This Online and Mobile Banking Services Agreement ("Agreement") sets forth the terms and conditions applicable to the online and mobile banking services provided by Fremont Bank. In this Agreement, “Service” refers to Online and Mobile Banking Services offered by Fremont Bank. Service includes online banking, mobile banking, online bill pay, mobile deposit, text banking, internal transfer services, external transfers to someone else, online banking and mobile text alerts, error resolution, electronically delivered statements (“eDelivery”), and financial services you access using a personal computer or a mobile access device, including a smartphone, tablet, or any other eligible device. Unless otherwise stated, any reference to the Agreement shall include applicable schedules, enrollment forms, and exhibits to the same, as well as applicable user guides, user manuals, set-up forms and other user materials, including online terms and information. Each time you access the Service, you confirm your agreement to these terms, as amended from time to time. You agree that the Accounts accessed using the Services will only be used for personal, family or household purposes.
This Agreement includes disclosures applicable to consumer accounts as provided under the Electronic Fund Transfer Act (EFTA) and its implementing Regulation E. Read this document carefully and retain a copy for your records. This Agreement is not intended for use by commercial account holders and any regulatory consumer protections provided to consumer accounts will not apply to commercial accounts under this Agreement. If you have any questions, please call (866) 222-6304 Monday-Friday 8:00AM-7:00Pm and 8:30AM-5:30PM Saturday and Sunday.
Definitions
In this Agreement, defined terms have the meaning given to them. In addition:
"Account" means any account you maintain with us and can include all accounts, loans, mortgages, and products you use with us. Your "Account" refers to the account(s) you have designated as the account accessible to the Services (a checking, money market or savings account) that is either an Eligible Transaction Account or External Account, as applicable.
"ACH Network" means the funds transfer system, governed by the NACHA Rules that provides funds transfer services to participating financial institutions.
"Affiliates" are companies related by common ownership or control.
"Available balance," "available funds" and similar words mean the balance in your Account as determined under our funds availability policy.
"Biller" means the person or entity to which you wish a Bill Payment to be directed or is the person or entity from which you receive electronic bills, as the case may be.
"Business Day" is every Monday through Friday, excluding Federal holidays or other days that banks are legally closed.
"Communication(s)" means instructions and actions from you (or attributable to you under this Agreement or otherwise) received by us through the Services.
"Commercial account" shall mean an account that is not established primarily for personal, family or household purposes, or is otherwise not a "consumer account" under the EFTA.
"Consumer account" shall mean an account that is established primarily for personal, family or household purposes and is subject to the EFTA as a "consumer account."
"Eligible Transaction Account" is a transaction account from which your transfers will be debited, your Service fees, if any, will be automatically debited, or to which transfers and credits to you will be credited, that is eligible for the Service. An Eligible Transaction Account shall be limited to a checking, money market, savings account or other direct deposit account that you hold with us.
"External Account" is your account at another financial institution (i) to which you are transferring funds from your Eligible Transaction Account; or (ii) from which you are transferring funds to your Eligible Transaction Account.
"Payment Instruction" is the information provided for a payment to be made under the applicable Service, which may be further defined and described below in connection with a specific Service.
"Payment Network" means a debit or credit network (such as the ACH Network or ACCEL / Exchange payment network) through which funds may be transferred.
Your "Security Codes" are the credentials (such as codes and passwords) that are associated with you and used by us to verify the authenticity of Communications from you. Security Codes are used to access Accounts and to use the Services. The Security Codes include any supplemental or alternative method used to verify the authenticity of Communications that may be offered or presented to you by us from time to time.
"Service Provider" means companies that we have engaged (and their Affiliates) to render some or all of the Account to Account Transfer Service to you on our behalf.
The "Service(s)" are the online and mobile banking interfaces and the Services described in this Agreement.
The "Site" is the online banking site or mobile applications (the “Site”) through which the Services are made available.
"Transfer Instruction" is specific information provided for a transfer to be made that you provide to the Service for a transfer of funds.
"We," "Us," "Our," "Bank" and similar terms are used to refer to Fremont Bank.
"You," "Your," and similar terms are used to refer to the person entering into this Agreement and to the each person who is an owner of or has an interest in an Account together with the owner's authorized representatives.
The word "includes" means "including but not limited to" the examples given.
The word "may," when used in reference to us, means at our option and sole discretion. Action (or inaction) that we "may" take is authorized by you and allowed to us, but is not required. You agree that we will not be liable for any action taken or any failure to act when action or inaction is at our discretion.
Agreement
We may act on communications, requests for information, or requests to facilitate any Service requested on or associated with an Account, from any Account owner (including joint owners), their authorized representatives, including any Account authorized signer. Each time you use our Services or you permit any other person to use our Services, you are agreeing to the terms and conditions that we have set out in this Agreement, including any instructional materials regarding the Services, including instructions presented to you at our website, as amended. You agree not to resell or offer a Service to another, or to process any transactions for others using a Service. You certify that you are at least 13 years or older. You authorize us to obtain information about you from others (including credit reporting agencies) as part of our review of your enrollment application and from time to time thereafter. You agree to provide us with information as we request, from time to time.
Our duty to respond to communications and service requests from you will be limited to the extent expressly provided in this Agreement, and as otherwise required by applicable law or regulation. Nothing contained in this Agreement will be construed to require us to detect and correct or report errors in information or transmissions received from you. You acknowledge and agree that you will comply with your obligations to timely review and report errors or unauthorized activity in statements and communications made available from us regarding your Accounts, including routine periodic statements, as provided in this Agreement and the Account Agreement (defined below). You agree to maintain a record of your Service communications and transactions to enable us to reconstruct activity for a reasonable period of time, as may be need by us from time to time.
Services
Under the terms and conditions of this Agreement, with the Services you can, subject to system limitations:
Access your Eligible Accounts
View/download electronic Account statements
Obtain Account information
Transfer funds between your linked Fremont Bank Accounts, excluding certificates of deposit ("Internal Transfers")
Initiate funds transfers between your accounts with us and your accounts with other financial institutions ("Account to Account External Transfers")
Initiate check stop-payment instructions
Order checks
Set up account alerts ("Alerts")
Initiate bill payments ("Bill Payments")*
Set up online receipt of electronic bills ("eBills")*
Send and receive funds to and from third parties using Zelle ® *
Access some of the Services and present checks for deposit to your linked Accounts using your wireless access device ("Mobile Banking")
Initiate linked loan account advances and payments
View recent linked loan account payment history, insurance and tax information
View certain wealth management and investment account details
Some Services may not be available without special application to and approval by us, may be limited to specific types of accounts, and may require you to agree to additional terms and conditions which may be presented online at the time the feature is activated. Balances reflected in the Service may not reflect all transactions against an Account on the day the transaction occurs. Services performed during nightly processing may not succeed when applied to your actual balance at the end of the nightly processing. Information about some transactions may not be available on the day the transaction occurs. Some of the Services may appear on your screen that have not been activated for your use. We may make other services available to you and you agree to be bound by the terms and conditions of the additional services, as they apply, in addition to the terms of this Agreement.
*Separate enrollment is required for Bill Payment and Personal Payments with Zelle. Your use of the Bill Payment and Personal Payments with Zelle Services is governed by the terms for each service. You may view the Terms of Service for Bill Payment and Zelle at: https://cw411.checkfreeweb.com/imm/LDD/ViewTermsAndConditions/11478
Access Eligibility
The Service is offered only to individual residents of the United States who can form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not offered to minors unless the minor is using an Eligible Transaction Account in the name of the minor with a parent or guardian as a co-signor or guarantor. By using the Service, you represent that you meet these requirements and that you agree to be bound by this Agreement.
Access Restrictions Waiver
Your Accounts may be subject to access restrictions when you conduct transactions in person or when you are using systems other than with a Service. We may limit or deny Services to you if there are access restrictions. Conversely, we may process your transactions based on Communications without regard to or any need to comply with access restrictions otherwise applicable to your Accounts.
Eligible Accounts
If you wish to add a new Account to, or remove an existing Account from, Service access, you must call us at (866) 222-6304. We are not, however, obligated to establish access to any or all of your Accounts, and not all Services may be available with all Accounts. Some Services may not be available without special application to and approval by us, or may be limited to specific types of Accounts.
Eligible Accounts include the following types: checking, money market, savings, and time deposits. In some cases, we may allow loans and lines of credit to be linked, in which case you agree that the relevant loan agreement, note or other document is modified to the extent necessary to allow the transfers or other Services that may be utilized. We may process transactions from loan Accounts without regard to access limitations in any loan documentation or agreements. Certificates of deposit are time deposits where early withdrawal penalties may result. No online transactional activity is allowed on certificates of deposit, which are view only. Accessibility to Accounts may vary based on the Service(s) you use. Certain investment accounts are also accessible using the Service, for information only.
Linking Accounts
We reserve the right to limit which Accounts may be "linked" under the Services. Any signer on any linked Account, acting alone, is authorized by you to access and use Services for any other linked Account, whether or not that person would be authorized to transact on the other linked Account in the absence of this Agreement.
Account Information
Account information provided using the Services may reflect funds that are not currently available, as well as funds that are pending processing and that may change before final posting. Posted transactions may be reversed due to insufficient funds, stop payment orders, legal process, or other reasons. Some transactions may not be reflected by the system until the following Business Day. In the event of conflict between Account information provided in the Services and information reflected on our internal records, our internal records will control. Some transaction information may not be immediately accessible using the Services. You may confirm any Account or transaction information, including information provided while using the Services, by calling us at (866) 222-6304.
Account Information Services
The Services include the ability to obtain Account information, subject to system limitations. Certain balances may not be subject to immediate withdrawal. We assume no responsibility for any loss arising from incomplete information or for any temporary interruption in your access to online information. If you are unable to access the Services for any reason, you may contact us at (866) 222-6304.
Receipts and Transaction History
You may view your transaction history by logging into the Service and looking at your transaction history. You agree to review your transactions by this method instead of receiving receipts by mail.
Sufficient Funds
You must have sufficient available funds in your Account to cover the amount of any transaction that would be charged to your Account. Subject to limitations set out in this Agreement, you can request payments up to the amount of available funds or available credit in your Account (if any). We may hold (or "freeze") funds at any time after you have initiated a Service for any reason, including as a means of reducing risks that there will be insufficient funds for completing the Service. If we do hold funds, we may treat the held funds as not available for other purposes, and reject other transactions (for example, checks or other transfer instructions). Nothing in this Agreement, or any course of dealing between us, shall be construed as our commitment or obligation to lend you money.
Cut-Off Hours
A Communication received by us after the cut-off time on a Business Day, or on a day that is not a Business Day, may be treated by us as if it were received on the next Business Day. At our option, however, we may treat it as received the same day as the day of receipt. There can be a delay between the time when you send a Communication to us and the time we receive it. All references to time in this Agreement shall refer to Pacific Time. Our current cut-off hours are as follows:
Internal Account Transfers (between Fremont Bank Accounts): 8:00PM
Stop Payment on a Check: 8:00PM
Loan Account Advance Transfers: 8:00PM
Mobile Deposit: 7:00PM
Bill Payments: Vary depending on the payment date selected
Account to Account (External) Transfers: 10:00PM (Standard); 5:00PM (Next-Day Requests)
Zelle® Service
Send: Most payments will happen within minutes, some payments may take longer and have different cut-off times. 10:00PM (3 day Standard Requests); 7:00PM (Next-Day Requests)
Receive: To Receive Payments for current Business Day through Zelle is 3:00PM. If a Zelle Payment is accepted after the cut-off hour, the funds will typically be available for cash withdrawal at ATMs and online transactions, but not available to pay other payments that were presented on the same Business Day.
Limits
The following limits apply:
Account to Account (External) Transfers: The minimum transaction amount is $10.00.
Limits
Transaction Fee
Transaction Maximum (Per Transfer)
Daily Maximum
Monthly Maximum*
Standard Out-bound
None
$5,000
$5,000
$10,000
Standard In-bound
None
$5,000
$5,000
$10,000
Next-Day Out-bound (Express)
$5.00
$2,000
$2,000
$5,000
Next-Day In-bound (Express)
$5.00
$2,000
$2,000
$5,000
* Rolling 30-day period
Zelle® Service: The minimum transfer amount is $5.00.
You may send up to 15 Zelle transfers with an aggregate dollar limit of $2,000 per calendar day; and 30 transfers with an aggregate dollar limit of $5,000 per rolling 30-day period.
Loan Account Advance Transfers: Dollar limits will be based on available credit balance and subject to dollar limits and fees disclosed in the underlying loan documentation.
Mobile Deposit: $10,000 per Business Day; and $10,000 per calendar month.
Without limiting the above, there are limits on the amount of money (or, as applicable in some cases,) you can send or receive through our Service. Your limits may be adjusted from time-to-time at our sole discretion. You may log in to the Site to view your individual transaction limits. We also reserve the right to select the method in which to remit funds on your behalf though the Service, and in the event that your Eligible Transaction Account is closed or otherwise unavailable to us the method to return funds to you.
These payment methods may include, but may not be limited to, an electronic or paper check or draft payment.
Fees and Charges
Our current fees and charges for the Service are as follows:
Bill Payments (each)
$9.95, Same-Day
$14.95, Next-Day
$0, Standard
Account to Account (External) Transfer (each)
$5.00, Next-Day, Express
Zelle ® (each)
No Fee
Stop Payments
(each):
$30.00
We may impose new fees and charges, or increase or change existing fees and charges. We will provide advance notice of these changes to you if required by law. Other fees may be assessed and billed separately by your Internet and/or telephone service provider. You agree to pay all fees and charges we impose. You authorize us to charge the designated Account and/or any other account you hold with us to cover your fees and charges. You also authorize us to charge you according to our then current fee schedule. Without limiting the foregoing, you agree that you are responsible for paying all fees associated with your use of the Service. Applicable fees will be disclosed in the user interface for, or elsewhere within, the Service or Site. Any applicable fees will be charged regardless of whether the Service was used, except for fees that are specifically use-based. Use-based fees for the Service will be charged against the Account that is debited for the funds transfer. There may also be charges for additional transactions and other optional services. You agree to pay such charges and authorize us to deduct the calculated amount from the applicable Eligible Transaction Account you hold with us or the Account that is debited for the funds transfer, depending on how such charges are described in the user interface for the Service. Any financial fees associated with your standard deposit accounts will continue to apply. You are responsible for any and all telephone access fees and Internet service fees that may be assessed by your telephone and Internet service provider. The Section titled "Failed or Returned Payment Instructions" applies if you do not pay our fees and charges for the Service, including without limitation if we debit the External Account for such fees, as described in this Section, and there are insufficient fees in the External Account; the "Failed or Returned Payment Instructions" Section should be interpreted as applying to the External Account, not just the Eligible Transaction Account, in such circumstances. To the extent permitted by law, you give us the right to set off any of your money or property which may be in our possession against any amount owed to us under this Agreement. This right of set off does not extend to any Keogh, IRA account, or similar tax-deferred deposit.
Hours of Operation; Interruption in Services; Changes
You will generally be able to use Services seven days a week, 24 hours a day. However, a Service may not be available due to system maintenance or circumstances beyond our control. Services may be added, cancelled or limited at any time or from time to time, with or without cause or notice (except as required by law).
Compliance with Laws and Rules
You agree to comply with all state and federal laws, rules, and regulations applicable to you and to your use of the Services (the "Laws"), including the operating rules of all systems used to provide Services to you (the "Rules"), and to provide evidence reasonably satisfactory to us of the same if requested by us. You agree not to use the Service for any illegal purpose, including but not limited to illegal Internet gambling. Without limitation, you agree and acknowledge that the Services may not be used by you in violation of the laws of the United States, including sanction laws administered by the Office of Foreign Asset Controls (OFAC). You acknowledge and agree that the software you use to access Services may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations. You agree and certify that neither the software nor any direct product thereof is being or will be used by you for any purpose prohibited by these Acts.
Additionally, each Account and the Services will be subject to and governed by the following:
The terms or instructions appearing on a screen when using a Service;
Our "Deposit Account Agreement" account agreement ("Account Agreement"), and our rules, procedures, and policies;
Applicable provisions of the rules of the National Automated Clearing House Association (NACHA) for bill payments facilitated through the ACH;
Applicable state and federal laws, rules, and regulations; and
The rules of other funds transfer systems when used in connection with a Service.
Nothing in this Agreement relieves you of any obligation you may have under the Laws or the Rules, and this Agreement is deemed modified to the extent necessary to allow or require you to comply with the same. You will implement and maintain procedures, including retention of legal or compliance services, to ensure that you are able to comply with all current and future Laws and Rules, including any changes to them. We are not obligated to provide information, updates or notice of or regarding the Laws or the Rules, even if we are aware of the same and of the potential for material impact on you and your use of the Services, and your indemnification and other obligations to us are not relieved or reduced by our not providing the same to you. If we do provide information, updates or notices of or regarding the Laws or the Rules to you, we are not responsible for the accuracy of the same and may discontinue doing so at any time.
Electronic Records and Signatures
When any Service generates items or transactions to be charged to your Account, you agree that we may charge the affected Account without requiring your signature on an item and without prior notice to you. Any transactions resulting from your instructions which we receive in your name and under your credentials shall be deemed to have been "a writing" and authenticated by you "in writing" for purposes of any law in which a writing or written signature is needed or required. All records maintained by us of transactions under your credentials shall be deemed to have been "signed" and to constitute an "original" when printed from records established and maintained by us or our authorized agent in the normal course of business. You agree not to contest the authorization for, or validity or enforceability of, our electronic records and documents, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or records are to be in writing or signed by the party to be bound thereby. Records and "signed" documents, if introduced as evidence on paper in any judicial or other proceedings, will be admissible to the same extent and under the same conditions as other documentary business records. Upon our written request, you agree to manually sign or place your signature on any paper original of any record or "signed" document which we provide to you containing your purported signature.
Check Stop Payment Services
You may request a stop payment on a check issued on your deposit Account(s) by completing the form presented as part of the check stop payment Service and submitting all the required information to us (“Stop Payment”). All Check Stop Payment requests, renewals, and revocations of stop orders will be subject to our current policy on stop payment requests. For significant or material items, contact us by calling (866) 222-6304 in addition to using the Services for Check Stop Payment.
You are responsible for reviewing all information available to you to determine whether the check has already been paid, including your account statements. Information available online may not include sufficient historical information to verify whether the check has been paid. Your receipt of a Check Stop Payment confirmation via the Service, or acceptance of your request via the Service, does not conclusively represent whether or not the check has already been paid. We may accept a Check Stop Payment request from you with respect to a check that has already been paid, and we will have no obligation to determine or notify you that such check was previously paid. In any event, we must receive your Check Stop Payment request sufficiently in advance to provide us with a reasonable opportunity to process your request in sufficient time prior to presentment of the check. There will be a fee assessed for each Check Stop Payment request whether or not we receive the request in time to place the Check Stop Payment. Refer to the Fees and Charges Section above for the current fee.
You must give us timely, complete, and accurate information as prompted by the Service, including the account number, check date, payee, EXACT amount of the check (dollars and cents), and the check number. If any information is incomplete or inaccurate, we will not be responsible for failing to stop payment on the check.
You may use the Check Stop Payment Service to stop payment on checks that you have written against your deposit Accounts. If you wish to cancel or amend any other Service transaction, you should use the process applicable to that Service, and you will be subject to any limitations or inability to stop applicable to that Service.
You may not use the Check Stop Payment Service to stop payment on any ACH/EFT transaction, point-of-sale ACH/EFT transfer; any cashier’s check, certified check or other official institution check you have purchased from us or any check which we have guaranteed. You understand that your Check Stop Payment request is conditional and will not be effective if we have not had a reasonable opportunity to respond to your request, or that stopping payment may subject us to risk of loss or damages under any law or regulation (including clearing house or other processor rules).
A Check Stop Payment request against a check is effective only against the check that is described in the Check Stop Payment request form; and does not cancel or revoke any authorization for future or recurring ACH/EFT transfers by you or by the same biller or originator. A Check Stop Payment request is effective for six (6) months only and will expire automatically, at which time you are responsible for any renewal desired by you for another six (6) month term.
You assign to us your rights against the payee or any other holder of any check on which you have requested a Check Stop Payment, and you agree to cooperate with us in any legal action we may take against such persons. You should be aware that a holder of a check may be entitled to enforce payment against you notwithstanding an electronic stop payment order. Your obligations under this subsection will survive termination of this Agreement.
Communication
E-mail
Electronic mail ("e-mail") sent to us is not a secure method of communication, and we recommend you do not send information by e-mail. We may disregard e-mail we receive from you, or we may act on it, at our option.
Secure Message Service
The Bank has provided you with access to the “Secure Message” service. Secure Message provides you with a secured method to submit inquiries about your Account, request information on other banking services and otherwise communicate with us. Secure Message is accessible after you sign on with your Login Codes to a secure session of the Services. In order to increase security, we strongly recommend that you use Secure Message instead of e-mail. When we send you a message through Secure Message, you will need to login to the Service to view our reply. You may receive an e-mail alert whenever there is a new message reply from us within the Service.
Your e-mail or messages may be acted upon by us if received in a manner and in a time providing us a reasonable opportunity to act. Nevertheless, unless otherwise provided herein, e-mail or messages will not serve as a substitute for any requirement imposed on you to provide us with "written" notice.
You agree that information or messages made available to you via the Services will be deemed received by you when first posted on our website or made available to you. You agree to access the Service from time to time, in no event less than monthly, to access this information or the messages. If you fail to update or change an incorrect e-mail address or other contact information, you understand and agree that any e-mail shall nevertheless be deemed to have been provided to you if the e-mail was sent to the e-mail or other contact we have on file for you.
CSR Assist
In addition, you have an option that would allow you to give permission to a Fremont Bank customer service representative a limited view-only version of your Online Banking session to assist you in resolving any problems you may be experiencing with the Service.
Electronic Statements
Electronic statements offer you a convenient way to view, save and print your periodic statements. If you elect to receive electronic statements, we may discontinue sending paper statements and make periodic statements available to you in electronic form only. This includes, but is not limited to, ongoing disclosures currently provided on the back of your paper statement, notices posted as messages on the face of the statement, and all notices or other communications that accompany mailed statements. Each electronic statement will be available for your viewing, downloading or printing for a period of 36 months from the date that it is made available to you. You agree to review your electronic statements in a timely manner, just as you would paper statements, and to promptly notify us of any errors, unauthorized activity or other problems, as provided in our agreement with you. You will be deemed to receive electronic statements when they are made available to you. Any time periods within which you must notify us of any problems or errors reflected on your statement(s) will begin on the date we make the electronic statement available to you, regardless of when it is actually viewed by you. If you cannot access, print or view your electronic statements, you must contact us immediately at (866) 222-6304 to make alternate arrangements. Please see the Electronic Document Delivery Agreement and E-Sign Consent to Use Electronic Records and Signatures for other important information about electronic statements and our electronic communications with you. You agree to periodically logon and check on the delivery of new statements.
Personal Financial Management Programs
If the Service permits access by personal financial management programs ("Programs") (such as Quicken™) the Bank may charge a monthly service charge for accounts that use these Programs. The Bank's charges will be included in the Schedule of Fees and Charges and are subject to change from time to time. If you choose to gain access for any Program, when such functionality is available, you will be responsible for obtaining and maintaining the Program of your choice and for the payment of any fees charged by the Program provider in addition to any fees charged by Fremont Bank.
Electronic Funds Transfers
Electronic Check Conversion
You may authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to: (i) pay for purchases; and (ii) pay bills.
Transfer Limitations
For certain types of transactions/transfers from a money market or savings account, you are permitted to make no more than six transfers and withdrawals, or combination of them, per calendar month or statement cycle, to another account or to a third party by means of a preauthorized or automatic transfer, or telephonic (including data transmission) agreement, order or instruction, including by check, draft, debit card or similar order by you and payable to third parties. If you exceed these limits, we may impose a fee, close or convert your Account, limit your use of the Services, or any combination of the foregoing.
Transfer Records
Information on transfers to or from your accounts with us will be reflected on your periodic statements, will be available to you online, and can be obtained by calling (866) 222-6304. We do not provide any other notice of the receipt, transmittal or debiting of funds transfers.
Preauthorized Credits. If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can call us at (866) 222-6304 to find out whether or not the deposit has been made.
Periodic Statements. Except for Certificates of Deposit, you will get a monthly account statement unless there are no transfers in a particular month. In any case, you will get the statement at least quarterly.
Varying Preauthorized Transfers
If you have arranged in advance to make regular payments out of your account and they may vary in amount, the person you are going to pay will tell you, 10 days before each payment when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment or when the amount would fall outside certain limits that you set.
Our Liability for Failing to Make Transfers
If we do not complete an electronic fund transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for you losses or damages. There are some exceptions, however. We will not be liable, for instance:
If, through no fault of ours, the Eligible Transaction Account or External Account does not have enough available funds to complete the transfer;
The transfer would exceed the credit limit of your overdraft account;
The Service was not working properly and you knew or had been advised by us about the problem when you started the transaction;
The funds in your account are subject to legal process, an uncollected funds hold or are otherwise not available for withdrawal;
The information supplied by you or a third party is incorrect, incomplete, ambiguous or untimely;
We believe the transaction may not be authorized by you; and/or,
Circumstances beyond our control (such as, but not limited to, fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, telephone line disruption, network or system down time, or a natural disaster) or a rolling blackout prevent or delay the transfer despite reasonable precautions we have taken to avoid those circumstances.
Your Liability for Unauthorized Electronic Fund Transfers (Applicable to electronic fund transfers to or from a consumer account as provided under the EFTA and its implementing Regulation E)
Tell us AT ONCE if you believe any part of your Security Code, including your PIN or password, has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your account (plus your maximum overdraft line of credit, as applicable). If you tell us within two (2) Business Days after you learn of the loss or theft of any part of your Security Code, including your PIN or password, you can lose no more than $50 if someone used your Security Code without your permission. If you do NOT tell us within two (2) Business Days after you learn of the loss or theft of any part of your Security Code, including your PIN or password, and we can prove that we could have stopped someone from using the Security Code without your permission if you had told us, you could lose as much as $500.
If your statement shows transfers that you did not make, including those made by card, code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any funds you lost after the 60 days if we can prove that we could have stopped someone from taking said funds if you informed us in time. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
How To Stop Preauthorized Transfers From Your Account
If you have told us in advance to make regular payments out of your Account, you can stop any of these payments by writing to us at Fremont Bank, PO Box 5101, Fremont, CA 94537-5101 Attn: Consumer Services Center MS 2502-SA, or by calling us at (510) 723-5778 or (800) 359-BANK (2265) (from out of the local area).
On a Consumer Account we must receive your request either verbally or in writing at least three Banking Days before the scheduled date of any debit entry. We may at our discretion honor such a stop payment order received within such three Banking Day period. We shall have no liability or responsibility to any Originator, ODFI, or other Person having any interest in such entry for honoring a stop payment. (Applicable to electronic fund transfers to or from a consumer account as provided under the EFTA and its implementing Regulation E)
Regarding any debit entry initiated or to be initiated to a Non-Consumer Account we must receive your request at such time and in such a manner as to allow us a reasonable opportunity to act upon the stop payment prior to acting on the debit entry. We will take a verbal stop payment order for a period of 14 days unless the order is confirmed in writing within that 14 day period. A written stop payment order regarding any debit entry initiated or to be initiated to a Non-Consumer Account will remain in effect until the earliest of: (a) The withdrawal of the stop payment order by you; (b) the return of the debit entry; or, (c) six months from the date of the stop payment order, unless it is renewed in writing.
If you call, we may require you to put your request in writing and to provide us with a copy of your notice to the payee, revoking the payee’s authority to originate debits to your account, within 14 days after you call. If we do not receive the written confirmation within 14 days, we may honor subsequent debits to your account. For individual payments, your request should specify the exact amount (dollars and cents) of the transfer you want to stop, the date of the transfer, and the identity of the payee. Unless you tell us that future transfers to a specific recipient are to be stopped, we may treat your stop payment order as a request concerning the one transfer only. If you order us to stop one of these payments at least three business days before the transfer is scheduled and we do not do so, we will be liable for your losses or damages.
We will charge you a fee for each stop payment order you give. Refer to the Fees and Charges Section of this Agreement for fee details. A separate process will apply to the extent you wish to initiate check stop payment requests through the Services. Refer to "Check Stop Payment Services," above, for further details.
Our Liability for Failingto Stop Payment of Preauthorized Transfer
If you order us to stop one of these electronic payments within the time frames outlined above for both consumer and non-consumer account transactions, and we do not do so, we will be liable for your losses or damages.
In Case of Errors or Questions About Your Electronic Transfers (Applicable to electronic fund transfers to or from a consumer account as provided under the EFTA and its implementing Regulation E)
Call us at (866) 222-6304, or write us at: Fremont Bank, Attn: Customer Service Center, P.O. Box 5101, Fremont, CA 94537-5101, as soon as you can, if you think your statement is wrong or if you need more information about an electronic transfer listed on your statement. We must hear from you no later than 60 days after we sent you the FIRST statement on which the problem or error appeared.
Tell us your name and account number (if any).
Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
Tell us the dollar amount of the suspected error. In addition, it may be helpful if you provide us with any supporting documentation related to this error.
If you tell us orally, we may require you to send us your complaint or question in writing within 10 Business Days.
We will determine whether an error occurred within 10 Business Days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 Business Days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your account.
For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 Business Days to credit your account for the amount you think is in error.
We will tell you the results within three Business Days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may request copies of the documents that were used in the investigation.
Note: You may also initiate a dispute in Online and Mobile Banking for electronic fund transfers you believe have been made without your permission. Regardless of how you notify us of a dispute, in instances where you suspect a card transaction is unauthorized or fraudulent, we will disable your card and issue you a replacement. We may also close your account while we research your case.
Limitation on Financial Institution's Liability
You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Services. You acknowledge that Service fees have been established in contemplation of: (A) these limitations on our liability, (B) Your agreement to review statements, confirmations, and notices promptly and to timely notify us of any discrepancies or problems; and (C) Your agreement to assist us in any loss recovery effort.
In addition to our right to reject transactions as provided elsewhere in this Agreement and our other agreements with you, we will not be obligated to honor, in whole or in part, any transaction or instruction or Communication which:
Is not in accordance with any term or condition applicable to the relevant Service or Account;
We have reason to believe may not be authorized by you or any third person whose authorization we believe is necessary or involves funds subject to hold, dispute, restriction or legal process we believe prevents their withdrawal, transfer or availability;
Would result in us exceeding any limitation of our net funds position established pursuant to present or future Federal Reserve guidelines;
Would violate any applicable law, rule or regulation, or any guidance or directive of any federal or state regulatory authority;
Is not in accordance with any other requirement of our applicable policies, procedures or practices; or
We have reasonable cause not to honor for our or your protection.
Collection
If we initiate collection proceedings against you in an effort to recover any amounts owed, you agree to reimburse us for all costs and expenses, including attorneys' fees. "Attorneys' fees" includes reasonable charges for the time expended by in-house counsel.
Account Transfer Services
Internal Account Transfers
You may use the Service to transfer funds between your linked Fremont Bank accounts without a fee on either a one-time or recurring basis. You may also transfer funds to another Fremont Bank customers checking, savings or money market account using their e-mail address and last 4 digits of their account number. Transactions posted to your account as of a certain Business Day may not be reflected in account balances reported by the Service until the following Business Day.
Changing or Cancelling InternalAccountTransfers
Future scheduled and recurring Internal Account Transfers can be changed or cancelled up to 7:59PM on the Business Day prior to the date the transfer is scheduled to be made. A same-day Internal Account Transfer cannot be changed or cancelled after it has been submitted. To change or cancel a future scheduled or recurring transfer, follow the instructions in the Service. The cancel feature is located in the Online Activity Center for Single Transactions or Recurring Transfers sections. You may also call us at (866) 222-6304 to cancel a future scheduled or recurring transfer.
Scheduling InternalAccountTransfers
To initiate an Internal Account Transfer, you must provide the information prompted within the Service, including the account to be debited, the account to be credited, the transfer amount, and the Transfer Process Date. If the Transfer Process Date is made after the cut-off time (8:00PM) on a Business Day, the transfer will be posted as of the next Business Day. Future dated or recurring transfers scheduled for a weekend or a non-Business Day may be sent the following Business Day.
External Account Transfers Account to Account (“External Transfer”) Terms of Service Introduction
This Account to Account Transfer Terms of Service document (hereinafter "Agreement") is a contract between you and Fremont Bank (hereinafter "we" or "us") in connection with the Account to Account Transfer Service (as defined below) offered through our online banking site or mobile applications (the "Site"). This Agreement applies to your use of the Account to Account Transfer Service and the portion of the Site through which the Account to Account Transfer Service is offered.
Description of Account to Account Transfer Service
The Account to Account transfer service (the "Account to Account Transfer Service") enables you to transfer funds between your Account(s) that you maintain with us on the one hand, and your Account(s) that are maintained by other financial institutions, on the other hand.
Authorization and Processing
You represent and warrant that you are either the sole owner or a joint owner of the Eligible Transaction Account and the External Account and that you have all necessary legal right, power and authority to transfer funds between the Eligible Transaction Account and the External Account. If you are a joint owner of the Eligible Transaction Account, External Account, or both, then you represent and warrant that (i) you have been authorized by all of the other joint owners to operate such Accounts without their consent (including without limitation to withdraw or deposit any amount of funds to such Accounts or to even withdraw all funds from such Accounts); and (ii) we may act on your instructions regarding such Accounts without liability to such other joint owners. Further, you represent and warrant that the External Account is located in the United States.
When we receive a Transfer Instruction from you, you authorize us to (i) debit your Eligible Transaction Account and remit funds on your behalf to the External Account designated by you and to debit your applicable Account as described below in Section 9 (Account to Account Transfer Service Fees and Additional Charges); or, as applicable, to (ii) credit your Eligible Transaction Account and remit funds on your behalf from the External Account designated by you and to debit your applicable Account as described below in Section Account to Account Transfer Service Fees and Additional Charges. You also authorize us to reverse a transfer from the applicable Account if the debit is returned from the other Account in the transaction for any reason, including but not limited to nonsufficient funds.
It is your responsibility to ensure the accuracy of any information that you enter into the Account to Account Transfer Service, and for informing us as soon as possible if you become aware that this information is inaccurate. You may not use a P.O. Box as a postal address. We will make a reasonable effort to stop or recover a transfer made to the wrong Account once informed, but we do not guarantee such recovery and will bear no responsibility or liability for damages resulting from incorrect information entered by you.
Transfer Methods and Amounts
There are limits on the amount of money you can send or receive through our Account to Account Transfer Service. Your limits may be adjusted from time-to-time in our sole discretion. You may have the ability to log in to the Site to view your individual transaction limits. We or our Service Provider also reserve the right to select the method in which to remit funds on your behalf though the Account to Account Transfer Service, and in the event that your Eligible Transaction Account is closed or otherwise unavailable to us the method to return funds to you.
Transfer Cancellation Requests
You may cancel a transfer at any time until it begins processing (as shown in the Account to Account Transfer Service). We will, to the extent permitted by law, make reasonable attempts to return any unclaimed, refused, refunded, prohibited, or denied transfer to your Account that we debited for the funds transfer. If this is unsuccessful (for example, the Eligible Transaction Account has been closed) we will make reasonable attempts to otherwise return the funds to you.
Stop Transfer Requests
If you desire to stop any transfer that has already been processed, you must contact customer service for the Account to Account Transfer Service pursuant to In Case of Errors, or Questions About Your Electronic Transfers section above. Although we will make a reasonable effort to accommodate your request, we will have no liability for failing to do so. We may also require you to present your request in writing within 10 days. The charge for each request will be the current charge for such service as set out in the applicable fee schedule.
Account to Account Transfer Service Fees and Additional Charges
You are responsible for paying all fees associated with your use of the Account to Account Transfer Service. Applicable fees will be disclosed in the user interface for, or elsewhere within, the Account to Account Transfer Service or Site. Any applicable fees will be charged regardless of whether the Account to Account Transfer Service was used, except for fees that are specifically use-based. Use-based fees for the Account to Account Transfer Service will be charged against the Account that is debited for the funds transfer. There may also be charges for additional transactions and other optional services. You agree to pay such charges and authorize us to deduct the calculated amount from the applicable Eligible Transaction Account you hold with us or the Account that is debited for the funds transfer, depending on how such charges are described in the user interface for the Account to Account Transfer Service. Any financial fees associated with your standard deposit accounts will continue to apply. You are responsible for any and all telephone access fees and Internet service fees that may be assessed by your telephone and Internet service provider. Section 22 (Failed Or Returned Transfer Instructions) applies if you do not pay our fees and charges for the Account to Account Transfer Service, including without limitation if we debit the External Account for such fees, as described in this Section, and there are insufficient fees in the External Account; Section 22 (Failed Or Returned Transfer Instructions) should be interpreted as applying to the External Account, not just the Eligible Transaction Account, in such circumstances.
Refused Transfers
We reserve the right to refuse any transfer. As required by applicable law, we will notify you promptly if we decide to refuse to transfer funds.
Returned Transfers
In using the Account to Account Transfer Service, you understand transfers may be returned for various reasons such as, but not limited to, the External Account number is not valid. We will use reasonable efforts to research and correct the transfer to the intended Account or void the transfer and credit your Account from which you attempted to transfer funds. You may receive notification from us.
Notices to Us Regarding the Account to Account Transfer Service
Except as otherwise stated below, notice to us concerning the Site or the Account to Account Transfer Service must be sent by postal mail to: Fremont Bank, Attn: Customer Service Center, P.O. Box 5101, Fremont, CA 94537-5101. We may also be reached at (866) 222-6304) for questions and other purposes concerning the Account to Account Transfer Service. We will act on your telephone calls as described above in section In Case of Errors, or Questions About Your Electronic Transfers, but otherwise, such telephone calls will not constitute legal notices under this Agreement.
Notices to You
You agree that we may provide notice to you by posting it on the Site, sending you an in-product message within the Account to Account Transfer Service, e-mailing it to an e-mail address that you have provided us, mailing it to any postal address that you have provided us, or by sending it as a text message to any mobile phone number that you have provided us, including but not limited to the mobile phone number that you have listed in your Account to Account Transfer Service setup or customer profile. For example, users of the Account to Account Transfer Service may receive certain notices (such as notices of processed Transfer Instructions, alerts for validation and notices of receipt of transfers) as text messages on their mobile phones. All notices by any of these methods shall be deemed received by you no later than twenty-four (24) hours after they are sent or posted, except for notice by postal mail, which shall be deemed received by you no later than three (3) Business Days after it is mailed. You may request a paper copy of any legally required disclosures and you may terminate your consent to receive required disclosures through electronic communications by contacting us as described in Section Notices to Us Regarding the Account to Account Transfer Service above. We reserve the right to terminate your use of the Account to Account Transfer Service if you withdraw your consent to receive electronic communications.
Text Messages, Calls and/or E-mails to You
By providing us with a telephone number (including a wireless/cellular, mobile telephone number and/or e-mail address), you consent to receiving calls from us and our Service Providers at that number INCLUDING THOSE MADE BY USE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM ("ATDS"), and/or e-mails from us for our everyday business purposes (including identity verification). You acknowledge and agree that such telephone calls include, but are not limited to, live telephone calls, prerecorded or artificial voice message calls, text messages, and calls made by an ATDS from us or our affiliates and agents. Please review our Privacy Policy for more information.
Prohibited Transfers
The following types of transfers are prohibited through the Account to Account Transfer Service, and we have the right but not the obligation to monitor for, block, cancel and/or reverse such transfers:
Transfers to or from persons or entities located in prohibited territories (including any territory outside of the United States); and
Transfers that violate any law, statute, ordinance or regulation; and
Transfers that violate the Acceptable Use terms in Section 19 (Acceptable Use) below; and
Transfers related to: (1) tobacco products, (2) prescription drugs and devices; (3) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (4) drug paraphernalia; (5) ammunition, firearms, or firearm parts or related accessories; (6) weapons or knives regulated under applicable law; (7) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (8) goods or services that are sexually oriented; (9) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (10) goods or services that defame, abuse, harass or threaten others; (11) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (12) goods or services that advertise, sell to, or solicit others; or (13) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction; and
Transfers related to gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to, casino games, sports betting, horse or dog racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes; and
Transfers relating to transactions that (1) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or multi-level marketing programs, (2) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (3) are for the sale of items before the seller has control or possession of the item, (4) constitute money-laundering or terrorist financing, (5) are associated with the following "money service business" activities: the sale of traveler’s checks or money orders, currency dealers or exchanges, or check cashing, or (6) provide credit repair or debt settlement services; and
Transfers relating to tax payments and court ordered payments.
Except as required by applicable law, in no event shall we or our Service Providers be liable for any claims or damages resulting from your scheduling of prohibited transfers. We encourage you to provide notice to us by the methods described in Notices to Us Regarding the Account to Account Transfer Service section above of any violations of the Agreement generally.
Acceptable Use
You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Account to Account Transfer Service, regardless of the purpose of the use, and for all communications you send through the Account to Account Transfer Service. We and our Service Providers have the right but not the obligation to monitor and remove communications content that we find in our sole discretion to be objectionable in any way. In addition, you are prohibited from using the Account to Account Transfer Service for communications or activities that: (a) violate any law, statute, ordinance or regulation; (b) promote hate, violence, racial intolerance, or the financial exploitation of a crime; (c) defame, abuse, harass or threaten others; (d) include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (e) infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (f) impose an unreasonable or disproportionately large load on our infrastructure; (g) facilitate any viruses, trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (h) constitute use of any robot, spider, other automatic device, or manual process to monitor or copy the Account to Account Transfer Service or the portion of the Site through which the Account to Account Transfer Service is offered without our prior written permission; (i) constitute use of any device, software or routine to bypass technology protecting the Site or Account to Account Transfer Service, or interfere or attempt to interfere, with the Site or the Account to Account Transfer Service; or (j) may cause us or our Service Providers to lose any of the services from our internet service providers, payment processors, or other vendors. We encourage you to provide notice to us by the methods described in Section 12 (Notices to Us Regarding the Account to Account Transfer Service) above of any violations of the Agreement generally.
Failed or Returned Transfer Instructions
In using the Account to Account Transfer Service, you are requesting that we or our Service Provider attempt to make transfers for you from your Eligible Transaction Account. If the Transfer Instruction cannot be completed for any reason associated with your Eligible Transaction Account (for example, there are insufficient funds in your Eligible Transaction Account, or the Transfer Instruction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the transfer), the Transfer Instruction may or may not be completed. In certain circumstances, our Service Provider may either advance funds drawn on their corporate account or via an electronic debit, and in such circumstances will attempt to debit the Eligible Transaction Account a second time to complete the Transfer Instruction. In some instances, you will receive a return notice from us or our Service Provider. In each such case, you agree that:
You will reimburse our Service Provider immediately upon demand the amount of the Transfer Instruction if the transfer has been delivered but there are insufficient funds in, or insufficient overdraft credits associated with, your Eligible Transaction Account to allow the debit processing to be completed;
You may be assessed a late fee equal to one and a half percent (1.5%) of any unpaid amounts plus costs of collection by our Service Provider or their third-party contractor if the Transfer Instruction cannot be debited because you have insufficient funds in your Eligible Transaction Account, or the transaction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the transfer, or if the funds cannot otherwise be collected from you. The aforesaid amounts will be charged in addition to any NSF charges that may be assessed by us, as set forth in your fee schedule from us (including as disclosed on the Site) or your account agreement with us. You hereby authorize us and our Service Provider to deduct all of these amounts from your designated Eligible Transaction Account, including by ACH debit;
Service Provider is authorized to report the facts concerning the return to any credit reporting agency.
Mobile Subscriber Information
You authorize your wireless carrier to disclose information about your account, such as subscriber status, payment method and device details, if available, to support identity verification, fraud avoidance and other uses in support of transactions for the duration of your business relationship with us. This information may also be shared with other companies to support your transactions with us and for identity verification and fraud avoidance purposes.
Device Data
We may share certain personal information about you , who will compare and add device data and fraud data from and about you to a database of similar device and fraud information in order to identifying and blocking access to the applicable service or Web site by devices associated with fraudulent or abusive activity. We will not share with service providers any information that personally identifies the user of the applicable device.
Account to Account Transfer Service Termination, Cancellation, or Suspension
If you wish to cancel the Account to Account Transfer Service, you may contact us as set forth in Section Notices to Us Regarding the Account to Account Transfer Service above. Any transfer(s) that have begun processing before the requested cancellation date will be processed by us. You agree that we may terminate or suspend your use of the Account to Account Transfer Service at any time and for any reason or no reason. Neither termination, cancellation nor suspension shall affect your liability or obligations under this Agreement.
Password and Security
If you are issued or create any password or other credentials to access the Account to Account Transfer Service or the portion of the Site through which the Account to Account Transfer Service is offered, you agree not to give or make available your password or credentials to any unauthorized individuals, and you agree to be responsible for all actions taken by anyone to whom you have provided such credentials. If you believe that your credentials have been lost or stolen or that someone may attempt to use them to access the Site or Account to Account Transfer Service without your consent, you must inform us at once at the telephone number provided in Section Notices to Us Regarding the Account to Account Transfer Service above. See also Section Your Liability for Unauthorized Electronic Fund Transfers above regarding how the timeliness of your notice impacts your liability for unauthorized transfers.
Payment Services
Erroneous Transfer Instructions
You assume sole responsibility for accurately describing transfer amounts, dates, accounts, financial institutions, addresses and any other information required for your input by the system. We are not responsible for confirming such information, or for identifying or refusing to process duplicate transfer instructions. If you give us a transfer instruction that is incorrect in any way, you agree that we may charge your account for the transfer whether or not the error could have been detected by us. We are not obligated to detect or correct errors in your transfer instructions.
ACH Entries
To the extent electronic transfers are made through the Automated Clearing House Network ("ACH") they are subject to the rules of the ACH, and you agree to be bound by the Operating Rules of the ACH, including the rule making payment to the recipient provisional until receipt by the recipient's bank of final settlement of the credit transaction. If final settlement is not received, you will not be deemed to have paid the recipient the amount of the electronic transfer. Furthermore, you agree that any payment by us to you for any returned credit entry or credit reversal is provisional until receipt by us of final settlement for such entry. If final settlement is not received, we are entitled to a refund from you of the amount credited, and we may charge your account for the amount credited. We may refuse to permit the use of any amount credited for a credit reversal if we believe that there may not be sufficient funds in your account to cover charge back or return of such reversal.
Inconsistencies
If a beneficiary of a payment order is identified by both name and account number, payment may be made by us and by any other financial institution based on the account number even if the name and the account number are not consistent or identify different parties. If an intermediary bank or a beneficiary's bank is identified on a payment order by both name and identifying number, we and other financial institutions may rely on the identifying number even if the name and the identifying number are not consistent or identify different parties.
Payment Methods
We reserve the right to select the method in which to remit funds on your behalf. These payment methods may include, but may not be limited to, an electronic payment, an electronic check payment (where the check is drawn off our third party Service Provider's account), or a demand draft payment (where a negotiable instrument is created and drawn off of your Account). We do not guaranty when payments made by check will be delivered by the U.S. Postal Service. You are responsible for scheduling payments to be made in a timely manner. We are not responsible for delays in the postal system or automated clearing house, or for any action or omission by a recipient/payee. You may only transfer funds within the United States.
Account Authorization
When we receive a Payment Service instruction from you, you authorize us to debit your eligible Account for the amount of any such instruction plus any related fees in effect at the time you initiate the instruction, and to remit funds on your behalf. You acknowledge and agree that any applicable fees will be charged when we receive a Payment Service instruction from you, regardless of whether the payment order is ultimately completed. You also authorize us to credit your eligible Account for the receipt of payment orders, including but not limited to those payments returned to us from third parties to whom you sent payment orders and those payments that were cancelled and returned to you because the processing could not be completed. We will not be liable to you for crediting your eligible Account for incoming payment orders, regardless of whether you authorized the third party to send you the funds.
Text Messages, Calls and/or E-mails to You
By providing us with a telephone number (including a wireless/cellular, mobile telephone number and/or e-mail address), you consent to receiving calls from us and our Service Providers at that number and/or e-mails from us for our everyday business purposes (including identify verification). You acknowledge and agree that such telephone calls include, but are not limited to, live telephone calls, prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system from us or our affiliates and agents. You further consent to receiving text messages from us at that number, and/or e-mails from us for marketing purposes in connection with the Service and consistent with our Privacy Policy. Please review our Privacy Policy for more information.
Available Funds
You will need to have sufficient available funds in your designated eligible Account to cover the amount of your payment orders and applicable fees. You can initiate Payment Service instructions up to the available funds in your eligible Account, plus any linked credit or other overdraft facility (as applicable). Depending on the method used to submit your payment order, your Account may not be debited on the payment processing date (for example the, Scheduled Payment Date). Regardless of whether your Account is debited on the payment processing date or at a later time, you must continue to maintain sufficient available funds in your Account to cover the amount of the payment order until it is ultimately debited from your Account. We may place a hold on or charge your account for the payment or transfer amount as early as five Business Days before the scheduled payment or transfer. We may combine your payment amount with funds of other customers in an omnibus account that our vendor uses to process transactions.
You acknowledge and agree that, any applicable Payment Service fees and charges may be charged regardless of whether the Payment Service instruction is completed, unless the failure to complete the instruction is solely due to our failure.
Failed or Returned Payment Instructions
In using the Service, you are requesting us to attempt to make payments for you from your Eligible Transaction Account. If we are unable to complete the Payment Instruction for any reason associated with your Eligible Transaction Account (for example, there are insufficient funds in your Eligible Transaction Account, or the Payment Instruction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the payment), the Payment Instruction may or may not be completed. In certain circumstances, we will attempt to debit the Eligible Transaction Account a second time to complete the Payment Instruction. In some instances, you will receive a return notice from us. In each such case, you agree that:
You will reimburse us or our Service Provider immediately upon demand the amount of the Payment Instruction if we have delivered the payment but there are insufficient funds in, or insufficient overdraft credits associated with, your Eligible Transaction Account to allow us to complete the debit processing;
For any amount not reimbursed to us within fifteen (15) days of the initial notification, a late charge equal to one and a half percent (1.5%) monthly interest or the legal maximum, whichever rate is lower, for any unpaid amounts may be imposed by us or our Service Provider;
You may be assessed a fee by our Service Provider and by us if the Payment Instruction cannot be debited because you have insufficient funds in your Eligible Transaction Account, or the transaction would exceed the credit or overdraft protection limit of your Eligible Transaction Account, to cover the payment, or if we cannot otherwise collect the funds from you; the fee amount will be as set forth in your fee schedule from us (including as disclosed on the Site) or your account agreement with us. You hereby authorize us to deduct these amounts from your designated Eligible Transaction Account, including by ACH debit;
You will reimburse us and our Service Provider for any fees or costs we incur in attempting to collect any amounts from you; and
We and our Service Provider are authorized to report the facts concerning the return to any credit reporting agency.
Payment Cancellation Requests
Except to the extent otherwise provided in this "Payment Services" Section, as applicable you may cancel or edit any Payment Service instruction (including recurring payments) by following the directions within the Payment Service application. There is no charge for canceling or editing a Payment Service instruction. Once the Payment Service has begun processing a payment order it cannot be cancelled or edited.
Receiver Limitation
We reserve the right to refuse to pay any third party to whom you may direct a transfer or a payment. All payment and transfer recipient accounts must be maintained in the U.S. We will notify you if we decide to refuse to pay a third party designated by you. This notification is not required if you attempt to make a prohibited payment under this Agreement. This Agreement does not alter your liability or obligations that currently exist between you and any third party.
Returned Payments
In using the Payment Service, you understand that third parties and/or the United States Postal Service may return payments to us for various reasons such as, but not limited to, the third party's forwarding address expired; the third party's account number is not valid; the third party is unable to locate account; or the third party's account is paid in full. We will notify you of returned payment orders via the system.
Use of Vendors; Use of Information
We may use one or more vendor(s) to provide the Payment Service, and you understand that various financial intermediaries and their servicers may be involved in processing any one of your payment orders. These intermediaries may benefit from interest that accrues on payment orders between the time the originating account is debited and the receiving account is paid. Any information you provide may be used by us or any of these other parties to complete or otherwise deal with your transaction or comply with any laws, rules or regulations. If there is a dispute between you and us, or either of us and any other person (including any merchant, financial institution or other intended or actual recipient of any payment order), you authorize us to obtain information regarding you, your accounts and your obligations (or the absence of them) from any party that was involved in the transaction or that might otherwise assist in the resolution of the dispute or problem. This may include financial and other information.
Loan Account Services
Generally, the loan account services ("Loan Account Service(s)") include your ability to initiate linked loan Account advances and payments. You will also be able to view your recent linked loan Account payment history, insurance and tax information.
Advances and payments
You may use these features to facilitate advances and payments from or to your linked loan Account ("Loan Transfer(s)"). When using the Loan Account Services ("Service"), you must designate the deposit Account ("Loan Transfer Deposit Account") to or from which the Loan Transfers are to be applied. The Loan Transfer Deposit Account may include an eligible deposit Account you maintain with us or an external account (payments only) that you maintain with your other financial institution. You must not use the Loan Account Service to transfer funds to or from an account that you do not own. Transactions posted to your account as of a certain Business Day may not be reflected in account balances reported by the Loan Account Service until the following Business Day. Information on transfers to or from your accounts with us will be reflected on your periodic statements, will be available to you online, and can be obtained by calling Loan Customer Service at (877) 693-6898.
Sufficient Funds; Payment Account Ownership
You represent that you have sufficient available funds in your Loan Transfer Deposit Account to facilitate a loan Account payment, also that your advance on the loan Account is permitted pursuant to the underlying loan agreement.
One-Time Transfer
Loan Transfers can be made in two ways, on a one-time or recurring basis. One-time Loan Transfers may be immediate or scheduled for a future processing date ("Processing Date"). If you select a Processing Date that is not a Business Day or submit your Loan Transfer instruction after the Loan Transfer cutoff hour for that date, then the Processing Date will be the next Business Day. One-Time Transfer instructions, once scheduled, may be cancelled through online banking up to 7:59PM on the transfer Processing Date.
Automatic Loan Payments
You can use the Loan Account Service to schedule recurring Automatic Loan Payments ("ALP") to be processed from the Loan Transfer Deposit Account you identify on a specific Processing Date. The ALP must be for the "Regular Loan Payment" or a "Fixed Amount," (which must include your regular monthly and/or current payment amount due). However, if a Processing Date is schedule to occur on a non-Business Day, then that ALP Processing Date may be the next Business Day. Recurring Automatic Loan Payments ("ALP") must be cancelled or changed at least 3 Business Days before your loans current payment date.
Scheduling Payments in Advance of the Due Date
You are responsible for ensuring that you initiate a Loan Transfer payment instruction in time for the payment to be received by us before its due date (without taking into account any grace period) ("Due Date"). We are not responsible for any damages, costs or fees you may suffer if you do not allow sufficient time between the Processing Date and the Due Date.
Erroneous Transfer Instructions
You assume sole responsibility for accurately describing transfer amounts, dates, accounts, financial institutions, addresses and any other information required for your input by the system. We are not responsible for confirming such information, or for identifying or refusing to process duplicate transfer instructions. If you give us a Loan Transfer instruction that is incorrect in any way, you agree that we may charge your account for the transfer whether or not the error could have been detected by us. We are not obligated to detect or correct errors in your Loan Transfer instructions.
Notice of Returned ACH Loan Payments
We may notify you by phone or electronic transmission, including e-mail, or U.S. Postal Service of the receipt of a returned Loan Transfer from the ACH no later than one (1) Business Day after the Business Day of receipt. Except for a Loan Transfer retransmitted by you in accordance with the requirements of the Loan Account Service, we shall have no obligation to retransmit a returned Loan Transfer if we complied with the terms of this Agreement with respect to the original Loan Transfer request.
ACH Entries; Provisional Credit
To the extent Loan Transfers are made through the Automated Clearing House Network ("ACH") they are subject to the rules of the ACH, and you agree to be bound by the Operating Rules of the ACH, including the rule making payment to the recipient provisional until receipt by the recipient's bank of final settlement of the credit transaction. You agree that any credit by us to you for any Loan Transfer is provisional until we have received final settlement for such Loan Transfer. We may delay availability of provisional credit at our discretion. If final settlement is not received, we are entitled to and you agree to pay a refund of the amount credited; we may charge your account for the amount due. We may refuse to permit the use of any amount credited for a credit reversal if we believe that there may not be sufficient funds in your account to cover charge back or return of such reversal.
Inconsistencies
If a beneficiary of a payment order is identified by both name and account number, payment may be made by us and by any other financial institution based on the account number even if the name and the account number are not consistent or identify different parties. If an intermediary bank or a beneficiary's bank is identified on a payment order by both name and identifying number, we and other financial institutions may rely on the identifying number even if the name and the identifying number are not consistent or identify different parties.
Payment Methods
We reserve the right to select the method in which to facilitate Loan Transfer requests. These payment methods may include, but may not be limited to, an electronic payment, an electronic check payment (where the check is drawn off our third party service provider's account), or a demand draft payment (where a negotiable instrument is created and drawn off of your Account). We do not guaranty when payments made by check will be delivered by the U.S. Postal Service. You are responsible for scheduling payments to be made in a timely manner. We are not responsible for delays in the postal system or automated clearing house, or for any action or omission by a recipient/payee. You may only transfer funds within the United States.
Mobile Banking Services
Mobile Banking provides wireless access to the Services, as well as the ability to deposit checks to your linked Accounts ("Mobile Deposit"). Some Services may not be accessible while using your wireless access device ("Wireless Access Device"). Additional Mobile Banking Services may be added to or removed by us from time to time. Some Mobile Banking Services may not be available without special application to and approval by us, may be limited to specific types of accounts, and may require you to agree to additional terms and conditions which may be presented online at the time the feature is activated.
Access and Use
Once you have enrolled for Mobile Banking, designated accounts linked to your Security Codes will be accessible through your Wireless Access Device. Additionally, to access and utilize Mobile Banking you will need a compatible Wireless Access Device. Your Wireless Access Device must be Internet enabled and connected to the Internet through your mobile communications service provider. In order to properly use Mobile Banking, you should review and follow the instructions provided on our website, or otherwise in our online banking system. You agree to accept responsibility for learning how to use Mobile Banking in accordance with the online and mobile application instructions and agree that you will contact us directly if you have any problems with Mobile Banking. You also accept responsibility for making sure that you, and anyone acting on your behalf, know how to properly use the Wireless Access Device. If you obtain a different Wireless Access Device, you will be required to download and install software to that different Wireless Access Device, under the same terms set forth in this Agreement, as amended. You agree to delete all such software from your Wireless Access Device promptly if the licenses or this Agreement terminate for any reason. We reserve the right to change, add to, or terminate services with our third-party software providers, to substitute different software providers, and to enter into or arrange for the provision Mobile Banking Services by other licensors and third-parties.
You agree to exercise due care in preserving the confidentiality of any user identification, password, test key, or other code or authentication method provided by us or otherwise required for use of Mobile Banking and shall further prevent the use of Mobile Banking by unauthorized persons. You assume full responsibility for the consequences of any missing or unauthorized use of or access to Mobile Banking or disclosure of any confidential information or instructions by you, or anyone acting on your behalf.
Hardware and Software
You are responsible for obtaining and maintaining the compatible Wireless Access Device required to use Mobile Banking. To the extent we, in our sole discretion, provide any hardware in conjunction with Mobile Banking, the hardware will at all times remain the sole property of Fremont Bank. Upon termination of Mobile Banking, you must promptly return any hardware that we provided to you.
To the extent Mobile Banking involves our having granted you software license ("software") usage rights, such grant shall be a personal, non-exclusive, non-transferable right to access and use Mobile Banking in connection with your use in accordance with this Agreement. Mobile Banking does not involve the sale of software. Nothing in this Agreement will entitle you to receive technical support, telephone assistance regarding the software, or updates to software. Upon termination, you agree to immediately destroy all copies of any software which had been downloaded to your Wireless Access Device or otherwise in your possession and control as part of your access and use of Mobile Banking. You acknowledge that your license to use any software that may be required for Mobile Banking is directly from the software provider, pursuant to the license agreement that appears when any such software is electronically accessed by you or otherwise provided to you. By enrolling in portions of Mobile Banking relating to those software systems and programs, and by downloading and installing Mobile Banking software, you will be evidencing your acceptance of the terms and conditions of those licenses. We may also condition your use of Mobile Banking upon you affirming such licenses by the use of "Accept" or similar dialogue box acknowledgements, or by other affirmative or use-based acknowledgement and agreement systems.
This portion of the agreement sets forth the terms and conditions for use of the Mobile Banking Services ("Services") and any related Software ("Software") provided by Fremont Bank ("the Bank") combined with your handheld's text messaging or Web capabilities. Messaging and data charges from your telephone carrier may apply. The Bank recommends you review your contract with your individual mobile carrier service before enrolling in Services.
The Bank offers our clients mobile access to their account information (e.g., for checking balances and last transactions) over the Short Message Service (SMS), as well as the option to set up alerts for their accounts (e.g., low balance alerts). The Bank also offers additional mobile banking functions like bill payment and internal and external transfers, to clients using a downloadable app. Enrollment requires you to be an owner of a Fremont Bank account, identification of the user's banking relationship with the Bank as well as a mobile phone number with either or both a text plan and data plan with a carrier, or Wireless Internet access depending on which Services and Software you choose to use. Additionally, users may select the type of alerts and other preferences which will determine, together with their account data, the frequency of alerts delivered to the user. This program will be ongoing. Standard messaging charges from your mobile carrier service apply. Users will be allowed to opt out of this program at any time. The Bank is not obligated to monitor for the receipt of any alerts, nor is the Bank responsible for missed alerts due to service interruption or changes to your Wireless Access Device. The Bank does not guarantee the timely delivery, execution, or the transmission of content provided by your mobile carrier service. The Bank will be unable to review or to respond to any attempted reply to any alert. Online banking is required in order to use some optional features of Services and Software such as enrollment to bill payments and Zelle. Please refer to the applicable Terms and Conditions for Bill Payment/Zelle services prior to enrollment for Online Banking and/or Bill Payment. The Bank will not be responsible for the delay of notification, accuracy of information or actions taken or not taken by you as a result of an Alert. You or the Bank may terminate alerts at any time without prior notification.
If you choose to use the Transfer or Bill Pay functions of Services and Software when you access Services using a Wireless Access Device, you recognize that any requirement to verify two signatures on checks, if such requirement exists on your Fremont Bank accounts, does not apply to electronic transfers and you release the Bank from liability when making such transfers or payments. This means that any person who is authorized to act as a signer on your bank accounts shall be authorized by you to individually make electronic or telephone transfers, even though that persons authority to transfer or withdraw funds from your bank accounts by some other means (e.g., by check) must be exercised jointly with one or more other persons.
By accepting these terms and conditions and by using Services and Software, you acknowledge awareness of these best practices and your intention to follow these basic steps to safeguard your mobile banking capabilities:
Lock Wireless Access Device using a password, if this is a feature of your device.
Disable the Bluetooth feature when not in use, if this is a feature of your device.
Download only from sources you deem trustworthy.
Use the remote-wipe software or device feature to clear the data on your device in case you lose it.
Activate bank alerts that can inform you when large amounts are withdrawn from your bank accounts.
In the event you do not uphold these terms and conditions, you agree and acknowledge that the Bank may cancel your Service at any time without prior notice. The Bank may at any time, without prior notice suspend temporarily or permanently terminate Services and Software due to inappropriate use or activity, or if your access to your account(s) is restricted by the Bank or any other party for any reason. The Bank will automatically terminate the Services and Software should you cease to maintain an eligible account with the Bank.
CONTACT US AT ONCE if you believe your Wireless Access Device has been lost, stolen or used without your authorization, or otherwise compromised. You assume full responsibility for the security and confidentiality of your mobile handheld device, mobile phone number, passwords and personal identification numbers used to access Services and Software. You can use Services and/or Software seven days a week, 24 hours a day. At certain times, some or all Services may not be available due to system maintenance or other reasons beyond the control of the Bank or any service provider. The Bank is not responsible for continued access outside your mobile phone carrier’s coverage area. The Bank may inform you from time to time about changes to the way you should access or operate within the Services. You agree to observe all such changes and that the Bank is not responsible for any interruption, loss or liability that may occur should you or your mobile handheld device not support such changes.
Privacy and User Information
You acknowledge that in connection with your use of the Services, the Bank and its affiliates and service providers, and their affiliates, may receive and may share with one another as part of providing these Services and Software names, domain names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by you or from other sources in connection with the Services or Software (collectively "User Information"). The Bank and its affiliates and service providers will maintain reasonable safeguards to protect the information from unauthorized disclosure or use, but reserve the right to use and disclose this information as reasonably necessary to deliver the Services and as otherwise permitted by law, including compliance with court orders or lawful instructions from a government agency, to protect the personal safety of subscribers or the public, to defend claims, and as otherwise authorized by you. The Bank and its affiliates and service providers also reserve the right to monitor use of the Services and Software for purposes of verifying compliance with the law, these terms and conditions and any applicable license, but disclaim any obligation to monitor, filter, or edit any content.
Restrictions on Use
You agree not to use the Services and Software in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, "spam," and import/export laws and regulations, including the U.S. Export Administration Regulations. Without limiting the foregoing, you agree that you will not use the Services and Software to transmit or disseminate: (i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom you do not otherwise have a legal right to send such material; (ii) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its clients or subscribers; (iii) material or data, that is illegal, or material or data, as determined by the Bank (in its sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of the Bank or any third-party service provider involved in the provision of the Services; or (iv) material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier; (v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (vi) any material or information that is false, misleading, or inaccurate; (vii) any material that would expose the Bank, any third-party service provider involved in providing the Services, or any other third party to liability; or (viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of the Bank or any third party. You agree that you will not attempt to (i) access any Software or Services for which your use has not been authorized; or (ii) use or attempt to use a third party’s account; or (iii) interfere in any manner the provision of the Services or Software, the security of the Services or Software, or other clients of the Services or Software, or otherwise abuse the Services or Software.
Touch/Face ID™ for Mobile Banking
Touch/Face ID is an optional sign-in method for Mobile Banking that is currently available for most Apple® devices that have a fingerprint of face scanner. To use Touch/Face ID, you will need to save your fingerprint/face by going to "Settings > Touch/Face ID & Passcode" on your Apple device to complete the setup (for more help with fingerprint/face scanning, contact Apple support at apple.com/support). Fingerprints/faces are stored on your device only and the Bank never sees or stores your fingerprint/face information. You acknowledge that by enabling Touch/Face ID, you will allow anyone who has a fingerprint/face stored on your device access to your personal and payment account information within Mobile Banking. We reserve the right to suspend or disable this feature at any time. Touch/Face ID can only be associated with one Mobile Banking username at a time on a device. If your device doesn’t recognize your fingerprint/face, you can sign in using your password. To use Touch/Face ID for Mobile Banking on multiple devices, you will need to set it up for each device. You can enable or disable Touch/Face ID anytime from the Services menu within Mobile Banking. Apple and Touch/Face ID are trademarks of Apple Inc. Currently, fingerprint/face sign-in for Fremont Bank Mobile Banking is only available on compatible iOS devices.
Fingerprint/Face Login for Mobile Banking
Fingerprint/Facial Recognition Login is an optional fingerprint/face sign-in method for Mobile Banking that may be available for certain Android® mobile devices that have a built-in fingerprint/face scanner. To use Fingerprint/Face Login, you will need to first save your fingerprint/face on your mobile device (for more help with fingerprint/face scanning, contact the manufacturer that supports your mobile device). Fingerprints/faces are stored on your device only and the Bank never sees or stores your fingerprint/face information. You acknowledge that by enabling Fingerprint/Face Login, you will allow anyone who has a fingerprint/face stored on your device access to your personal and payment account information within Mobile Banking. We reserve the right to suspend or disable this feature at any time. Fingerprint/Face Login can only be associated with one Mobile Banking username at a time on a device. If your device does not recognize your fingerprint/face, you can sign in using your standard login credentials (e.g. password). To use Fingerprint/Face Login for Mobile Banking on multiple devices, you will need to set it up for each device. You can enable or disable Fingerprint/Face Login anytime within Mobile Banking. Android is a trademark of Google Inc.
Mobile Deposit
The Mobile Deposit Services enables you to use a software application together with your Wireless Access Device to create electronic images of the front and back of certain Original Checks (defined below) and transmit those images and other information, including, without limitation, information captured from the magnetic ink character recognition ("MICR") line, to us for review and processing in accordance with this Agreement.
Definitions
In addition to the terms otherwise defined in this Agreement, the following terms will have the meaning provided in this "Mobile Deposit" Section:
"Check" means an Original Check, as defined in Regulation CC.
"Endpoint" means any Federal Reserve Bank, financial institution, local clearing house, courier or other entity or location for the delivery of cash letters or other presentment of Imaged Items or Substitute Checks.
"Imaged Item" means the digitized image of a Check that is created by you and transmitted to us using the Mobile Deposit Service.
"Image Exchange Item" means a digitized image of an Item cleared and settled directly with a Payer Financial Institution without conversion to a Substitute Check.
"Item" means a Check that is payable on demand, drawn on or payable through or at an office of a United States Financial Institution and payable or indorsed to you, and includes Original Checks, Substitute Checks and Image Exchange Items. Such term does not include Non-cash Items or Items payable in a medium other than United States money.
"Mobile Deposit Services" means the Mobile Deposit Services described in this Agreement, to be provided by us to you to enable the processing of Items digitally as Image Exchange Items through image exchange networks or through creation of Substitute Checks and presentment to established Endpoints, including collectively the procedures, protocols, and software used by us and its licensors and contractors in connection with the electronic processing of Items.
"Non-cash Item" means an Item that would otherwise be an Item, except that: (i) a passbook, certificate or other document is attached; (ii) it is accompanied by special instructions, such as a request for special advice of payment or dishonor; (iii) it consists of more than a single thickness of paper, except an Item that qualifies for handling by automated check processing equipment; or (iv) it has not been preprinted or post-encoded in magnetic ink with the routing number of the Payor Financial Institution.
"Non-qualifying Item" means Non-cash Items, Items payable in a medium other than United States money, currency, warrants, Items payable to third parties, Items payable to joint payees (unless payable to the payees alternatively and deposited into an account in the name of all payees), drafts or remotely created checks as defined by the UCC and Regulation CC, respectively, Items that are stale dated by six months or more or postdated, savings bonds, Items payable to "cash," or "holder," Substitute Checks, non-negotiable Items, Items that are payable through drafts, Items that have been returned unpaid for any reason and any Item that exceeds your transaction limitations as established by us from time to time.
"Original" with respect to a Check means the first paper Item issued with respect to a particular payment transaction.
"Payor Financial Institution" means the United States Financial Institution ordered in an Item to make payment to the payee(s) named on the Item.
"Regulation CC" means 12 C.F.R. Part 229, as it may be amended from time to time.
"Substitute Check" means a paper reproduction of an Item that satisfies the requirements and definition of "substitute check" set forth in Regulation CC.
"UCC" means the Uniform Commercial Code as enacted and amended in California.
"United States Financial Institution" means (i) any person, located in the United States, engaged in the business of banking; (ii) a Federal Reserve Bank; (iii) a Federal Home Loan Bank; and (iv) to the extent it acts as a payor, the U.S. Treasury, the U.S. Postal Mobile Deposit Service, or a State or local government.
Your Responsibilities
In connection with the Mobile Deposit Services, you agree to comply with the following:
Each processed Imaged Item must be transmitted in compliance with the terms and conditions of this Agreement;
The Imaged Item is a digitized image of the front and back of the Original Check and accurately represents all of the information on the front and back of the Original Check as of the time you converted the Original Check to an Imaged Item;
The Imaged Item contains all indorsements applied by parties that previously handled the Original Check in any form for forward collection or return;
There will be no duplicate presentment of a Check in any form, including as a digitized image, as a paper negotiable instrument or otherwise and you will be liable for and otherwise assume responsibility for any such duplicate presentment of any Check. You agree to indemnify and defend us against any and all claims, causes of action or demands arising out of or directly or indirectly related to the duplicate presentment of any Check;
Except as otherwise specifically disclosed in writing to us, you are not now engaged, and will not during the term of this Agreement engage, in any business that would result in you being or becoming a "money service business" as defined in the Federal Bank Secrecy Act and its implementing regulations related to the use of the Mobile Deposit Service;
You will not engage in any activity directly or indirectly related to the use of the Mobile Deposit Service that is illegal or fraudulent;
You will only submit Checks for processing to us that meet the definition of "Item" as provided in this Agreement and will ensure that the Items scanned meet the standards for image quality established by the American National Standard Institute (ANSI) required by Regulation CC, or other standards established or required by us or applicable law, as amended from time to time. You will not process any Non-qualifying Items. Our processing of any Non-qualifying Items shall not constitute a waiver by us or obligate us to process such Non-qualifying Items in the future. You agree that we may discontinue processing of Non-qualifying Items at any time, without cause or prior notice;
You will not attempt to scan and transmit to us any third party checks, or any Item which is drawn on a deposit account of yours with us or any other financial institution, or a deposit account of any business entity of which you are a principal, officer or authorized signer;
You will not attempt to scan and transmit to us any previously truncated and reconverted Substitute Check. Any previously truncated and reconverted Substituted Check must be physically deposited with us. Notwithstanding the foregoing, we may redeposit any returned Substitute Check or Image Exchange Item consistent with the terms of the deposit account agreement;
You will (i) ensure that Items are restrictively indorsed or otherwise processed to permit only financial institutions to acquire rights of a holder in due course in the collection process of Items, (ii) handle, process, maintain and destroy Original Checks as set forth in this Agreement and in the supporting documentation, and (iii) ensure that no financial institution (depositary, collecting or payor), drawee, drawer or endorser receives presentment or return of, or otherwise is charged for an Item more than once in any form;
You will balance the dollar amount of each deposit to the sum of Checks prior to transmitting to us;
You will: (i) maintain a daily control record of all Checks, including transaction counts and dollar amounts; and (ii) balance transactions transmitted from the previous day and immediately notify us of any error or discrepancy discovered;
You shall be responsible for verifying our receipt of your transmission(s) by verifying that deposits have been posted to the appropriate accounts, in addition to cooperating with us in any investigation and resolving any unsuccessful or lost transmissions;
You shall be responsible for installing and implementing any changes and upgrades to the Mobile Deposit Service as required by us within 5 days to ensure compliance with regulatory changes or developments, or to protect the integrity and security of the Mobile Deposit Services. You will ensure that your Wireless Access Device is clean and operating properly, and inspect and verify the quality of images and ensure that the digitized images of Items are legible for all posting and clearing purposes;
You agree to indicate that the Item has been deposited via the Mobile Deposit Service by a) endorsing the back of the item before capturing with “Mobile Deposit to Fremont Bank” and b) writing the word "Processed," the phrase, "mobile deposit XX/XX/XX (date)," or similar on the front of the Item, once the Check has been scanned and transmitted. If not directed otherwise by us, you will store Original Checks in a safe and secure environment for not more than fourteen (14) Business Days after such Item has been digitized and processed. You shall take appropriate security measures to ensure that: (a) that the information contained on such Original Checks or on any corresponding Imaged Items are not disclosed to third parties; (b) such Checks will not be duplicated or scanned more than one time; and (c) such Checks will not be re-deposited or renegotiated in any form. You will promptly (but in any event within 5 Business Days) provide any retained Original Check (or, if the Original Check is no longer in existence, a sufficient copy of the front and back of the Original Check) to us as requested to aid in the clearing and collection process to resolve claims by third parties with respect to any Item or as we otherwise deem necessary. You will use a commercially reasonable method which is consistent with any requirements of Regulation CC and the Bank to securely and permanently destroy Original Checks after your retention period has expired;
You understand and agree that an Item that is not paid by a Payor Financial Institution, or is otherwise returned for any reason, will in our discretion be: (i) re-presented to the Payor Financial Institution; or (ii) returned to you and your account charged for the amount of the Item plus any associated fees as disclosed in our applicable fee schedule, which may be changed from time to time in our discretion. You agree that Items may be returned as Image Exchange Items, rather than Substitute Checks. Our right to charge your account will apply without regard to whether the Item is timely returned to us or whether there is any other claim or defense that the Item has been improperly returned to us. If the maker of a Check or another third party makes a claim against us or seeks a re-credit with respect to any Check processed through this Service, we may provisionally freeze or hold aside a like amount in your account pending our investigation and resolution of the claim.; and
You agree to make all encoding, transfer, presentment and other warranties made under applicable law as we are deemed to make under applicable law, including without limitation those under the UCC, Regulation CC and the rules of any image exchange network.
Processing
For all Imaged Items processed pursuant to this Agreement, either: (i) digitized images will be converted to Substitute Checks and presented for payment to established Endpoints, or (ii) Imaged Exchange Items will be presented for payment through image exchange networks. We may in our sole discretion determine the manner of processing. Your account will be provisionally credited upon our acceptance of Imaged Items for deposit which are received by us from you through the Mobile Deposit Service.
We will process any returned Items in accordance with applicable law and the deposit account agreement. Availability of credit from Items processed under this Agreement will be subject to our then current availability schedule, which may be amended by us from time to time. We may at our sole option, with or without cause, at any time and from time to time, refuse to process any Imaged Items. We may from time to time establish and amend exposure limitations and assign them to you.
Notwithstanding any provisional credit that may be applied to an account in connection with your transmitted Imaged Items, Imaged Items processed for deposit through the Mobile Deposit Service will be deemed to have been received by us for deposit at the time the Imaged Items are actually received and accepted at the location where we or our designated agent posts the credit to the account. A deposit of Imaged Items will be deemed to have been received and accepted by us for deposit when all of the following have occurred: (i) we have preliminarily verified that the image quality of the Imaged Item is acceptable to us in our discretion, all Item information is complete and the deposit totals are balanced to the Item information provided for the deposit; and (ii) we have successfully performed all further validation routines with respect to the deposit. Notwithstanding the foregoing, Imaged Items received by us for deposit may be rejected by us in our sole discretion.
You agree to view the images of each scanned Item that is sent to us. If Item information received by us is not complete or cannot be processed by us for any reason, we may reject the Imaged Item, notwithstanding any transmission confirmation and charge the amount back against any provisional credit to your account. You will be responsible for verifying our receipt of your transmissions by verifying that deposits have been posted to your account.
If an Imaged Item is not accepted for deposit, you may then submit the Original Check to us for processing or contact the maker to reissue the Check. If you submit the Original Check for processing, we reserve the right to refuse to process the Check for deposit and presentment to the Payor Financial Institution and may instead require you to have the maker reissue the Check.
Reserves; Security Interest; Held Funds
In addition to any other rights we may have under this Agreement and otherwise with regards the accounts of yours, we may hold and use funds in any account following termination of this Agreement for such time as we reasonably determine that any Item processed by us prior to termination may be returned, charged back or otherwise a cause for any loss, liability, cost, exposure or other action for which we may be responsible. Without limitation, you recognize that under the UCC, Regulation CC, the Electronic Check Clearing House Organization TM ("ECCHO") Rules (as applicable), and the rules of any image exchange network, our representations and warranties with regards to Image Exchange Items and Substitute Checks may expose us to claims for several years following processing of the Image Exchange Item or Substitute Check.
Your Indemnification Obligation
In addition to any indemnification obligations you have under the Agreement, and except to the extent expressly prohibited by applicable law, you agree that you will indemnify and hold us harmless against any and all third party suits, proceedings, claims, demands, causes of action, damages, expenses (including reasonable attorneys' fees and other legal expenses), liabilities and other losses that result from or arise out of: (i) any fine, penalty or sanction imposed on us by, any clearing house, or any governmental entity, arising out of or connected with any Imaged Item processed by us for you or at your instruction; (ii) actions by third parties, such as the introduction of a virus that delay, alter or corrupt the transmission of an Imaged Item to us; (iii) any loss or corruption of data in transit from you to us; or (iv) any claim by any recipient of a Substitute Check corresponding to a Check processed by you under this Agreement, that such recipient incurred loss due to the receipt of the Substitute Check instead of the Original Check.
Our Liability
In addition to our limitations on liability that may be stated elsewhere in the Agreement and the deposit account agreement, and except to the extent prohibited by applicable law or regulation, we will not be liable to you for any refusal of a Payor Financial Institution to pay an Image Exchange Item or Substitute Check for any reason (other than our breach of contract, gross negligence or willful misconduct), including without limitation, that the Original Check, Image Exchange Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature.
Relationship to Third Party Agreements
You agree that, when you use Mobile Banking Services, you remain subject to the terms and condition of your existing agreements with any unaffiliated service providers, including, but not limited to your mobile service provider. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of Mobile Banking (such as data usage or text messaging charges imposed on you by your mobile service provider), and you agree to be solely responsible for all such fees, limitations and restrictions. You also agree that only your mobile service provider is responsible for its products and services. Accordingly, you agree to resolve any problems pertaining to your Wireless Access Device or mobile services with your provider directly.
Security of Data in Transition and Storage
You expressly acknowledge that any wireless access to your accounts may not be secure and, as such, you assume the risk associated with unauthorized access to Mobile Banking and any information contained therein, resulting from such wireless connectivity. You assume all risk that any information you download or otherwise stored on your Wireless Access Device may be accessed by unauthorized third parties. Without limiting the foregoing, you acknowledge that your Wireless Access Device may become subject to unauthorized tracking, "hacking" or other manipulation by spyware, viruses or other malicious code ("malware"). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk.
We are not responsible for the security and confidentiality of information when you: (i) use wireless connections to download your account information, in which case you acknowledge such connection may permit other persons to access the information being downloaded, or (ii) allow other persons access to your Wireless Access Device. You agree that any account information that you download is done at your own risk, and you are solely responsible for any damage that might occur to the electronic device to which you download any information, or any loss or corruption of data that might occur as a result of the downloading or its storage on an electronic device.
YOU AGREE TO TERMINATE MOBILE BANKING, OR DISABLE YOUR REGISTERED WIRELESS ACCESS DEVICE FROM MOBILE BANKING IMMEDIATELY IN THE EVENT YOUR REGISTERED DEVICE BECOMES LOST, STOLEN OR IS NO LONGER IN USE BY YOU.
Alerts Terms and Conditions
The following Alerts Terms and Conditions ("Alerts Terms of Use") only apply to the Alerts feature (as defined below). If Alerts are not available to you, then this Alerts Terms of Use does not apply. To the extent there is any conflict between the terms of the Agreement and this Alerts Terms of Use with respect to Alerts, then the terms in this Alerts Terms of Use shall apply.
Alerts
Your enrollment in the Service includes enrollment to receive transaction alerts and notifications (“Alerts”). Alerts are electronic notices from us that contain transactional information about your Fremont Bank account(s). Alerts are provided within the following categories:
Mandatory Alerts provide you with important account notifications, such as information about changes to your Online Banking password, PIN, or login information. You do not have the option to suppress these Mandatory Alerts.
Account Alerts provide you with notification of important account activities or when certain changes are made to your Service accounts. These Alerts are automatically activated for you. Although you may suppress these Account Alerts, we strongly recommend that you do not do so because they provide important information related to your Service accounts.
Additional Alerts must be activated by you to be enabled. These Additional Alerts can be accessed from the More menu within Mobile Banking.
Account Alerts and Additional Alerts must be managed and/or added online through the Service. We may add new Alerts from time to time, or cancel old Alerts. We usually notify you when we cancel Alerts, but are not obligated to do so. We reserve the right to terminate its Alerts service at any time without prior notice to you.
Methods of Delivery
We may provide Alerts through one or more channels (“EndPoints”): (a) a Wireless Access Device, by text message; (b) a Wireless Access Device, by push notification; (c) an e-mail account, by an e-mail message; or (d) your Online Banking message in-box, by an e-mail message, (e) recorded voice message. You agree to receive Alerts through these EndPoints, and it is your responsibility to determine that each of the service providers for the EndPoints described in (a) through (c) above supports the e-mail, push notification, and text message Alerts provided through the Alerts service. Please be advised that text or data charges or rates may be imposed by your EndPoint service provider. Alert frequency varies by account and preferences.
You agree to provide us a valid telephone number, mobile phone number or e-mail address so that we may send you Alerts. If your e-mail address or your mobile device’s number changes, you are responsible for informing us of that change. Your Alerts will be updated to reflect the changes that you communicate to us with regard to your primary and secondary e-mail addresses or mobile device number.
Alerts via Text Message
To stop Alerts via text message, text "STOP" to 86434 at any time. Alerts sent to your primary e-mail address will be unaffected by this action. To restore Alerts on your mobile phone, just visit the Alerts tab in Online Banking and click the box next to your mobile number for the Alerts you’d like to receive again. For help with SMS text alerts, text “HELP” to 86434. In case of questions please contact customer service at 866-222-6304. Our participating carriers include (but are not limited to) AT&T, SprintPCS, T-Mobile®, U.S. Cellular®, Verizon Wireless, MetroPCS.
Use of SMS Messaging
You may receive SMS text messages relating to the Service, your account and transactions from time to time. In addition to the Alerts you request, you authorize us to send e-mails and SMS text messages to you in connection with the Service, your accounts and transactions at any e-mail address or mobile phone number any of you provide to us. Your wireless carrier's normal rates and fees, such as text messaging fees, will apply. To stop receiving SMS messages you can initiate the opt-out process by sending an SMS text message. Just text "STOP" to this number: 86434. We may suspend or terminate your use of the Service if you elect to stop receiving SMS text messages. For help, text "HELP" to 86434.
Limitations
Fremont Bank provides Alerts as a convenience to you for information purposes only. An Alert does not constitute a bank record for the deposit or credit account to which it pertains. We strive to provide Alerts in a timely manner with accurate information. However, you acknowledge and agree that your receipt of any Alerts may be delayed or prevented by factor(s) affecting your mobile phone service provider, internet service provider(s) and other factors outside Fremont Bank’s control. We neither guarantee the delivery nor the accuracy of the contents of each Alert. You agree to not hold Fremont Bank, its directors, officers, employees, agents and service providers liable for losses or damages, including attorneys’ fees, that may arise, directly or indirectly, in whole or in part, from (a) a non-delivery, delayed delivery, or the misdirected delivery of an Alert; (b) inaccurate or incomplete content in an Alert; or (c) your reliance on or use of the information provided in an Alert for any purpose.
Alert Information
As Alerts delivered via SMS, e-mail and push notifications are not encrypted, we will never include your passcode or full account number. You acknowledge and agree that Alerts may not be encrypted and may include your name and some information about your accounts, and anyone with access to your Alerts will be able to view the contents of these messages.
Data Analytics
You acknowledge that in connection with your use of Mobile Banking, Fremont Bank and its affiliates and service providers, including Q2 e-Banking and Fiserv, Inc. and its affiliates, may receive data about your usage of the service (such as session length, number of transactions and geolocation), and other data and information provided by you or from other sources in connection with Mobile Banking or the Software. Fremont Bank and its affiliates and service providers will maintain reasonable safeguards to protect the information from unauthorized disclosure or use, but reserve the right to use and disclose this information as reasonably necessary to deliver Mobile Banking, perform analytics to improve the service, and as otherwise permitted by law, including compliance with court orders or lawful instructions from a government agency, to protect the personal safety of subscribers or the public, to defend claims, and as otherwise authorized by you.
Harm to Computer Systems/Data
You agree that we will not be liable for viruses, worms, Trojan horses, or other similar harmful components that may enter your computer system by downloading information, software, or other materials from our site. We will not be responsible or liable for any indirect, incidental or consequential damages that may result from such harmful components.
User Communication and Personalization Settings
Our Site and Services may permit you to send or receive communications and to store content and personalized settings for various options. We are not responsible for any delay, deletion, alteration, mis-delivery or failure to deliver or store any such communications, content or settings.
User Conduct
You agree not to use the Service or the content or information in any way that would: (a) infringe any third party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Service to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising or illegal Internet gambling); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or Service Providers, or cause us to lose (in whole or in part) the services of any of our Service Providers; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) potentially be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt computer networks connected to the Service; or (i) use the Service in such a manner as to gain unauthorized entry or access to the computer systems of others.
No Commercial Use or Re-Sale
You agree that the Service is only for the personal use of the individuals authorized to access your Account information with us. You agree not to make any commercial use of the Service or resell, lease, rent or distribute access to the Service.
Confirmations and Periodic Statements; Duty to Examine
You agree to examine any confirmations or monthly account statements promptly. Except to the extent expressly provided otherwise under the "Your Liability for Unauthorized Electronic Fund Transfers" and "In Case of Errors or Questions About You Electronic Transfers" sections above with respect to your duty to review periodic statements and to otherwise notify us of unauthorized electronic fund transfers, you agree to notify us immediately, and in no event later than 30 days after you have received the confirmation or account statement, whichever is received earlier, of the existence of any errors, unauthorized transactions, or irregularities reflected on the confirmation or on the account statement. If you fail to notify us of any such discrepancy with 30 calendar days of receipt of the confirmation or statement containing such information, you agree that we will not be liable for any other losses resulting from your failure to give such notice or for any loss of interest with respect to a transaction that is or should have been shown. Except to the extent expressly limited by applicable law, if you fail to notify us of any such discrepancy within one year of receipt of such confirmation or statement, you will be precluded from asserting the discrepancy against us. For purposes of this Section, you will be deemed to have "received" a periodic statement at the earlier of the time that: (a) we first make it available to you for pick-up; or (b) the statement or the information is mailed or otherwise made available to you electronically.
Security Interest in Accounts
You grant us a security interest in all accounts or other deposits (whether general or special) of yours at Fremont Bank, to secure your obligations to us under this Agreement. This security interest will survive termination of this Agreement. We may hold any funds on deposit with us by you after termination of this Agreement for up to 90 days following the expiration of any return or chargeback rights or, if later, until any other claims to such funds have expired.
Prohibited Payments
In addition to the limitations provided otherwise in this Agreement, the following types of payments are prohibited through the Service, and we have the right but not the obligation to monitor for, block, cancel and/or reverse such payments:
Payments to or from persons or entities located in prohibited territories (including any territory outside of the United States); and
Payments that violate any law, statute, ordinance or regulation; and
Payments that violate this Agreement; and
Payments related to: (1) tobacco products, (2) prescription drugs and devices; (3) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (4) drug paraphernalia; (5) ammunition, firearms, or firearm parts or related accessories; (6) weapons or knives regulated under applicable law; (7) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (8) goods or services that are sexually oriented; (9) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (10) goods or services that defame, abuse, harass or threaten others; (11) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (12) goods or services that advertise, sell to, or solicit others; or (13) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction; and
Payments related to gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to, casino games, sports betting, horse or dog racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes; and
Payments relating to transactions that (1) support pyramid or Ponzi schemes, matrix programs, other "get rich quick" schemes or multi-level marketing programs, (2) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (3) are for the sale of items before the seller has control or possession of the item, (4) constitute money-laundering or terrorist financing, (5) are associated with the following "money service business" activities: the sale of traveler's checks or money orders, currency dealers or exchanges, or check cashing, or (6) provide credit repair or debt settlement services; and
Tax payments and court ordered payments. In addition to the above-referenced prohibited payments, we may also block and/or reverse payments that involve donations or payments to an unauthorized charity or non-profit organization, unless we have performed appropriate due diligence on and investigation of such charity or non-profit organization and have determined its legitimacy, in our sole discretion. In no event shall we or our Service Providers be liable for any claims or damages resulting from your scheduling of prohibited payments. We have no obligation to research or resolve any claim resulting from a prohibited payment. All research and resolution for any misapplied, mis-posted or misdirected prohibited payments will be your sole responsibility and not ours. We encourage you to provide notice to us of any violations of the Agreement generally.
Acceptable Use
You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Service, regardless of the purpose of the use, and for all communications you send through the Service. We and our Service Providers have the right but not the obligation to monitor and remove communications content that we find in our sole discretion to be objectionable in any way. In addition, you are prohibited from using the Service for communications or activities that: (a) violate any law, statute, ordinance or regulation; (b) promote hate, violence, racial intolerance, or the financial exploitation of a crime; (c) defame, abuse, harass or threaten others; (d) include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (e) infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (f) impose an unreasonable or disproportionately large load on our infrastructure; (g) facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information; (h) constitute use of any robot, spider, other automatic device, or manual process to monitor or copy the Service or the portion of the Site through which the Service is offered without our prior written permission; (i) constitute use of any device, software or routine to bypass technology protecting the Site or Service, or interfere or attempt to interfere, with the Site or the Service; or (j) may cause us or our Service Providers to lose any of the services from our internet service providers, payment processors, or other vendors. We encourage you to provide notice to us of any violations of the Agreement generally.
Refusal to Process or Delay in Processing
We may delay or refuse to process any requested Service, including payment orders or other money transactions, or any other Communication from you. We may do so for any reason or for no reason. We may provide notice to you, but are not obligated to do so. We may delay or refuse processing, for example, if: (a) processing would or may exceed the available funds in your affected Account; (b) the Communication is not authenticated to our satisfaction or we believe it may not have been authorized by you; (c) the Communication contains incorrect, inconsistent, ambiguous, or missing information; (d) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; (e) processing would or may cause a violation of any Laws or Rules applicable to you or to us; or (f) for any other reason under this Agreement. In addition, we shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in our having exceeded any limitation upon our intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in our reasonable judgment otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. You agree that we will have no liability to you or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal.
Notices to You
You agree that we may provide notice to you by posting it on the Site, sending you an in-product message within the Service, e-mailing it to an e-mail address that you have provided us, mailing it to any postal address that you have provided us, or by sending it as a text message to any mobile phone number that you have provided us, including but not limited to the mobile phone number that you have listed in your Service setup or customer profile. For example, users of the Service may receive certain notices (such as notices of processed Payment Instructions, alerts for validation and notices of receipt of payments) as text messages on their mobile phones. All notices by any of these methods shall be deemed received by you no later than twenty-four (24) hours after they are sent or posted, except for notice by postal mail, which shall be deemed received by you no later than three (3) Business Days after it is mailed. You may request a paper copy of any legally required disclosures and you may terminate your consent to receive required disclosures through electronic communications by contacting us. We reserve the right to charge you a reasonable fee not to exceed twenty dollars ($20.00) to respond to each such request. We reserve the right to terminate your use of the Service if you withdraw your consent to receive electronic communications.
Termination; Suspension; Delay
We may terminate or suspend this Agreement and any service provided hereunder at any time for any reason or for no reason. Neither termination, cancellation nor suspension shall affect your liability or obligations under this Agreement. Without limiting the foregoing, we may suspend or terminate your access to any service if you do not access the Services for a period of time as determined in our sole discretion. We will provide electronic or written notice of termination to you. Except to the extent restricted by law, we reserve the right to terminate or to discontinue support of any Service, or delay or refuse processing any transaction, without notice. You may terminate this Agreement upon 30 days written notice to us. If an Account is closed for any reason, you will no longer have access to the Services for the closed Account and transfers you have scheduled from the closed account will be cancelled once the Account is closed. Termination of this Agreement will not affect any rights we may have, or any obligations you may have, as to any transaction or Services caused or attempted by you before termination.
Investment Account Information Services
The Services allow you to view certain wealth management and investment account details. The wealth management and investment account products, services and information are provided by a third party. Information may not include "real time" data. The Services are not a substitute for legal, tax, or financial advice or planning. You acknowledge that the Services, Fremont Bank, its employees, and Service Providers are not intended to provide legal, tax or financial advice or planning. The Services are merely a tool for use to assist your independent decision-making and have not been designed in contemplation of your specific needs or risk tolerances. Prior to making any financial decisions, communicating or taking any action with respect to information made available using the Services, you represent that you will have obtained appropriate and independent legal and tax advice regarding the same, as you deem appropriate.
Securities and Advisory services offered through LPL Financial, a registered investment advisor, member FINRA/SIPC. Insurance products offered through LPL Financial or its licensed affiliates. Fremont Bank and FB Investment Services, a Division of Fremont Bank, are not registered broker/dealers and are not affiliated with LPL Financial. Investment and Insurance Products offered through LPL Financial are:
NOT A BANK DEPOSIT
NOT GUARANTEED BY THE BANK
MAY LOSE VALUE
NOT FDIC-INSURED
NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY
Our Relationship With You
We are an independent contractor for all purposes, except that we act as your agent with respect to the custody of your funds for the Service. We do not have control of, or liability for, any products or services that are paid for with our Service. We also do not guarantee the identity of any user of the Service (including but not limited to recipients to whom you send transfers).
Service Providers
We are offering you the Service through one or more service providers ("Service Providers") that we have engaged to render some or all of the Services to you on our behalf. However, notwithstanding that we have engaged such a Service Provider to render some or all of the Services to you, we are the sole party liable to you for any payments or transfers conducted using the Services and we are solely responsible to you and any third party to the extent any liability attaches in connection with the Services. You agree that we have the right under this Agreement to delegate to Service Providers all of the rights and performance obligations that we have under this Agreement, and that the Service Providers will be third party beneficiaries of this Agreement and will be entitled to all the rights and protections that this Agreement provides to us.
Our ability to provide certain Services may be dependent upon our ability to obtain or provide access to third party networks. In the event any third party network is unavailable or we determine in our sole discretion, that we cannot continue providing any third party network access, we may discontinue the related Service or may provide the Service through an alternate third party network. In such situations, we will have no liability for the unavailability or delay of access.
Notwithstanding the limitations described above pertaining to third parties, if you authorize a third party to access the Services on your behalf, you will be solely responsible and liable for all actions and inactions of said third party. You expressly assume the risks associated with providing Service access rights to your agents or third party vendors, including but not limited to the risk of unauthorized or erroneous transactions. We will not be responsible, nor have any liability whatsoever for any services you receive from your agents or third party vendors. We reserve the right to require you to agree to additional terms and conditions as a condition precedent to your use of any agent or third party vendor in connection with your access to the Services.
Security Code Credentials
During your enrollment for the Services, you are required to select or will be assigned certain numbers, codes, marks, signs, public keys or other means of authenticating your identity and electronic communications in your name. These may include a logon name and password. These credentials, with the other components of your Security Codes, will give access to your Accounts through the Service.
You agree not to disclose your Security Codes to anyone and to take other reasonable precautions to ensure the safety; security and integrity of transactions conducted with your computer or mobile device (for example, do not write them down). You agree not to give or make available your Security Codes to any unauthorized individuals, and you agree to be responsible for all actions taken by anyone to whom you have provided such credentials. NOTE: Some browser software may store user names and security codes to facilitate the future use of a web site. For security reasons, you agree to disable this feature in your browser. Check your browser's "Help" screen for more information on this feature. For security reasons we may disable your Security Codes, for example if they are entered incorrectly several times. Passwords should not be easy to guess: for example, your children's or pet's names, birth dates, addresses or other easily recognized identification related to you. It is also recommended you do not have your browser automatically remember your password. We may offer to you or require you to use additional authentication tools or methods from time to time. If you choose not to implement supplemental authentication tools, your access to some or all Services may be limited. Except to the extent limited by applicable law, you agree to indemnify and release us from liability for any claims related to our having honored a transaction or action in reliance on your Security Codes having been provided to us to facilitate the transaction or action.
After several unsuccessful attempts to use your Security Codes, we may revoke your access to the Services. To re-establish your access to the Services, you agree to contact us at (866) 222-6304.
Protecting Your Security
If you believe any part of your Security Code, including your password, may have been compromised, or if you believe there has been unauthorized or erroneous transfer, including made using the information from your check, contact us at (866) 222-6304, or write to Fremont Bank, Customer Service, P.O. Box 5101, Fremont, CA 94537-5101.
Your Privacy; Privacy of Others
Protecting your privacy is very important to us. Please review our Privacy Policy in order to better understand our commitment to maintaining your privacy, as well as our use and disclosure of your information. If you receive information about another person through Service, you agree to keep the information confidential and only use it in connection with the Service.
Confidentiality
All information gathered from you in connection with using the Service will be governed by the provisions of our consumer privacy policy, as well as our online privacy policy, which you agree to review by accessing on our homepage.
In addition, we will disclose information to third parties about your account or the transfers you make:
Where it is necessary for completing transfers;
In order to verify the existence and condition of your account for a third party, such as a credit bureau or merchant;
In order to comply with government agency or court orders; or
If you give us your written permission.
Computer Equipment and Software to Access the Services
You are responsible for providing and maintaining any equipment that is necessary for the Services, such as telephones, terminals, modems, and computers. You agree to use equipment that is compatible with our programs, systems and equipment, which we may change from time to time. We assume no responsibility for the defects or incompatibility of any computers or software that you use in connection with the Services, even if we have previously approved their use. WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY, WITH RESPECT TO THE SERVICES, OR ANY COMPUTER PROGRAMS, EQUIPMENT OR SOFTWARE MADE AVAILABLE TO YOU. You agree to notify us promptly if any software or equipment we provide to you becomes defective. Our sole responsibility (if any) in such instances will be to repair or replace the defective software or equipment. For security purposes, you agree to keep your browser and operating system up to date. You agree to install and maintain appropriate firewall and anti-virus software on any equipment you use to access the Service, to protect your data when connected to the Internet. Except to the extent limited by applicable law, you assume sole responsibility for any and all loss, damage or injury arising with respect to any failure of your equipment, software not provided by us, the disruptions or unavailability of connectivity, viruses, spyware, malware, or worms affecting your equipment or software.
To use the Services, you must have a sufficiently powerful computer hardware and appropriate software. Some Services may require you to download software from our website; in some cases, we may place software on your computer as part of our security and/or verification tools. You agree to maintain the confidentiality of the Security Codes at all times and not to provide access to them to anyone that you do not authorize to access your Accounts through the Services.
Encryption of data transmissions does not guarantee privacy. Data transferred via the Services is encrypted in an effort to provide transmission security. Notwithstanding our efforts to insure that the Services are secure, you acknowledge that the Internet is inherently insecure and that all data transfers (including transfer requests and electronic mail) occur openly on the Internet. This means that the data transfers potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the Services will not be monitored or read by others. You expressly acknowledge that any wireless access to the Services initiated by you may not be secure and, in such cases, you assume the risk associated with unauthorized access to the Service and any information contained therein, resulting from such wireless connectivity.
Information Authorization
Your enrollment in the applicable Service may not be fulfilled if we cannot verify your identity or other necessary information. Through your enrollment in or use of each Service, you agree that we reserve the right to request a review of your credit rating at our own expense through an authorized bureau. In addition, and in accordance with our Privacy Policy, you agree that we reserve the right to obtain personal information about you, including without limitation, financial information and transaction history regarding your Eligible Transaction Account. You further understand and agree that we reserve the right to use personal information about you for our and our Service Providers' everyday business purposes, such as to maintain your ability to access the Service, to authenticate you when you log in, to send you information about the Service, to perform fraud screening, to verify your identity, to determine your transaction limits, to perform collections, to comply with laws, regulations, court orders and lawful instructions from government agencies, to protect the personal safety of subscribers or the public, to defend claims, to resolve disputes, to troubleshoot problems, to enforce this Agreement, to protect our rights and property, and to customize, measure, and improve the Service and the content and layout of the Site. Additionally, we and our Service Providers may use your information for risk management purposes and may use, store and disclose your information acquired in connection with this Agreement as permitted by law, including (without limitation) any use to effect, administer or enforce a transaction or to protect against or prevent actual or potential fraud, unauthorized transactions, claims or other liability. We and our Service Providers shall have the right to retain such data even after termination or expiration of this Agreement for risk management, regulatory compliance, or audit reasons, and as permitted by applicable law for everyday business purposes. In addition we and our Service Providers may use, store and disclose such information acquired in connection with the Service in statistical form for pattern recognition, modeling, enhancement and improvement, system analysis and to analyze the performance of the Service.
Address or Banking Changes
It is your sole responsibility and you agree to ensure that the contact information in your user profile is current and accurate. This includes, but is not limited to, name, physical address, phone numbers and e-mail addresses. Depending on the Service, changes may be able to be made within the user interface of the Service or by contacting customer care at (866) 222-6304. We are not responsible for any payment processing errors or fees incurred if you do not provide accurate Eligible Transaction Account, Transfer Instructions or contact information.
Uploaded Content, Linked Sites and Advertisements
From our Site or while using the Services, you may be able to access uploaded content provided or operated by third parties. Unless we tell you otherwise in writing, we do not operate or control any such content or any of the information, products or services on such linked sites. You acknowledge and agree that: (i) you access such content and linked sites at your own risk; (ii) we make no representation or warranty, and assume no responsibility for, content on our Site and any linked site or the actions or omissions of its/their owners, operators or providers (iii) we make no endorsement of, and assume no responsibility for, content uploaded to our Site or goods or services offered on or advertising on or by any other site; (iv) by using other sites and Services, you may be exposed to content that is offensive, indecent or objectionable; and (v) although we may have a contractual or other relationship with the operators of a linked site or the providers of content, we will not be responsible for the content, accuracy, integrity, availability, timeliness or operation of their site or content. You agree to hold us harmless in connection with all of the foregoing.
We reserve the right, but shall have no obligation, to reject, move, or delete content that we, in our sole discretion, believe violates this Agreement, or contains content, including viruses, that may interfere with the operation of our Site. We may, but have no obligation to, monitor, and/or retain copies indefinitely of, uploaded content, message boards, chat rooms or other forums or review content, or messages posted at such locations, to confirm their compliance with these guidelines. We shall have the right, but not the obligation, to disclose content to any third party if required by law or if we believe reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any content violates rights of third parties; or (d) protect our rights, property, or personal safety, or those third parties.
Third Party Content
We may receive, process, and make available to you content that we receive from you and others. In this regard, we are merely a passive conduit for such content, although we reserve the right to block or remove any content that we believe violates this Agreement. We assume no responsibility for determining the accuracy, reliability, timeliness, ownership, legality, appropriateness or completeness of any information that you or others provide to us, nor for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity on such sites. We will not have a duty to interpret or evaluate any content transmitted to us or through our Site or Services, except to the limited extent, if any, set forth in this Agreement. We will not be required (by means of any security procedure or otherwise) to detect errors or illegality in the transmission or content of any content we receive from you or third parties. We will not have a duty to notify you about any inaccuracy, unreliability, ownership, incompleteness or other problem that may be associated with third party content on our Site, even if we have reason to know of its existence. Use of any content you obtain from our Site is at your own risk.
Idea Submission
If you submit any materials or other information to any public areas of our Site (such as bulletin boards, guest books, forums, wish lists and chat rooms), you hereby grant us a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, sub-licensable, assignable, transferable, irrevocable license under copyright and patent, with the unrestricted right to use, self, reproduce, distribute, transmit, create derivative works of, publicly display, and publicly perform any such materials and other information (including, without limitation, ideas contained therein for new or improved products and services) by all means and in any media now known or hereafter developed or commercialized. In addition, you represent and warrant to us that you have the right to grant to us the foregoing license.
Intellectual Property and Other Proprietary Rights
You acknowledge and agree that the software and content used by us in the operation of our Site and provision of the Services, and the copyright patent, trademark, trade secret and all other rights in and to the technology, software, content, designs, graphics, and trademarks included by us on our Site and as part of the Services and our name and product names and the Site 's URL (collectively, by the "Intellectual Property"), are owned by us and our licensors. As such, you will not gain any ownership or other right, title or interest in or to such Intellectual Property by reason of this Agreement or otherwise.
Without limiting the foregoing, all other marks and logos related to the Service are either trademarks or registered trademarks of us or our licensors. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress or those of our licensors. You may not copy, imitate, or use any of the above without our prior written consent, which we may withhold in our sole discretion, and you may not use them in a manner that is disparaging to us or the Service or display them in any manner that implies our sponsorship or endorsement. All right, title and interest in and to the Service, the portion of the Site through which the Service is offered, the technology related to the Site and Service, and any and all technology and any content created or derived from any of the foregoing, is our exclusive property or that of our licensors. Moreover, any suggestions, ideas, notes, drawings, concepts, or other information you may send to us through or regarding the Site or Service shall be considered an uncompensated contribution of intellectual property to us and our licensors, shall also be deemed our and our licensors' exclusive intellectual property, and shall not be subject to any obligation of confidentiality on our part. By submitting any such materials to us, you automatically grant (or warrant that the owner of such materials has expressly granted) to us and our licensors a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed, and you warrant that all so-called "moral rights" in those materials have been waived, and you warrant that you have the right to make these warranties and transfers of rights.
Further, you many not distribute, use, reproduce, duplicate, copy, publish, sell or otherwise transfer (i) any portion or element of the Services or the Intellectual Property (ii) use of our Site, Services or Intellectual Property, or (iii) access to our Site Services or Intellectual Property. Further, you may not (a) create derivative works of any portion or element of our Site, Services or Intellectual Property; (b) reverse engineer, modify, decompile or disassemble any of the Intellectual Property; (c) deactivate or disable any password protection or other protection, security or reliability technology we incorporate in our Site or the Services; (d) modify or erase any copyright or trademark notice we place at our Site; (e) engage in the practice known as "screen-scraping" or otherwise attempt to, or actually, obtain copies of content provided at the site or a list of our content or site users, or use computer programs (sometimes known as "scraper," "spiders," "robots," or "bots") to systematically access and download data; (f) access the Services by any means other than via our Site; (g) frame our Site or any Intellectual Property; or (h) use any circumvention tools, meta tags or any other "hidden text" utilizing our name, trademark, URL, product name or Intellectual Property. You agree to comply with the terms of any license agreement we make available to you with any software.
Entire Agreement
You agree that this Agreement is the complete and exclusive statement of the agreement between us, sets forth the entire understanding between us and you with respect to the Service and the portion of the Site through which the Service is offered and supersedes any proposal or prior agreement, oral or written, and any other communications between us. If there is a conflict between the terms of this Agreement and something stated by an employee or contractor of ours (including but not limited to its customer care personnel), the terms of the Agreement will prevail.
Relation to Other Agreements
This Agreement is in addition to other agreements between Fremont Bank and you, including but not limited to (as applicable), your checking, savings, and other account agreements, as may be modified from time to time. If there is a conflict between the terms and conditions of this Agreement and those contained in the other agreements between you and us, this Agreement will control.
Amendment of this Agreement
We may amend, add to or change this Agreement and any applicable fees and charges or Services at any time by posting a revised version on the Site. The revised version will be effective at the time it is posted unless a delayed effective date is expressly stated in the revision. Any use of the Service after a notice of change or after the posting of a revised version of this Agreement on the Site will constitute your agreement to such changes and revised versions. Further, we may, from time to time, revise, update, upgrade or enhance the Service and/or related applications or material, which may render all such prior versions obsolete. Consequently, we reserve the right to terminate this Agreement as to all such prior versions of the Service, and/or related applications and material, and limit access to only the Service’s more recent revisions, updates, upgrades or enhancements.
Headings and Survival
The headings in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. Any terms which by their nature should survive, will survive the termination of this Agreement.
Assignment
You may not transfer or assign any rights or obligations you have under this Agreement, and any effort by you to do so is unenforceable at our election. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time to any party. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties.
Taxes
It is your responsibility to determine what, if any, taxes apply to the transactions you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. We are not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
Severability
Wherever possible, each provision of this Agreement shall be interpreted in a manner which makes the provision effective and valid under applicable law. If applicable law prohibits or invalidates any part or provision of this Agreement, that particular part or provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Remedies
If we have reason to believe that you have engaged in any of the prohibited or unauthorized activities described in this Agreement or have otherwise breached your obligations under this Agreement, we may terminate, suspend or limit your access to or use of the Site or the Service; notify law enforcement, regulatory authorities, impacted third parties, and others as we deem appropriate; refuse to provide our services to you in the future; and/or take legal action against you. In addition, we, in our sole discretion, reserve the right to terminate this Agreement, access to the Site and/or use of the Service for any reason or no reason and at any time. The remedies contained in this Section are cumulative and are in addition to the other rights and remedies available to us under this Agreement, by law or otherwise.
Disputes
In the event of a dispute regarding the Service, you and we agree to resolve the dispute by looking to this Agreement.
Arbitration For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00 USD, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will initiate such arbitration through Judicial Arbitration and Mediation Services ("JAMS"), the American Arbitration Association ("AAA"), or an established alternative dispute resolution (ADR) administrator mutually agreed upon by the parties. The parties agree that the following rules shall apply: (a) the arbitration may be conducted telephonically, online and/or be solely based on written submissions, at the election of the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties, their representatives or witnesses unless otherwise mutually agreed by the parties; (c) discovery shall not be permitted; (d) the matter shall be submitted for decision within ninety (90) days of initiation of arbitration, unless otherwise agreed by the parties, and the arbitrator must render a decision within thirty (30) days of submission; and (e) any award in such arbitration shall be final and binding upon the parties and may be submitted to any court of competent jurisdiction for confirmation. The parties acknowledge that remedies available under federal, state and local laws remain available through arbitration. NO CLASS ACTION, OTHER REPRESENTATIVE ACTION, OR PRIVATE ATTORNEY GENERAL ACTION, OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON SHALL BE ALLOWABLE IN ARBITRATION.
Choice of Law
This Agreement shall be governed by and interpreted in accordance with the laws of the state of California, except where preempted by federal law.
Consumer's Indemnification Obligation
Except to the extent prohibited by applicable law or regulation, you agree to defend, indemnify and hold harmless us and our affiliates, Service Providers, licensors, processors and third party contractors and their Affiliates and the employees and contractors of each of these, from and against all claims or demands, loss, damage or liability of any nature whatsoever (including but not limited to attorneys' fees and court costs) made or incurred by any third party due to or arising directly or indirectly out of: (i) your wrongful acts or omissions, or any person acting on your behalf in connection with your use of the Services; (ii) any act or omission of ours that is in accordance with the Agreement and instructions from you; (iii) any claims, loss or damage resulting from your breach of, or failure to perform in accordance with, the terms of the Agreement and/or your use of the Site or the applicable Service. This indemnity will survive the termination of the Agreement.
Release
You release us and our affiliates and Service Providers and the employees and contractors of each of these, from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with any dispute that may arise between you or one or more other users of the Site or the applicable Service. In addition, if applicable to you, you waive California Civil Code §1542, which states that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor.
No Waiver
We shall not be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by one of our authorized representatives. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
Exclusions of Warranties
THE SITE AND SERVICE AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF OUR SERVICE, AND OPERATION OF OUR SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. SOME STATES DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THIS PARAGRAPH GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability
THE FOREGOING SHALL CONSTITUTE YOUR EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF US AND OUR AFFILIATES AND SERVICE PROVIDERS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, FOR THE SERVICE AND THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED. YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME, THE SERVICE MAY BE DELAYED, INTERRUPTED OR DISRUPTED PERIODICALLY FOR AN INDETERMINATE AMOUNT OF TIME DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION, DISRUPTION OR FAILURE IN THE PROVISION OF THE SERVICE, WHETHER CAUSED BY STRIKES, POWER FAILURES, EQUIPMENT MALFUNCTIONS INTERNET DISRUPTION OR OTHER REASONS. IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE CAUSED BY OR ARISING OUT OF ANY SUCH DELAY, INTERRUPTION, DISRUPTION OR SIMILAR FAILURE. IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF GOODWILL OR LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND NOTICE WAS GIVEN REGARDING THEM. IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE EMPLOYEES OR CONTRACTORS OF ANY OF THESE BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED THAT YOU DO NOT STATE IN WRITING IN A COMPLAINT FILED IN A COURT OR ARBITRATION PROCEEDING AS DESCRIBED IN THIS AGREEMENT WITHIN TWO (2) YEARS OF THE DATE THAT THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THESE LIMITATIONS WILL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY. OUR AGGREGATE LIABILITY AND THE AGGREGATE LIABILITY OF OUR AFFILIATES AND SERVICE PROVIDERS AND THE EMPLOYEES AND CONTRACTORS OF EACH OF THESE, TO YOU AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT OUT OF POCKET DAMAGES UP TO A MAXIMUM OF $500 (FIVE HUNDRED DOLLARS). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Commercial Account Use
This Agreement is not intended for use by commercial account holders and any regulatory consumer protections provided to consumer accounts will not apply to commercial accounts under this Agreement. To the extent commercial accounts are accessed using the Services, the account owner(s) assume full liability for all transactions conducted with their Security Codes. Further each commercial account owner agrees to the following: (i) to consider the size, type and frequency of the payment orders or other money transactions you will or intend to use Services to accomplish; (ii) to consider the risks presented by the possibility of unauthorized access to these Services, including the risk loss to you that we may process Communications and instructions that are your responsibility even though they were not authorized by you; and (iii) to use Services only after determining, and only for so long as you continue to determine, that the security procedures are a commercially reasonable method of providing security against unauthorized payment orders or other Communications. Each commercial account owner agrees and acknowledges that the security procedures are commercially reasonable for each of you and that each of you will be bound by instructions or Communications in your name, as set forth above. Each commercial account owner agrees to notify us if their use of the Services would necessitate or be better served by a level of security that exceeds that offered by the Services. If you fail to notify us, then each commercial account owner acknowledges and agrees that the security procedures are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use. In addition to the terms of this Agreement, the terms and conditions of the separate Business Online Banking Terms and Conditions will apply to commercial account owner's use of the Service. In the event of a conflict between the terms of this Agreement and the Business Online Banking Terms and Conditions, the terms of the Business Online Banking Terms and Conditions will control to the extent the Services are accessed by commercial accounts.