.m. to 4:00 p.m. Eastern Time, except federal holidays.

20.                AUTHORITY AND JOINT ACCOUNTS.  You hereby represent and warrant that you have full right, authority and power to execute, deliver and perform this Agreement.  If this account is a joint account, you are jointly and severally liable under this Agreement.  Each of you acting alone may perform transactions, obtain information, terminate this Agreement or otherwise transact business, take actions or perform under this Agreement.  We are not required to obtain the consent of, or notify either of you.  However, each of you will only be permitted to access accounts for which you are an owner or authorized user.  Each of you individually releases us from any liability and agrees not to make a claim or bring any action against us for honoring or allowing any actions or transactions where the person performing the action or transaction is one of you or is otherwise authorized to use your Mobile Banking account.  Each of you agrees to indemnify us and hold us harmless from any and all liability (including, but not limited to, reasonable attorney’s fees) arising from any such claims or actions.

21.                INTERNET DISCLAIMER.  For any service(s) described in the Agreement utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank's network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, your ability to connect to the Internet, or Bank's ability to connect to the Internet on your behalf.

22.                LIMITED LIABILITY.  YOU UNDERSTAND THAT THERE ARE RISKS ASSOCIATED WITH USING A MOBILE DEVICE, AND THAT IN THE EVENT OF THEFT OR LOSS, YOUR CONFIDENTIAL INFORMATION COULD BE COMPROMISED. 

IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, 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 OF GOODS OR THE MOBILE BANKING SERVICE), INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE MOBILE BANKING SERVICE EVEN IF YOU, BANK, OR BANK’S SERVICE PROVIDER HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY LAW, THE AGGREGATE LIABILITY OF BANK AND OUR THIRD PARTY SERVICE PROVIDERS UNDER THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND DOLLARS.

YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED BY BANK ON AN “AS IS” BASIS. 

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO YOU OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY.  YOU AGREE THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO. 

BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU AS TO ANY MOBILE DEVICE HARDWARE, SOFTWARE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICE (INCLUDING, WITHOUT LIMITATION, YOUR MOBILE DEVICE OR RELATED EQUIPMENT, YOUR SOFTWARE, OR YOUR MOBILE SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT YOU USE, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING (BUT NOT LIMITED TO) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF YOUR MOBILE DEVICE HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO YOU IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM YOU TO BANK OR FROM BANK TO YOU.  BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING YOU OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF YOUR MOBILE DEVICE HARDWARE OR SOFTWARE.

23.                RELATIONSHIP OF PARTIES.  You and Bank acknowledge and agree that the relationship of Bank and you is that of an independent contractor and that this Agreement does not establish or create a general agency, joint venture, partnership, or employment relationship between them.

24.                FORCE MAJEURE.  The Bank shall not be responsible for any liability, loss, or damage resulting from Bank's failure to perform any Service or to perform any other obligations under this Agreement which is caused by an act of God, fire, floods, adverse weather or atmospheric conditions or other catastrophes; war, sabotage, riots, acts of public enemy, or acts of governmental authority or the Board of Governors of the Federal Reserve; labor difficulties; equipment or computer failure or destruction or the unavailability, interruption, or malfunction of communications facilities or utilities; delays or failure to act by you or third parties and their personnel; criminal acts; or generally any cause reasonably beyond the Bank's control.

25.                INDEMNIFICATION.  In addition to the indemnification and liability provisions contained elsewhere in this Agreement, the following provisions apply:  You agree to indemnify, defend, and hold Bank and our affiliates, officers, directors, employees, consultants, agents, Mobile Banking Service providers, and licensors harmless from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from damages that result from misuse or loss of your phone or misuse of the Service.  You will be liable for, hold harmless, and will indemnify Bank, and their employees and agents from and against all claims of any sort by third parties or others arising out of this Agreement, including all losses and expenses incurred by Bank arising out of your failure to report required changes, transmission of incorrect data to Bank, or failure to maintain compliance with all laws, regulations and rules.  Except for those losses caused directly by Bank’s failure to act in good faith, you agree to indemnify and hold Bank, its officers, directors, shareholders, agents, employees, and affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all losses, costs, suits, damages, claims, liabilities and expenses (including reasonable attorneys’ fees) arising from or related in any way to (i) any services performed in connection with this Agreement, (ii) Bank’s action or inaction in accordance with or reliance upon any instructions or information received from any person reasonably believed by Bank to be an authorized representative of you or Authorized User, (iii) your breach of any of your covenants, agreements, responsibilities, representations or warranties under this Agreement, and/or (iv) your breach of applicable laws, rules or regulations.

26.                AREA OF SERVICE.  The Services described in this Agreement are solely offered to citizens and residents of the United States of America and may not be accessed while outside of the United States of America.

27.                PROGRAM REVISIONS.  We may, from time to time, revise or update, or perform maintenance upon, our program, the Services, and/or related material, resulting in interrupted service or errors in the Services or rendering prior versions obsolete.  We also may need to change the scope of our Services from time to time.  We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.  We reserve the right to terminate this Agreement as to all prior versions of our programs, the Services, and/or related material and limit access to our more recent versions and updates.  Use of the Service after the effective date of any such revisions, updates, and/or changes will constitute your consent to the same.

28.                NOTICES.  All notices required under this Agreement shall be sent in writing or electronically by a telecommunications device capable of creating a written record and delivered, mailed, or made available to you at the most recent address on file with the Bank and to us at the address set forth herein or to such other address as such party may designate from time to time. All notices shall be effective upon mailing or electronic transmission.

29.                TERMINATION.  This Agreement will be in effect from the date your registration is submitted by you and accepted by Bank and at all times while you are using the Mobile Banking Service. Either you or Bank may terminate this Agreement and your use of the Service or any product within the Service at any time with or without notice. We may terminate this Agreement after ninety (90) days of inactivity.  All applicable provisions of this Agreement shall survive termination by either you or Bank.

30.                LIABILITY FOR TRANSACTIONS COVERED BY REGULATION E (CONSUMER ACCOUNTS).  To the extent a transaction is an “electronic fund transfer” under Consumer Financial Protection Bureau Regulation E, tell us AT ONCE if you believe your Password has been lost or stolen, or if you believe that a Mobile Banking transaction has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. Call us at 866-923-5362 during our normal business hours.

31.                You could lose all the money in your account (plus your maximum overdraft line of credit). If you tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, you can lose no more than $50.00 if someone used your Access Code or made a transaction without your authorization.

If you do NOT tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, and we can prove we could have stopped someone from using your Access Code or the Service without your authorization if you had told us, you could lose as much as $500.00.  You could also lose up to an additional $50.00 if the Funding Account has an overdraft protection line of credit feature.  Also, if your statement shows a transaction that you did not make or authorize, tell us at once.  If you do not tell us within sixty (60) days after the statement was mailed, electronically transmitted, or otherwise made available 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 hospital stay) kept you from telling us, we will extend the time periods as may be reasonable under the circumstances.

32.                BANK’S FAILURE TO COMPLETE TRANSACTIONS (CONSUMER ACCOUNTS).  To the extent that a Mobile Banking Service transaction is an “electronic fund transfer” under Consumer Financial Protection Bureau Regulation E that relates to an Account established primarily for personal, family, or household purposes, if we do not properly complete a transfer to or from your Account on time or in the correct amount according to the terms of this Agreement, we will be liable for your losses or damages.  However, we will not be liable (and any payment guarantee provided elsewhere in this Agreement will not be applicable) if any of the following occurs:

·         Through no fault of ours, you do not have sufficient collected funds in the Account to complete the transaction;

·         The transaction would exceed the credit limit on any overdraft line of credit linked to the Account;

·         Your  Mobile Device, Internet service provider, Cellular service provider, telephone line, modem, router, or other equipment is not operating properly;

·         The Service is not working properly and you were aware of the malfunction when you initiated the transaction;

·         You do not properly follow the instructional materials provided in connection with Mobile Banking;

·         You do not authorize a Payment within a sufficient period of time for your Payment to be received by the payee by the due date;

·         You have not provided us with the correct Payee name, address, account information, Payment amount, or other instructions necessary to complete the Payment, or the foregoing instructions that may be stored on your Mobile Device or the host system have been lost;

·         A Payee mishandles or delays the handling of Payments sent by us;

·         Your funds are held or frozen, or a court order or other legal process prevents us from making a transaction;

·         Your Access Code has been reported lost or stolen;

·         We have reason to believe that a transaction has not been properly authorized or authenticated, or is fraudulent, erroneous, or illegal;

·         You have exceeded the limitations on frequency of transactions or dollar amount of transactions applicable to the Service or the Account;

·         Your Mobile Device service has been disconnected or there are deficiencies in the quality of your mobile data transmissions;

·         Circumstances beyond our control (such as telecommunication or electrical outages and malfunctions, postal strikes or delays, computer system failures, or natural disasters) prevent the transaction;

·         Making a transfer would cause us to violate any law, rule, or regulation to which we are subject; or

·         Any failure on our part was not intentional and resulted from a bona fide error notwithstanding procedures to avoid such error, except for actual damages (which do not include indirect, incidental, special, or consequential damages).

                There may be other exceptions to liability stated in this Agreement, or in other agreements we have with you, or otherwise provided by applicable law.

33.                ERROR RESOLUTION (CONSUMER ACCOUNTS).  In case of errors or questions about your electronic transfers, telephone us, write us at or E-mail us at the number or location provided in Paragraph 19 as soon as you can if you think that your statement is wrong or you need more information about a transaction listed on your statement or appearing on the account activity screen of your PC and/or Mobile Device, we must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared or you received notification of the problem or error on your PC and/or Mobile Device.  You must:

·         Tell us your name and the Account number.

·         Describe the error or the transaction you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.

·         Tell us the dollar amount of the suspected error.

·         If the suspected error relates to a bill payment made via the Mobile Banking Bill Payment Service, tell us the account number used to pay the bill, payee name, the date the payment was sent, payment amount, confirmation number, and the payee account number for the payment in question. (This information appears on a screen in the Online Banking Service.)

                If you tell us orally, we may require that you send us your complaint or question in writing within ten (10) Business Days. We will determine whether an error occurred within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) after we hear from you and will correct any error promptly.  If we require more time, however, we may take up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) to investigate your complaint or question.  If this additional time is necessary, and your written notification has been received by us, we will credit your account within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) 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 ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account), we will not credit your account and we will still have up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) for our investigation.

We will tell you the results within three (3) Business Days after completing our investigation.  If we decide that 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.

34.                GOVERNING LAW.  These terms and conditions of this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict of law provisions and without regard to your state of residence.

35.                ENFORCEMENT.  In the event a dispute arises either directly or indirectly, under this Agreement, the venue for any and all litigation resulting therefrom shall be in a court of appropriate jurisdiction in Georgia.  The prevailing party in any such action shall be entitled, subject to applicable law, to payment by the other party of its reasonable attorney’s fees (which may be or include the allocable cost of in-house counsel) and costs, including fees for any litigation, arbitration, mediation, appeal, or bankruptcy proceedings, and any post-judgment collection actions, if applicable. 

36.                MISCELLANEOUS PROVISIONS.

(a)           HEADINGS.  The headings and captions contained in this Agreement are included only for convenience of reference and do not define, limit, explain, or modify this Agreement or its interpretation, construction, or meaning.

(b)           SEVERABILITY.  The holding of any provision of this Agreement as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of this Agreement, which shall remain in full force and effect.

(c)           WAIVER.  No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of you shall bind the Bank to waive the same term, condition, or obligation again, nor shall any other provision, condition, term, or obligation hereof be affected by such a waiver.

(d)           BINDING EFFECT.  This Agreement shall inure to the benefit of and be binding upon the successors, heirs, trustees, and permitted assigns of the parties hereto.

(e)           ENTIRE AGREEMENT.  This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter hereof.  All contemporaneous agreements or understandings concerning the subject matter hereof, whether oral or written, are merged into this Agreement.

(f)            TRANSFERS AND ASSIGNMENTS.  You cannot transfer or assign any rights or obligations under this Agreement without Bank's written consent.   The Bank may assign its rights and delegate its duties under this Agreement to a company affiliated with the Bank or to any other party.