I. ONLINE BANKING
Please read carefully the Online Banking Agreement for First Bank and Trust's (“FBT”) Online Banking system. The agreement includes disclaimers of liability and other matters of interest to you. By pressing the "I Accept" button, you agree to the terms and conditions of the Online Banking Agreement which includes consent to future amendments of the Agreement. By pressing "I Decline", you will be returned to the First Bank and Trust website Home Page. If you wish to have a hardcopy of this agreement, print a copy now by clicking on the print icon on your web browser or call First Bank and Trust's Customer Support Line at (504) 584-5970.
A. Online Banking
This Online Banking Agreement and Disclosure (the "Agreement") is between First Bank and Trust and each consumer who has applied for, been approved for, and enrolled in our Online Banking service, or any person authorized by the consumer to use the consumer's Online Banking service, and sets forth the terms governing the provisions of Internet banking services to you. By completing and signing the First Bank and Trust Online Banking Application form, or by completing and submitting the First Bank and Trust Online Banking Online Application form via the Internet, you have agreed to be bound by the terms and conditions of this Agreement, as it may be amended from time to time. This Agreement describes your and our rights, responsibilities and obligations with respect to Online Banking services, and supplements any other agreements between us, including the electronic funds transfer agreements and disclosures that you received previously when opening your First Bank and Trust depository account and/or contracting for other types of electronic funds transfer access for those accounts.
When you use the Online Banking Services or you permit any other person to use the Online Banking Services, you agree to the terms and conditions we have set out in this Agreement and any instructional material that we provide regarding the Online Banking service. If there is a conflict between the terms and conditions of this Agreement and those contained in other agreements between us, this Agreement will supersede.
In this Agreement, the words "you" and "your" mean those who submit a First Bank and Trust Online Banking Online Application via the Internet, or sign as applicants on our Online Banking Application form and any person authorized by an applicant to use the applicant’s Online Banking Service. The words, "we", "us" "our", and "Bank" mean First Bank and Trust and any agent, independent contractor, designee, or assignee that we may, in our sole discretion, involve in the provision of online services. The word “Site” means the First Bank and Trust web site, URL address http://www.fbtonline.com. “Online Banking Services” means the information, communications and transactions provided to you by us through the Site, as more fully described below. The terms "designated account(s)" and "account(s)" mean your accounts with us that you designate on your application form for Online Banking access.
In order to be able to access our Online Banking Service, you must have at least one personal account with us. You will assign yourself an Online Banking Access ID and be provided with instructions to activate your ("Password"), which you must use to access Online Banking. We may require you to change your Password from time to time for security purposes.
You should keep your Password in a secure location. Any person having access to your Online Banking Access ID and Password will be able to access Online Banking and perform all transactions, including reviewing your account information and making transfers between your accounts with us.
This service agreement is for personal accounts only. Business checking account holders, non-profit organizations, or sole proprietors must apply for the Online Business Account Service.
Online Banking is generally accessible 24 hours a day, seven days a week, except for reasonable periods from time to time for system maintenance. We are not liable under this Agreement for failure to provide access due to a system failure or due to other unforeseen acts.
We may modify, suspend or terminate access to Online Banking services at any time and for any reason without prior notice, unless such notice is required by law.
3. Risk of Use and Disclaimer of Liability
To use Online Banking, you need a computer with the ability to connect to the Internet and a web browser (such as Microsoft Internet Explorer or an equivalent). You are responsible for the set up and maintenance of your personal computer, peripheral hardware and software.
4. Equipment and Software Requirements
Although the Bank attempts to provide accurate, up to date information on its Site, the information and material contained in the Site, including text, graphics, pictures, logos, icons and other materials (the “Contents”) , are provided on an “as is,” “as available” basis, and the Bank disclaims liability for any errors or omissions in the Contents. Your use and browsing of the Site and its contents and your use of the services is at your own risk. The Bank makes no representations, endorsements, or warranties of any kind whatsoever, either express or implied, including but not limited to any warranties of title, accuracy, completeness, suitability, reliability, or any implied warranties of merchantability, fitness for a particular purpose, freedom from computer virus or non-infringement, with the sole exception of warranties (if any) that cannot be expressly excluded under applicable law. Neither the Bank nor any affiliate nor any other party or their respective directors, officers, or employees involved in creating, producing or delivering the Site is or shall be liable for any direct, consequential, indirect, special, punitive or other damages of any kind arising out of your access to or use of the Site or the Online Banking services, whether under a contract, tort or any other theory of liability, arising in connection with and use of the Online Banking services or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus, line system failure, loss of data, or loss of use, whether related to or caused by the equipment, software, Bank, or by Internet browser providers such as Netscape and Microsoft, or by online service providers or by an agent or subcontractor of any of the previously mentioned parties.
First Bank and Trust will not bear the liability or the risk of any error or loss of data, information, transactions or other losses that may be due to the failure of the Bank’s respective computer system or third party communications provider. We will have no liability to you for any damage or other loss, direct or consequential, that you may incur by reason of your use of your computer system.
You agree that First Bank and Trust will have no be held liability for viruses, worms, Trojan horses or other harmful components that may enter your system by downloading the materials from our Site. We will not be responsible or liable for any direct, indirect, incidental, special or consequential damages that may result from such harmful components.
WITHOUT LIMITING THE FOREGOING, THE SERVICES AND EVERYTHING ON THE SITE ARE PROVIDED TO YOU “AS IS,” “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS OR NON-INFRINGEMENT, UNLESS DISCLAIMING SUCH WARRANTY IS PROHIBITED BY LAW.
B. Online Banking Services Offered
At the present time, you may use Online Banking to:
· Transfer funds between your designated accounts at First Bank and Trust;
· Transfer funds, after proper verification, to/from accounts at other financial institutions;
· Transfer funds to/from others using cell phone numbers and/or email addresses;
· View the balances of your designated accounts;
· Review recent transactions in your designated accounts;
· View check images;
· Deposit checks remotely, if you meet qualification criteria;
· Communicate with us via private messaging;
· Retrieve bank statements and other notices;
· Mobile Banking (banking by cell phone);
· Bill Pay.
Your account records are updated at the close of each business day to reflect credits and debits that have been posted to your account that day. Therefore, when you use Online Banking to access your designated account, your account balance may not reflect deposits and/or withdrawals that have been made since your account records were last updated.
For security purposes, we may from time to time establish limits on the dollar amount of electronic funds transfers you may make each day that are different from those set forth below. These limits may vary according to the manner in which such transfers are made. If we make a change which results in the limitation of the dollar amount that may be transferred or any other change about which, by law, we are required to give you notice, we will provide you with a written notice of the limitation or other change. The current limitations are:
There are no limits on the number of balance inquiries, or number or dollar amount of transfers you may make via Online Banking in a single day. However, transfers from some types of accounts are restricted by federal law or by our design of the product. Federal regulations require us to limit the number of certain types of transfers from savings and money market deposit accounts. Refer to your account agreement for further information regarding these limitations.
The amount of Online Banking transfers that you may make is limited by the available balance in the account you wish to transfer from, including any funds available through overdraft protection credit arrangements you have established with us. If you request a transfer that exceeds the funds available in the account from which a transfer is being made, we will not be required to honor the transfer request. However, if we, in our sole discretion, choose to make a requested transfer that exceeds the funds available in the account, that account will be subject to our current fee for processing items drawn against nonsufficient funds.
Transfers may also be limited by legal processes or other claims restricting such transfers.
· Transfer instructions involving only FBT accounts received by us Monday through Friday, excluding holidays, before 5:30 PM Central Time will be credited/debited to your designated accounts on that business day, assuming that you have sufficient available funds. Transfers processed after that time, on a weekend or holiday, will be credit/debited on the next business day.
· Transfer instructions involving accounts at other financial institutions received by us Monday through Friday, excluding holidays, before 3:30 PM Central Time will be credited/debited to your designated accounts on that business day, assuming that you have sufficient available funds. Transfers processed after that time, on a weekend or holiday, will be credit/debited on the next business day. Funds availability at the Receiving Depository Financial Institution (“RDFI”) will be processed (1) on the following business day if the transfer is a debit to the RDFI account, or (2) on the second business day if the transfer is a credit to the RDFI account.
· Items deposited through the Online Banking Check Deposit system received by us Monday through Friday, excluding holidays, before 5:30 PM Central Time will be reviewed and processed in accordance with the bank’s standard procedures for check items. Items deposited after that time, on a weekend or holiday, will be reviewed and processed on the next business day.
· Items deposited through the Mobile Banking Check Deposit system received by us Monday through Friday, excluding holidays, before 4:00 PM Central Time will be reviewed and processed in accordance with the bank’s standard procedures for check items. Items deposited after that time, on a weekend or holiday, will be reviewed and processed on the next business day.
2. Fees and Charges for Online Banking Transactions
Except where noted below, there is no charge for the Online Banking service or transactions.
However, fees and charges for other services may apply to Online Banking transactions (including but not limited to fees for processing return items, overdraft items and stop payment orders).
C. Your Rights and Responsibilities
1. Authorized Use by Others
You are responsible for keeping your Access ID, Password and account data confidential. We are entitled to act on transaction instructions received using your Online Banking Access ID number and Password, and you agree that the use of your Online Banking Access ID and Password will have the same effect as your signature authorizing the transaction. If you authorize other persons to use your Access ID and Password in any manner, your authorization will be considered unlimited in amount until you have notified us in writing that you have revoked your authority. You are responsible for any transactions made by such person until you notify us that transfers by that person are no longer authorized by you and we have reasonable time to act on that notification.
2. Reporting any Unauthorized Online Banking Transactions
Tell us AT ONCE if you believe your Online Banking Access ID or Password has been lost or stolen or that someone has transferred or may transfer money from your account without your permission or if you suspect any fraudulent activity on your account. Telephoning is the best way of keeping your possible losses down. To notify us about your lost Access ID or Password or about unauthorized transfers from your account, call (504) 584-5970 or write to us at: Electronic Banking, First Bank and Trust, PO Box 1830, Covington LA 70434. If you do not notify the Bank in a timely manner, you could lose all the money in your accounts plus your maximum amount available on your overdraft line of credit.
If you tell us within two (2) business days, you can lose no more than $50.00 if someone used your Online Banking Access ID or Password without your permission. If you do NOT tell us within two (2) business days after you learn of the loss or theft of your Online Banking Access ID or Password, and we can establish that we could have stopped someone from using your Online Banking Access ID or Password without your permission had we been made aware, you could lose as much as $500.00.
Also, if your statement shows transfers that you did not make, tell us AT ONCE. If you do not tell us within sixty (60) days after the FIRST statement showing such a transfer was mailed to you, you may not get back any money lost after the sixty (60) days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a verifiable reason beyond your control, such as a hospital stay prevented you from telling us, we may extend the time periods.
a) Confirmation Number:
A confirmation number will be assigned to each Online Banking funds transfer at the time you submit the request. You are encouraged to document the number provided for future reference.
b) Periodic Statement
You will receive a monthly checking account statement from us. You will receive a monthly savings account statement from us, unless there are no transactions in that month. In any case, you will receive a savings account statement no less than quarterly. All Online Banking transfers transacted during that statement period will be reflected on your statement.
4. Business Days
For purposes of this Agreement, our business days are Monday through Friday. Holidays are not included.
5. Our Liability for Failure to Make Transfers
The Bank will use its best efforts to process your transfers properly. However, the Bank shall incur no liability if the Bank is unable to process Online Banking transactions, because of the existence of any one or more of the following circumstances:
· If, through no fault of ours, you do not have enough money in your designated account to make the transfer.
· If the money in your designated account is attached, subject to legal process or other claim restricting such transfer.
· If the transfer would go over the credit limit on your overdraft line.
· If either you or we have terminated this Agreement.
· If the electronic device (telephone, computer, modem, cell phone, or other hardware), software or communication line, circuit, network or service used to connect and/or provide instructions to us was NOT working properly and you knew about the malfunction or breakdown when you started the transfer request.
· If circumstances beyond our control (such as fire, flood, malfunction in computer or communications equipment, or malfunction or disruption of telephone line service) prevent the completion of the transaction despite reasonable precautions that we have taken to avoid these circumstances.
· If we believe in good faith that a breach of security has occurred, or is occurring, involving your designated account(s) or any aspect of your utilization of Online Banking services and we take steps to notify you.
· If there are any other exceptions available to us, either by contract, by agreement or by state, including the terms of this Agreement or any other agreements between you and us, with respect to your account(s). There may be other exceptions stated throughout this Agreement.
· If you did not receive a Online Banking confirmation number for a transfer request.
You agree to abide by and be bound by all applicable limitations.
6. In Case of Errors or Questions About Your Electronic Transfers
Telephone us at (504) 584-5900, or write to us at the address shown below as soon as you can, if you think your statement is wrong or if you need more information about a transfer listed on the statement. Write to us at:
First Bank and Trust, PO Box 1830, Covington, LA 70434.
· We must hear from you no later than sixty (60) days after we sent 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.
· If you tell us verbally, we may require that you send us your complaint or question in writing within ten (10) business days.
We will tell you the results of our investigation within ten (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 forty-five (45) days to investigate your complaint or question. If we decide to do this, we will credit your account within ten (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 ten (10) business days, we may not credit your account for the amount you think is in error.
If we decide that there was no error, we will send you a written explanation of our findings within three (3) business days after we finish our investigation. You may ask for copies of the documents that we used in our investigation.
If a notice of error involves an electronic funds transfer to or from the account within thirty (30) days after the first deposit to the account was made, the applicable time period for action will be within twenty (20) business days of receiving notice of an error. If a notice of error involves an electronic funds transfer that: was not initiated within a state; resulted from a point of sale debit card transaction; or occurred within thirty (30) days after the first deposit to the account was made, the applicable time for investigation is ninety (90) days in place of forty-five (45) days.
· To complete transfers as necessary;
· To verify the existence and condition of your account upon the request of a third party, such as a credit bureau, or merchant; or
· To comply with government agencies or court orders;
· As otherwise provided in other agreements you have with us regarding your account(s).
The Online Banking Access ID and Password are for your security purposes. The Online Banking Access ID and Password are confidential and should not be disclosed to third parties, recorded or saved on a computer or other online system. You are responsible for safekeeping your Online Banking Access ID and Password. You agree not to disclose or otherwise make your Online Banking Access ID or Password available to anyone not authorized to sign on your designated accounts.
All notices from us will be effective when we have mailed or delivered them to your last known address specified in this Agreement. Notices from you will be effective when received by us at the address specified in this Agreement. We reserve the right to change the terms and conditions upon which the Online Banking service is offered.
In the event that we bring a legal action to enforce this Agreement, or collect amounts owing as a result of any account transaction, you agree to pay any reasonable attorneys’ fees and costs that we may incur, including fees on any appeal, subject to any limits under applicable law.
11. Addition/Removal of Account
You may add or remove a designated account to/from the Online Banking service by calling (504) 584-5970.
12. Termination of Online Banking Services
You agree that we may terminate this Agreement and your use of Online Banking Services via the Internet if:
· You or any user of your Online Banking Password breach this or any other agreement with us;
· We have reason to believe that there has been an unauthorized use of your Online Banking Access ID or Password;
· You close all accounts under the Agreement;
· We notify you or any other party to your designated account that we have cancelled or will cancel this Agreement;
· You or any other party to your designated account can terminate this Agreement by notifying us in writing. You must notify us at least ten (10) business days before the date on which you wish to have Online Banking terminated.
Termination of this Agreement will not affect the rights and responsibilities of the parties under this Agreement for transactions initiated before termination.
13. Other Provisions
There may be a delay between the time a deposit is made and when it will be available for withdrawal or transfer. You should review our Funds Availability Policy to determine the availability of the funds deposited. We reserve the right to refuse to complete any Online Banking transaction that would draw upon insufficient funds, exceed a credit limit, lower an account below a required balance, or otherwise require us to increase our required reserve on the account.
b) Electronic Communication
If you have agreed to receive disclosures in electronic form, you are responsible for downloading or printing the disclosures. Alternatively, you may provide us with a non-electronic address to which the disclosures may be mailed. We may send notices and legal disclosures required in connection with Online Banking, or in connection with the accounts which are included within your Online Banking service, to you by electronic mail (“e-mail”). You may use e-mail to contact us about inquiries, maintenance and/or some problem resolution issues. However, e-mail may not be a secure method of communication; therefore, we recommend that you not send confidential, personal or financial information by e-mail. There may be times when you need to speak with someone (especially to report a lost or stolen Password or to stop a payment). In these cases, do not use e-mail. Instead, call us at (504) 584-5970.
c) New Services
We may introduce new Online Banking services from time to time and by using these new services after they become available, you agree to be bound by all terms and conditions applicable thereto.
d) Ownership of Website
The context, information and offers on our website are copyrighted by First Bank and Trust, and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited.
e) Governing Law
This Agreement will be governed by and construed in accordance with the laws of Louisiana, without regard to Louisiana conflict of law provisions. Your existing account relationships will continue to be governed by and construed in accordance with the laws as disclosed in such account agreements.
The headings used in this Agreement are for convenience only and shall not be held to limit or affect the terms of this Agreement.
II. ONLINE BILL PAY
A. FIRST BANK AND TRUST ONLINE BILL PAYMENT SERVICE AGREEMENT
This First Bank and Trust Online Bill Payment Service Agreement (“Agreement”) states the terms and conditions for the First Bank and Trust Online Bill Payment Service (“ONLINE BILL PAY”) offered by First Bank and Trust (the “Bank”). When you use, or you permit any other person(s) to use ONLINE BILL PAY, you agree to the terms and conditions of this Agreement. These terms and conditions are in addition to those that are found in the First Bank and Trust Internet Banking Agreement for Online Banking Personal Banking Services and those that apply to any accounts you have with the Bank, as they may be amended from time to time. This Agreement is an addendum to the existing Deposit Account Agreement that you received when opening your checking account.
1. USING THE ONLINE BILL PAYMENT SERVICE
As used in this Agreement, the term "Payee" means the person or entity to whom you wish a bill payment to be directed; "Payment Instruction" means the information provided by you to the Bank for a bill payment to be made to the Payee (such as, but not limited to, Payee name, your account number with Payee, and Scheduled Date); "Pay From Account" means your checking account from which a bill payment will be made; "Business Day" means Monday through Friday, excluding Federal Reserve, state and local holidays; "Scheduled Date" means the Business Day of your choice upon which your bill payment will begin processing (a Scheduled Date of a non-Business Day will be considered to be the next Business Day); and, "Cutoff Time" means 5:00 PM Central Time on any Business Day and is the time by which you must transmit Payment Instructions to have them considered entered on that particular Business Day.
ONLINE BILL PAY is not approved for use on any account requiring the signature of more than one person. Any such customer gaining access to the ONLINE BILL PAY service does so at the customer’s own risk and the Bank will not be liable for such unauthorized use.
To gain access to ONLINE BILL PAY, you must have a consumer checking account, be a registered user of Online Banking Personal Banking Services, and accept this Agreement according to the instructions on the ONLINE BILL PAY online registration page. Online submission of your acceptance of this Agreement according to the registration instructions constitutes your digital signature under applicable state and Federal law, and your acceptance of this Agreement in its entirety.
After submission of your acceptance of this Agreement, the ONLINE BILL PAY Service will be available for your use immediately. To use ONLINE BILL PAY, you must provide information online to the Bank that identifies your Payee(s). You must provide sufficient information about a Payee and your account with the Payee to permit the Bank to properly direct a payment and permit the Payee, upon receipt of a payment, to identify you as the payment source. You do this by filling in all fields with accurate information, as directed by the ONLINE BILL PAY screen messages. By providing the Bank with the name and account information of the Payee(s) to whom you wish to direct payment, you authorize the Bank to follow the Payment Instructions that the Bank receives through the ONLINE BILL PAY payment system. When the Bank receives a Payment Instruction, you authorize the Bank to debit your Pay From Account and remit funds to the Payee(s) on your behalf.
To access and use ONLINE BILL PAY, go to http://www.fbtonline.com/ and login to Online Banking Personal Banking Services. Once logged in, and after registering for ONLINE BILL PAY, you will be able to set up the following types of bill payments:
· Single Payment: You may schedule a payment to be made one time to a Payee. The payment may be scheduled to begin processing on a future date, or on the same day that you enter the Payment Instruction provided you enter the Payment Instruction before the Cutoff Time.
· Recurring Payment: You may schedule payments to Payees to be automatically initiated in a fixed amount at regular intervals. If the Scheduled Date does not exist in a certain month, then payment processing will be initiated on the last Business Day of the month. For example, if you schedule a payment for the 30th of each month, your payment for the month of February will be begin processing on or after the 28th of February.
The amount of any Single Payment or Recurring Payment shall not exceed $100,000.
You will be provided a confirmation number for each payment you schedule using ONLINE BILL PAY. This number is available on the Transactions Screen if you need to refer to it in the future. The confirmation number will help the Bank resolve any questions you may have concerning your transactions, so you should note this confirmation number for future reference or inquiries.
The bill pay user should expect the payment to arrive at the payee’s financial institution on the date entered into the Scheduled Date field. The ONLINE BILL PAY system will make adjustments for the type of payment and not let the user enter a date that payment could not be delivered by.
The Bank will use its best efforts to process all your payments properly. However, the Bank shall incur no liability if the Bank is unable to complete any payments initiated by you through the ONLINE BILL PAY because of the existence of any one or more of the following circumstances:
· If, through no fault of the Bank, your Pay From Account does not contain sufficient funds to complete the transaction;
· The ONLINE BILL PAY Service or Online Banking Personal Banking Services is not working properly and you know or have been advised by the Bank about the problem before you execute the transaction;
· The Payee mishandles or delays a payment sent by the Bank;
· You have not provided the Bank with the correct name, phone number or account information for the Payee, or you have not provided the Bank with accurate personal information during enrollment, or you have otherwise provided incomplete Payment Instructions; or
· Circumstances beyond the Bank’s control (such as, but not limited to, fire, flood, acts of terrorism, environmental disaster or interference from an outside force) that prevent the proper execution of the transaction when the Bank has taken reasonable precautions to avoid those circumstances.
Provided none of the foregoing five (5) exceptions are applicable, if the Bank causes an incorrect amount of funds to be removed from your Pay From Account or cause funds from your Pay From Account to be directed to a Payee which does not comply with your Payment Instructions, the Bank shall be responsible for returning the improperly transferred funds to your Pay From Account and for directing, to the proper Payee, any previously misdirected transactions.
The following payments are prohibited through ONLINE BILL PAY:
· Tax Payments and other governmental fees;
· Court ordered payments, alimony and child support payments;
· Payments to Payees outside of the United States;
· Payments on any account requiring two (2) signatures; or
· Payments made for any illegal purpose.
A bill payment is "In Process" starting at the Cutoff Time on the Scheduled Date and continuing up to the next Business Day after the Scheduled Date. A bill payment is a "Pending Payment" starting from the time you enter Payment Instructions until the payment is "In Process". A bill payment is considered "Completed" on the next Business Day after the Scheduled Date. You may cancel or edit any "Pending Payment" (including Recurring Payments) by following the directions within the service. There is no charge for canceling or editing a "Pending Payment". When you cancel a "Pending Payment" the system will assign a confirmation number to the cancellation transaction. The confirmation number will help the Bank resolve any questions you may have concerning your transactions and is available on the Transactions Screen if you need to refer to it in the future. If you desire to cancel or stop any payment that is "In Process", you must call the Electronic Banking Department at (504) 584-5970. Stop payment requests sent to the Bank via e-mail or in any other manner will not reach the Bank in time for the Bank to act on your request. If you call, you may also be required to confirm your request in writing within fourteen (14) days of the call. The Bank may not be able to stop a payment that is "In Process". Although the Bank will make every effort to accommodate your request, the Bank will have no liability for failing to do so. The charge for each stop payment order will be the charge for such service as set forth in the current Bank Fee Schedule at the time of the request. You may obtain a copy of the current Bank Fee Schedule by visiting any First Bank and Trust Branch.
Once your scheduled bill payment is "In Process", the Bank may remit your payment to your Payee by any one of the following means, at the Bank’s sole discretion: (1) by electronic funds transfer; (2) by mailing your Payee a check drawn on an account the Bank maintains for this purpose; or (3) by other means. The timing of when your scheduled bill payment is deducted from your Pay From Account will generally be the next Business Date after the Scheduled Date, or potentially later depending on the processing capabilities of other financial institutions.
All of your payments made through ONLINE BILL PAY will appear on your monthly account statement(s) for your Pay From Account. You can also view payment activity on the Transactions Screen.
3. IN THE EVENT A BILL PAYMENT SERVICE TRANSACTION IS RETURNED
In using ONLINE BILL PAY, you are requesting that the Bank make payments for you from your Pay From Account. If the Bank is unable to complete the transaction for any reason associated with your Pay From Account (for example, there are not sufficient funds in your Pay From Account to cover the transaction), the transaction may not be completed. You will receive a return notice from the Bank and you will be charged a Handling Fee for each returned item. You agree that you will reimburse the Bank for the Handling Fee imposed by the Bank as a result of returned items. You agree and authorize the Bank to deduct such Handling Fee immediately from any account(s) you have with the Bank. This fee is in addition to any other fees the Bank may charge as provided in your various account agreements with the Bank.
If your payment results in the overdraft of your account, you agree to pay the Bank upon demand, the amount of the overdraft together with the Overdraft Fee per the Bank’s most recent Fee Schedule. You agree to pay the Bank whether or not you signed or requested the withdrawal or participated in the transaction creating the overdraft or received any benefit from the withdrawal creating the overdraft.
You agree to pay all costs and expenses, including attorneys’ fees, incurred by the Bank in the collection of any fee imposed by the Bank as a result of ONLINE BILL PAY Returned Items unless the collection of such cost is prohibited by applicable state law. The Bank is hereby authorized to report the facts concerning the returned item and related information to a credit-reporting agency.
4. ADDRESS CHANGES
You agree to promptly notify the Bank of any address change, by calling Electronic Banking at (504) 584-5970. You may be requested to submit this information in writing within fourteen (14) days the call.
5. PAYEE LIMITATION
The Bank reserves the right to refuse to pay any Payee to whom you may direct a payment for security reasons or any other reason. The Bank will notify you promptly if the Bank decides to refuse to pay a Payee designated by you. If you attempt to make a prohibited payment under this Agreement, notification is not required.
6. INFORMATION AUTHORIZATION
Your enrollment in ONLINE BILL PAY may not be accepted if the Bank cannot verify your identity or other necessary information. Through your enrollment in ONLINE BILL PAY, you agree and authorize the Bank to request a review of your credit rating at the Bank’s own expense through an authorized credit bureau. In addition, you agree and authorize the Bank to obtain financial information regarding your account from a Payee to resolve payment-posting problems.
You are responsible for obtaining, installing, maintaining and operating all computer hardware, software and Internet access services necessary for accessing and using any Bank Internet-based Services, including ONLINE BILL PAY. The Bank will not be responsible for any errors or failures from the malfunction or failure of your hardware, software or any Internet access services.
8. BUSINESS DAYS/HOURS OF OPERATION
The Bank's business days are Monday through Friday, except Federal Reserve, state, and local holidays. Online Banking Personal Banking Services are available 24 hours a day, 7 days a week except during maintenance periods or circumstances beyond the Bank’s reasonable control. All Internet Online Banking transactions initiated after the Bank's Cutoff Time will be considered as initiated on the next Business Day.
9. LIMITATION OF ACCESS/SECURITY
The Bank may terminate Online Banking Personal Banking Services and/or ONLINE BILL PAY in whole or in part at any time without prior notice. The Bank reserves the right to limit or suspend your access to Online Banking Personal Banking Services and/or ONLINE BILL PAY at any time. In order to maintain secure communications and reduce fraud, you agree to protect the security of your account numbers, access codes and any other means of identification (including, without limitation, Access IDs and Passwords). The Bank reserves the right to block access to Online Banking Personal Banking Services and/or to ONLINE BILL PAY to maintain or restore security to the Bank’s web site and systems, if the Bank reasonably believes your account numbers, access codes and/or any other means of identification have been or may be obtained or are being used or may be used by any unauthorized person(s).
10. YOUR RESPONSIBILITY
Use of your Access ID and Password is the agreed security procedure to access Online Banking Personal Banking Services and ONLINE BILL PAY. In order to prevent unauthorized access to your accounts and to prevent unauthorized use of Online Banking Personal Banking Services and ONLINE BILL PAY, you agree, by using Online Banking Personal Baking Services and ONLINE BILL PAY, to keep confidential and to not give or make available your Access ID, Password or other means to access your accounts to any person not authorized to access your accounts. The loss, theft or unauthorized use of your Access IDs and Passwords could cause you to lose some or all of the money in your accounts, plus any amount available under your overdraft protection credit line. If you disclose your Access IDs and/or Passwords to any person(s) or entity(ies), whether intentionally or unintentionally, you assume all risks and losses associated with such disclosure. You are responsible for all transfers and Bill Payments you authorize using Online Banking Personal Banking Services and/or ONLINE BILL PAY. If you permit any other person(s) or entity to use Online Banking Personal Banking Services or ONLINE BILL PAY or to access or use your Access IDs, Passwords, identifying information or other means to access your accounts, you are responsible for any and all transactions and activities they authorize from your accounts. You agree to immediately notify the Bank by calling (504) 584-5970 during normal customer service hours of any unauthorized use of your Access IDs and Passwords or of any other breach of security, or if you believe someone may attempt to use Online Banking Personal Banking Services or ONLINE BILL PAY without your consent or has transferred money without your permission.
THE FOREGOING SHALL CONSTITUTE THE BANK’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL THE BANK BE LIABLE FOR ANY LOSS, INJURY OR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST PROFITS, CAUSED BY ONLINE BANKING, PERSONAL BANKING SERVICES OR ONLINE BILL PAY, OR THE USE THEREOF, OR ARISING IN ANY WAY OUT OF THE INSTALLATION, USE OR MAINTENANCE OF YOUR PERSONAL COMPUTER HARDWARE, EQUIPMENT, SOFTWARE OR ANY INTERNET ACCESS SERVICES.
12. WARRANTIES DISCLAIMER
ONLINE BANKING PERSONAL BANKING SERVICES AND ONLINE BILL PAY, AND RELATED DOCUMENTATION ARE PROVIDED "AS IS", AND THE BANK DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, CONCERNING THE HARDWARE, THE SOFTWARE OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. ERRORS OR QUESTIONS
In case of errors or questions about Online Banking Personal Banking Services and/or ONLINE BILL PAY, call Electronic Banking at (504) 584-5970, or write to the Bank at First Bank and Trust c/o Electronic Banking, PO Box 1830, Covington, LA 70434.
14. MISCELLANEOUS TERMS
In addition to this Agreement, you agree to comply with all applicable account agreements, including, without limitation, the Deposit Account Agreement that you received when opening your depository account, as amended, and with all applicable State and Federal laws and regulations.
The Bank may amend or change this Agreement (including applicable fees and service charges) by sending you a notice by e-mail or by regular mail to your address as it appears on your account records. You agree the Bank may also send you future notices and disclosures about your accounts with the Bank by e-mail, where permitted by law. Any use of Online Banking Personal Banking Services and ONLINE BILL PAY after the Bank sends you a notice of change will constitute your agreement to such change(s). Further, the Bank may, from time to time, revise or update the programs, services and/or related material, which may render all such prior versions obsolete. Consequently, the Bank reserves the right to terminate this Agreement as to all such prior versions of the programs, services, and/or related material, and to limit access to Online Banking Personal Banking Services and/or ONLINE BILL PAY more recent revisions and updates.
The Bank shall not be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Bank. No delay or omission on the Bank’s 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.
Please refer to the Deposit Account Agreement you received when opening your depository account, as amended, for additional terms and conditions and disclosures that apply to your accounts with the Bank, as this Agreement is an addendum to such Understanding Your Deposit Account Agreement, as amended.
15. HARM TO COMPUTER SYSTEMS/DATA
You agree the Bank will not be responsible or liable for any direct, indirect, incidental or consequential damages which may result from harmful components such as viruses, worms, Trojan horses, or other harmful components that may enter your computer system by using Online Banking Personal Banking Services or ONLINE BILL PAY, or by downloading information, software, or other materials from the Bank’s web site.
16. OWNERSHIP OF MATERIALS
The content and information on the Bank’s web site is copyrighted by First Bank and Trust and the unauthorized reproduction or distribution of any portion is prohibited. The Bank’s logos and products are trademarked and service-marked and may not be used without the Bank’s permission. Trademarks or service-marks of others that are referenced on the Bank’s web site are the property of their respective owners. No part of these pages or screens may be copied (except as strictly necessary for you to view these materials on your own computer), republished, redistributed, modified, or otherwise used or exploited by you, without our prior written consent.
III. MOBILE BANKING
Below sets forth the additional terms and conditions for use of the Mobile Banking Services (“Mobile Money”) offered through First Bank and Trust to you.
A. Acceptance of Mobile Banking
By clicking “I Agree” when you register for Mobile Banking Services (“Mobile Money”) or by using the Mobile Banking Services, you agree to the terms and conditions of mobile banking.
1. Description of Services
Mobile Banking is a personal financial information management service that allows you to:
· access First Bank and Trust account information such as balances and recent transaction history;
· transfer funds between your accounts;
· set up optional account alerts to be delivered either to your mobile phone using sms text messaging (standard text rates apply), and/or via email;
· make payments to merchants and individuals who have previously consented to accept payments through our online bill pay service;
· make other banking transactions using compatible and supported mobile phones and/or other compatible and supported wireless devices.
2. Use of Services
Mobile Banking will not work unless you use it
properly. You accept responsibility for understanding
how to use Mobile Banking before using, and that you always use Mobile Banking
in accordance with any online instructions that may be delivered to you. You
also accept responsibility for making sure that you know how to properly use
your Wireless Device and the Mobile Banking software (“Software”).
3. Relationship to Other Agreements
You agree that when you use Mobile Banking, you will remain subject to the terms and conditions of all existing agreements with us and our affiliates. You also agree that you will continue to be subject to the Terms and Conditions of your existing agreements with any unaffiliated service providers, including, but not limited to, your mobile service carrier or provider (e.g., AT&T, Verizon, Sprint, T-Mobile, Alltel, etc.), and that this Agreement does not amend or supersede any of those agreements. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of Mobile Banking (for example, your mobile service carrier or provider may impose data usage or text message charges for your use of or interaction with Mobile Banking, including while downloading the Software, receiving or sending Mobile Banking text messages, or other use of your Wireless Device when using the Software or other products and services provided by Mobile Banking), and you agree to be solely responsible for all such fees, limitations and restrictions. You agree that only your mobile service carrier or provider is responsible for its products and services, and that your mobile service carrier is not the provider of Mobile Banking. Accordingly, you agree to resolve any problems with your carrier or provider directly with your carrier or provider without involving us. You also agree that if you have any problems with Mobile Banking, you will contact us directly.
B. MOBILE BANKING SOFTWARE LICENSE AGREEMENT
Subject to any compliance with this Agreement, you are hereby granted a personal, limited, non-transferable, non-exclusive, non-sub licensable and non-assignable license (“License”) to download, install and use the Software on your Wireless Device within the United States and its territories. In the event that you obtain a new or different Wireless Device, you may be required to download and install the Software to that new or different Wireless Device.
2. License Restrictions/Revocation
This License shall be revoked immediately upon any of the following conditions:
· your termination of Mobile Banking;
· your deletion of the Software from your Wireless Device;
· your noncompliance with this Agreement;
· written notice to you at any time, with or without cause.
The Software shall be used solely in connection with Mobile Banking and may not be used by you for any other reason. You may not grant any sublicenses to the Software. You agree that you will not (i) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or Software, (ii) copy or reproduce all or any part of the technology or Software, or (iii) interfere, or attempt to interfere with the technology or Software. The Software does not include various third party operating systems and applications that will be required to use the Software. You will be solely responsible for such third party software. You acknowledge that the Software contains trade secrets and other proprietary and confidential information, whether or not the Software contains any copyright or other proprietary notice. You agree to take commercially reasonable precautions to protect the confidentiality of the Software. You (a) will not print, copy, or duplicate any portion of the Software, (b) will not alter any copyright notices on the Software, (c) will not make the Software available in any form to anyone except your agents for purposes specifically related to your authorized use, (d) will take appropriate action with any persons permitted access to the Software to inform them of the confidential nature thereof and to obtain their compliance with the terms of this Paragraph, (e) only will use the Software for your personal use and not for the benefit of any other person or entity, and (f) will comply with all of our procedures and requirements for use of the Software. The provisions of this Paragraph will survive termination of this Agreement.
C. YOUR OBLIGATIONS
When you use Mobile Banking to access accounts designated during the registration process, you agree to the following:
1. Account Ownership/Accurate Information
You represent that you are the legal owner of the accounts and other financial information that may be accessed via Mobile Banking. You represent and agree that all information you provide to us in connection with Mobile Banking is accurate, current and complete, and that you have the right to provide such information. You also agree not to misrepresent your identify or your account information. You agree to keep your account information up to date and accurate. You agree that we and our service providers may send you, by sms text message, e-mail, and other methods, communications relating to Mobile Banking (with an opportunity to opt-out), including without limitation welcome messages, information and requests for information relating to use of Mobile Banking and other Online Banking services. You agree to use Mobile Banking carefully, to keep your password confidential and secure and not share it with others, to check your statements and transactions regularly, to report any errors to us promptly by calling us at 504-584-5970 and to cancel immediately your participation in Mobile Banking if you observe any material errors in the Mobile Banking Services.
2. Location-Based Information
If you use any location-based feature for Mobile Banking you agree that your geographic location and other personal information may be accessed and disclosed through Mobile Banking. If you wish to revoke access to such information you may cease using location-based features of Mobile Banking.
3. Export Control
You acknowledge that the Software is subject to the United States (U.S.) government export control laws and regulations, which may restrict or prohibit the use, export, re-export, or transfer of the Software. You agree that you will not directly or indirectly use, export, re-export, or transfer the Software except in compliance with applicable U.S. export laws and regulations. Without limitation, you agree that you will not use Mobile Banking in any embargoed or sanctioned country.
4. Proprietary Rights
You are permitted to use content delivered to you through Mobile Banking only on Mobile Banking. You may not copy, reproduce, distribute, or create derivative works from this content. Further, you agree not to reverse engineer or reverse compile any Mobile Banking technology, including, but not limited to, any Software or other mobile phone applications associated with Mobile Banking.
5. User Conduct
You agree not to use Mobile Banking or the content or information delivered through Mobile Banking in any way that would: (a) infringe any third-party copyright, patents, trademark, trade secret, or other proprietary rights or rights of publicity or privacy, including any rights in the Software; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of Mobile Banking 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 or false advertising); (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 Mobile Banking; (i) interfere with or disrupt the use of Mobile Banking by any other user; or (j) use Mobile Banking in such a manner as to gain unauthorized entry or access to the computer systems of others.
6. No Commercial Use or Re-Sale
You agree that the Mobile Banking Services are for personal use only. You agree not to resell or make commercial use of Mobile Banking.
You agree to indemnify, defend, and hold us and our affiliates and service providers harmless from and against any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) caused by or arising from your use of Mobile Banking, your violation of this Agreement, your violation of applicable federal, state or local laws, regulations or ordinances, or your infringement (or infringement by any other user of your account) of any intellectual property or other right of anyone.
D. CHARGES FOR THE SERVICE
You agree to pay for Mobile Banking in accordance with our current fee schedule and as amended from time to time. We will advise you of any fee changes prior to implementing them. You authorize us to automatically charge your account for all such fees incurred in connection with Mobile Banking. In the future, we may add to or enhance the features of Mobile Banking. By using such added or enhanced features, you agree to pay for them in accordance with our Schedule of Fees.
1. ADDITIONAL PROVISIONS
a) Mobile Banking Services Limitations
· Neither we, nor any of our service providers, including Fiserv, can always foresee or anticipate technical or other difficulties related to Mobile Banking. These difficulties may result in loss of data, personalization settings or other Mobile Banking interruptions.
· Neither we, nor any of our service providers, including Fiserv, assume responsibility for any disclosure of account information to third parties, the timeliness, deletion, failed delivery or failure to store any user data, communications, or personalization settings in connection with your use of Mobile Banking.
· Neither we, nor any of our service providers, including Fiserv, assume responsibility for the operation, security, functionality or availability of any wireless Device or mobile network that you utilize to access Mobile Banking.
· You agree to exercise caution when utilizing the Mobile Banking application on your Wireless Device and to use good judgment and discretion when obtaining or transmitting information.
· Information about activity is synchronized between the Mobile Banking software and our Website. Transfer and payment information available via the Mobile Banking software may differ from the information that is available directly through our website. Information available directly through our website may not be available via the Mobile Banking software, may be described using different terminology, or may be more current that the information available via the Mobile Banking software, including but not limited to account balance information. The method of entering instructions via the Mobile Banking software also may differ from the method of entering instructions through our website. We are not responsible for such differences, whether or not attributable to your use of the Mobile Banking software. Additionally, you agree that neither we nor our service providers will be liable for any errors or delays in the content, or for any actions taken in reliance thereon.
b) Changes or Cancellation
You may cancel your participation in Mobile Banking by calling us at 504-584-5970. We reserve the right to change or cancel Mobile Banking at any time without notice. We may also suspend your access to Mobile Banking at any time without notice and for any reason including but not limited to, your non-use of Mobile Banking Services. You agree that we will not be liable to you or any third party for any modification or discontinuance of Mobile Banking.
c) Use of Data
We, and our service providers, will use information you provide for purposes of providing the Mobile Banking Services and to prepare analyses and compilations of aggregate customer data that does not identify you (such as the number of customers who signed up for Mobile Banking in a month).
d) Third Party Beneficiary
You agree that our service providers may rely upon your agreements and representations in this Addendum, and such service providers are third party beneficiaries to this Agreement, with the power to enforce its provisions against you.
e) Limitations and Warranty Disclaimers
We and our service providers disclaim all warranties relating to the Mobile Banking Services or otherwise in connection with this Agreement, whether oral or written, express, implied or statutory, including, without limitation, the implied warranties of merchantability, fitness for particular purpose and non-infringement. Neither we nor our service providers will be liable to you or any third party for any indirect, incidental, exemplary, special, punitive or consequential damages of any kind, or for any loss of profits, business, or data, whether based in statute, contract, tort or otherwise, even if we or our service providers, as applicable, have been advised or, or have reason to know of, the possibility of such damages. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Except to the extent prohibited by applicable banking regulations, under no circumstances will the total liability of us or our service providers to you in connection with the Mobile Banking Services exceed $5,000.
IV. MOBILE DEPOSIT
Your use of the First Bank and Trust Mobile Deposit Service is governed by the terms of the Online Banking Agreement. Your enrollment in the First Bank and Trust Mobile Deposit Service constitutes your agreement with the terms of the Online Banking Agreement. Terms used herein but not defined shall have the meaning assigned to them in the Online Banking Agreement. You acknowledge that you have read this Agreement and will retain a copy for your records. In this Agreement, the words "you" and "your" refer to you as the person or business entity entering into this Agreement. The words “you” and “your” also include any user you authorize to use the First Bank and Trust Mobile Deposit Service on your behalf. The words "we," "us," and "our" refer to First Bank and Trust.
A. Mobile Deposit Service
1. Description of the First Bank and Trust Mobile Deposit Service.
This Service enables you to use a First Bank and Trust Mobile Banking application and certain hardware (such as a smartphone or other mobile device) approved by us to (i) create electronic images of the front and back of certain Paper Items1 and (ii) 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. “Electronic Item” means the electronic image of each Paper Item and other information captured from the Paper Item. After we receive your transmission, we will review each Electronic Item. For each Electronic Item that we determine is eligible for processing as described below, we will:
In order to enroll in the Service, you must be designated as an authorized signer or owner of a First Bank and Trust Account (the “Account”) that is eligible for this Service, and be approved by First Bank and Trust. Criteria required:
· You must be a customer in good standing with a relationship greater than six (6) months.
· You must not have had any chargebacks (deposits drawn on accounts with insufficient funds) to your account in the past twelve (12) months.
· You must not have not been overdrawn more than six(6) times in the twelve (12) month period preceding the enrollment request.
3. Conditions to Provision of the Service
As conditions to Bank’s provision of the Service, you shall (a) maintain the Account in good standing, (b) subscribe to First Bank and Trust Online Banking, and (c) comply with such restrictions on the Service as we may communicate to you from time to time.
We may, upon at least thirty (30) days prior notice to you, to the extent required by applicable law, charge a fee for use of the Service. The Service is provided with a $0.50 per item deposited. If you continue to use the Service after the fee becomes effective, you agree to pay the service fee that has been disclosed to you, as may be amended from time to time. Further, you will be required to designate an account at First Bank and Trust from which fees for the Service will be debited (your "Billing Account").
Any applicable fees for the Service may be changed by us at our discretion at any time upon at least thirty (30) days prior notice to you, to the extent required by applicable law. If the Billing Account is closed, or if the Billing Account does not have sufficient available funds to cover the fees, you authorize us to charge any such fees to any other deposit account you maintain with us.
In order to use the Service, you must use the type of hardware that we designate. Any hardware that we provide to you free of charge will, at all times, remain the sole property of First Bank and Trust. Upon termination of the Service, you must promptly return any hardware that we provided to you free of charge.
5. Creating and Transmitting Electronic Items to First Bank and Trust
You shall use hardware approved by First Bank and Trust, and the First Bank and Trust Online Banking System to create electronic images of checks and other Paper Items that you wish to deposit to your Account by means of the Service, and to transmit your Electronic Items to us. The following items may not be deposited through the Service: international checks, remotely created checks (whether in paper form or electronically created), checks drawn against a line of credit, or cash. Except as noted in the preceding sentence, only checks, money orders, cashier’s checks, or traveler’s checks, drawn on or payable at or through a U.S. bank, can be transmitted through the Service. Additionally, only Items that are made payable to, and indorsed by, you may be transmitted through the Service.
6. Processing Your Electronic Item(s)
If you transmit your Electronic Item(s) to First Bank and Trust before the cut-off time we separately disclose to you (the “Cut-Off Time”), on any Business Day2, we shall review and process your Electronic Item(s) on that Business Day. If you transmit your Electronic Item(s) to us after the Cut-Off Time on any Business Day, we shall review and process your Electronic Item(s) on the next Business Day. Your Electronic Item(s) is deemed to have been received by the Bank when the Service generates a confirmation message.
7. Exception Items
Each Business Day on which we review and process your Electronic Item(s), we will use commercially reasonable efforts to review each Electronic Item and to reject any Electronic Item that we in our sole discretion determine to be ineligible for the Service (an “Exception Item”). “Exception Item” includes, without limitation, an Electronic Item that (a) is illegible or contains MICR data that is not machine-readable, (b) was previously processed as an Electronic Item, or (c) is drawn on banks located outside the United States and is not payable at or through a bank located within the United States. We will notify you of each Exception Item through the First Bank and Trust Online Banking Service, or other communication channels at our discretion. If you wish to attempt to deposit any Exception Item to your Account, you shall do so only by depositing the original Paper Item on which the Exception Item is based or as otherwise agreed between us. Even if we do not initially identify an Electronic Item as an Exception Item when we review and process the Electronic Item to which the Exception Item relates, the Electronic Item, substitute check, or the purported substitute check created by us from it may nevertheless be returned to us because, among other reasons, the Paying Bank determines that such item or check is illegible or missing an image. Our failure to identify an Exception Item shall not preclude or limit the obligation of you to First Bank and Trust under Paragraph 10.
8. Deposits to the Account
Subject to our right to identify and reject Exception Items, we shall be deemed to have accepted each Electronic Item that is not an Exception Item for deposit to the Account on the Business Day that we process the Electronic Item, provided its transmission to us is prior to the Cut-Off Time. In addition, an Electronic Item will be deemed to have been deposited at the office where the Account is maintained.
9. Security Procedures
Any individual authorized by you to access the Service (a “User”) shall do so by entering a user name and a password, or other unique identifier that may be required (collectively referred to herein as “Security Credentials”). No person employed by First Bank and Trust shall have access to any Security Credentials you or your Users create. From time to time, we may require you to use additional security and authentication procedures, as specified in the online banking agreement.
You represent and warrant to First Bank and Trust that:
FAILURE TO PROTECT YOUR HARDWARE AND SECURITY CREDENTIALS MAY ALLOW AN UNAUTHORIZED PARTY TO ACCESS THE SERVICE AND TRANSMIT AN ELECTRONIC ITEM FOR DEPOSIT. ALL USES OF THE SERVICE THROUGH YOUR SECURITY CREDENTIALS WILL BE DEEMED TO BE USES AUTHORIZED BY YOU AND BE BINDING UPON YOU. YOU ASSUME THE ENTIRE RISK FOR THE FRAUDULENT OR UNAUTHORIZED USE OF YOUR SECURITY CREDENTIALS. YOU AGREE TO (i) EXERCISE RESPONSIBLE BEHAVIOR WHEN USING THE SERVICE, (ii) FOLLOW THE INSTRUCTIONS AND RECOMMENDATIONS THAT FIRST BANK AND TRUST PROVIDES YOU WITH RESPECT TO THE SERVICE AND (iii) USE MAXIMUM CAUTION IN PROTECTING YOUR HARDWARE AND SECURITY CREDENTIALS FROM UNAUTHORIZED ACCESS. YOU AGREE TO NOTIFY FIRST BANK AND TRUST IMMEDIATELY IF YOU BECOME AWARE OF ANY LOSS OR THEFT OF, OR ANY UNAUTHORIZED USE OF THE SERVICE OR YOUR SECURITY CREDENTIALS.
· You will use the Service only for Paper Items that are payable to, and endorsed by, you.
· You will properly secure all hardware you use in connection with the Service (including, but not limited to, securing the hardware with Security Credentials to prevent unauthorized use). You will maintain control over and be responsible for secure retention, storage, and destruction of original Paper Items for which you have created an Electronic Item. After transmitting the Electronic Item to us, you will retain the original Paper Items for a minimum of five (5) calendar days, but no longer than fourteen (14) calendar days, from the transmission date (“Retention Period”). You will retain and store the original Paper Items in a secure and locked container that is only accessible by persons needing access to such Paper Items. During the Retention Period and upon our request, you agree to provide us with the original Paper Item(s). Once the Retention Period has expired, you will securely and irretrievably destroy original Paper Items from which you have previously created and submitted to us an Electronic Item.
· You will not submit any duplicate Electronic Items to us.
· You will not deposit to your Account or otherwise negotiate any original Paper Item from which you have previously created and submitted to us an Electronic Item, unless we have notified you that the Electronic Item is an Exception Item.
· You will transmit to us only Electronic Items that are suitable for processing, including, but not limited to, Electronic Items that are legible and contain machine-readable MICR data.
· You will review and verify for accuracy the information contained in the Electronic Item(s) before you transmit it to us.
· You will only transmit Electronic Item(s) that are drawn on or payable at or through banks located within the United States.
· You will not store or make a back-up copy of the Electronic Item(s).
· Any User of the Service is at least 18 years of age.
You will indemnify, defend, and save harmless First Bank and Trust, its parent company and its affiliates and each of their respective directors, officers, employees, and agents (collectively in this Paragraph 11, “Indemnitees”) from and against all liabilities, damages, claims, obligations, demands, charges, costs, or expenses (including reasonable fees and disbursements of legal counsel and accountants) awarded against or incurred or suffered (collectively, "Losses and Liabilities") by Indemnitees arising directly or indirectly from or related to the following (except for Losses and Liabilities arising directly or indirectly from or related to our own gross negligence or willful misconduct):
· Any negligent or intentional act or omission by you in the performance of your obligations under this agreement including, but not limited to, (i) duplicate scanning of the same original Paper Item, (ii) transmission of duplicate Electronic Items, (iii) calculation errors of deposit totals, (iv) numerical errors on deposit data entry, and (v) fraudulent or unauthorized use of your hardware or Security Credentials.
· Any material breach in a representation, warranty, covenant, or obligation of you contained in this Agreement;
· The violation of any applicable law, statute, or regulation in the performance of your obligations under this Agreement;
· First Bank and Trust acting as a "reconverting bank" under the Check Clearing for the 21st Century Act through the creation of “substitute checks” or purported substitute checks using an Electronic Item or an illegible Electronic Item;
· Our presenting to Paying Bank an Electronic Item for payment; and
· Your failure to (i) securely maintain your hardware or the original Paper Items, or (ii) properly and timely dispose of original Paper Items in accordance with Paragraph 10, in which event such Losses and Liabilities shall include without limitation consequential damages.
This Paragraph 11 shall survive the termination of the Service.
You or we may terminate the Service at any time. In the event your use of the Service is terminated, we may require you to return any hardware that we provided to you free of charge.
13. Right To Audit
We may periodically audit and verify your compliance with this Agreement. You agree to cooperate and provide information or documents, at your expense, as may be reasonably requested by First Bank and Trust in the course of such audit.
14. Entire Agreement; Conflicting Terms
This Agreement forms part of and is incorporated by reference into the
Online Banking Agreement (“OBA”). The OBA
remains in full force and effect. In the
event of any conflict between this Addendum and the OBA, this Addendum shall
govern with respect to the Service.
2 A ‘Business Day’ is every day except Saturday, Sunday, Federal and other FBT Board of Director approved holidays, and would also exclude closures in certain disaster events.
V. ONLINE DEPOSIT
Bank offers the Consumer Source CaptureTM Program (“Program”) for the electronic clearing of checks, which enables you to convert checks to electronic items and to transmit those items electronically for deposit into your account at FBT. Individuals use the Program to electronically transmit and process checks for deposit and collection purposes.
Capitalized terms used in this Agreement shall have the meanings indicated herein.
FBT shall provide to you the Services described in this Agreement to enable you to use the Program to convert Checks to Electronic Items for the processing of such Checks electronically.
Subject to the terms and conditions of this Agreement, FBT hereby grants you a non-exclusive, non-transferable license to: (i) use the Software for those portions of the Program selected by Individual, solely for processing Checks in connection with Individual's own personal or business operations, in accordance with the Documentation; and (ii) copy and use the Documentation solely to support Individual's authorized use of the Software.
You represent and warrant that with respect to each Check processed hereunder and the corresponding Electronic Item: (i) the Electronic Item is a digitized image of the front and back of the Check and accurately represents all of the information on the front and back of the Check as of the time you converted the Check to an Electronic Item; (ii) the Electronic Item contains all endorsements applied by parties that previously handled the Check in any form for forward collection or return; and (iii) all transfer and presentment warranties made under applicable law and the Account Agreement. If you capture a digital image of a previously truncated and reconverted Substitute Check for processing, you shall ensure that such Substitute Check meets the requirements for legal equivalency under Regulation CC and the identifications of previous truncating and reconverting Financial Institution(s) (as such terms are defined in Regulation CC) are preserved. You may be subject to restrictions such as per item dollar limits, aggregate dollar volume limits, or other limits as set by the Financial Institution.
FBT maintains the security and integrity of its servers, software and network connections. However, any computer you use to connect to our system(s) must be seen as an integral part of the overall security of Consumer Source Capture™. It is strongly recommended that you purchase and maintain commercial Anti-Virus and Malware protection for any computer that will be used to scan and transmit check images. The security of computers owned and controlled by you is your responsibility. Any damages or claims arising from inadequate security of computers and/or network equipment or software owned or operated by you is solely your responsibility.
The term of this Agreement shall commence upon execution hereof and shall continue thereafter until terminated as follows: (i) by either party upon thirty (30) days written notice to the other party, for any reason; (ii) by Financial Institution upon ten (10) days written notice to Individual for Individual's failure to pay Financial Institution any amount due to Financial Institution under this Agreement if such breach is not cured within such ten (10) day period; or (iii) by Financial Institution immediately with written notice to Individual if Financial Institution discovers any willful misconduct (including bad checks or fraudulent activities) on the part of Individual or any other party with respect to Checks or Electronic Items processed by Individual.
Any termination will not affect obligations arising prior to termination, such as the obligation to process any Checks and Electronic Items, including returned Electronic Items that were in the process of being transmitted or collected prior to the termination date. Within thirty (30) days after termination of this Agreement, you will return or destroy all copies of the Documentation in your possession or under your control. In addition, you will keep your Account at FBT open until the later of (i) sixty (60) days after the date of termination, or (ii) final payment with respect to all processing fees, and will keep in such Account an amount sufficient to cover any remaining outstanding checks. If any such outstanding checks or returned items exceed the amount in the Account, you will pay such excess to Financial Institution upon demand. You will also continue to retain Checks for a period of no less than five (5) and no more than fourteen (14) days after your account is closed. You agree not to develop a product substantially similar to the Program during the term hereof or within three (3) years after termination of this Agreement.
All Sections of this Agreement which are intended by their terms to survive termination of this Agreement, including without limitation Sections F, H, I, J, K,L, M, N, P, R and U, will survive any termination of this Agreement.
G. Confidential Information
FBT acknowledges that it may obtain or have access to non-public personal information regarding you and your Payors, and agrees to (i) maintain the confidentiality, integrity and security of such information, (ii) use such information only for the purposes set forth in this Agreement and the Account Agreement, including without limitation for the performance of its obligations and exercise of its rights hereunder, (iii) disclose such information only to its employees, agents, auditors, accountants, attorneys and regulators, and only as necessary to perform its obligations and exercise its rights hereunder, or as otherwise permitted by law, and (iv) maintain physical, technical, procedural and administrative controls and safeguards reasonably designed (taking into account the nature and circumstances of FBT's business) to ensure the security, integrity and confidentiality of such information, and to protect against any anticipated threats or hazards to the security or integrity of, or unauthorized access to, such information.
You will indemnify and hold harmless FBT, its licensors and providers of the Services, and their respective directors, officers, shareholders, employees and agents, 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 resulting from (i) your wrongful acts or omissions, or any person acting on your behalf, arising in connection with your use of the Program or processing of Checks hereunder, including without limitation (a) a breach by you of any provision, representation or warranty of this Agreement, (b) the negligence or willful misconduct (whether by act or omission) of you, your Payors, or any third party on behalf of yourself, (c) any modifications or changes to the Software made by you or any third party within your control or on behalf of yourself, (d) any misuse of the Program by you or any third party within the control or on behalf of Individual, (e) any misuse of non-public confidential information including improper use of confidential information, or improper methods of storage or disposal of original checks (f) your failure to comply with applicable state and federal laws and regulations; (ii) any act or omission of FBT that is in accordance with this Agreement or instructions from you; (iii) actions by third parties, such as the introduction of a virus, that delay, alter or corrupt the transmission of an Electronic Item to FBT; or (iv) any claim by any recipient of a Substitute Check corresponding to a Check processed by you hereunder, that such recipient incurred loss due to the receipt of the Substitute Check instead of the Original Check.
FBT will not be liable for any of the following, unless liability or loss is a result of FBT's breach of this Agreement or the gross negligence or willful misconduct of FBT or its employees or agents: (i) any damages, costs or other consequences caused by or related to FBT’s actions that are based on information or instructions that you provide to FBT; (ii) any unauthorized actions initiated or caused by Individual or its employees or agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom FBT has delegated the performance of specific obligations provided in this Agreement; (iv) any refusal of a Payor Financial Institution to pay an Electronic Item or Substitute Check for any reason (other than the breach of contract, negligence or willful misconduct of FBT), including without limitation that the Check, Electronic Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) any other party's lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party's own internal systems, or (vii) any of the matters described in Section I above.
FBT’s liability for errors or omissions with respect to the data transmitted or printed by FBT will be limited to correcting the errors or omissions. Correction will be limited to reprinting and/or representing Substitute Checks or Electronic Items to the Payor Financial Institution.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FBT'S AGGREGATE LIABILITY TO YOU FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, AND ARISING DURING ANY TWELVE MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY YOU TO FBTFOR SUCH TWELVE MONTH PERIOD.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOOD WILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FBT AND YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE BARGAINED FOR ALLOCATION OF RISK AND LIABILITY, AND AGREE TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.
FBT'S REPRESENTATIONS, WARRANTIES, OBLIGATIONS AND LIABILITIES, AND YOUR RIGHTS AND REMEDIES, SET FORTH IN THIS AGREEMENT, ARE EXCLUSIVE. THE SOFTWARE IS PROVIDED BY FBT AND IT'S LICENSORS "AS IS". YOU HEREBY WAIVE AND RELEASE FBT AND ITS LICENSORS AND THEIR RESPECTIVE OWNERS, OFFICERS, AND EMPLOYEES FROM ALL OTHER REPRESENTATIONS, WARRANTIES OF ANY NATURE, OBLIGATIONS, AND LIABILITIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, SUPPORTED EQUIPMENT AND ANY AND ALL MATTERS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION:
(i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, PURPOSE OR APPLICATION, OR OTHER IMPLIED CONTRACTUAL WARRANTY; (ii) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (iii) ANY WARRANTIES OF TIMELINESS OR NON-INFRINGEMENT; AND (iv) ANY OTHER WARRANTY WITH RESPECT TO QUALITY, ACCURACY OR FREEDOM FROM ERROR. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER FBT NOR ITS LICENSORS WARRANT THAT OPERATION OF THE SOFTWARE OR THE SUPPORTED EQUIPMENT WILL BE ERROR-FREE OR UNINTERRUPTED.
FBT may (i) amend the provisions of this Agreement that govern the procedures and functions of the Program, and any such amendment will become effective (a) thirty (30) days after you receive notification, (b) upon such later date as may be specified in such notification, or (c) at such earlier date as FBT may reasonably require if such amendment is necessary or advisable in connection with statutory or regulatory changes or to protect the integrity, security or operability of the Program; and (ii) amend this Agreement as otherwise provided herein.
No other amendment to this Agreement shall be effective until signed by both parties to this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the state of Louisiana, excluding its conflict of law principals. The parties shall submit to venue in and jurisdiction of the courts as provided in the Account Agreement.
Any dispute, controversy or claim arising out of or based upon the terms of this Agreement or the transactions contemplated hereby shall be resolved by arbitration pursuant to the terms of the Account Agreement; provided, however, that any dispute, controversy or claim relating to intellectual property rights with respect to the Software or Documentation shall not be subject to resolution by arbitration.
Neither party may assign its rights nor delegate its duties under this Agreement without the other party's prior written consent, which will not be unreasonably withheld or delayed. Notwithstanding the foregoing, FBT may assign this Agreement to an affiliate or subsidiary without your prior consent, provided that FBT remains primarily liable for the performance of its obligations under this Agreement. Any attempted assignment or delegation without the required consent will be void.
O. Attorney's Fees
If any action is brought by either party against the other regarding the subject matter of this Agreement, including any court action or arbitration proceeding, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorneys’ fees, court costs, expert witness fees and other expenses of action.
Each party will comply with all applicable federal, state and local laws and regulations with respect to this Agreement and such party's activities covered by or related to this Agreement.
Section headings used herein are for the convenience of reference only, and shall not affect the meaning or interpretation of this Agreement. This Agreement shall be deemed to have been drafted by both parties, and in the event of dispute, no party shall be entitled to claim that any provision hereof should be construed against the other party by reason of the fact that it was drafted by any particular party. The failure of either party to enforce any rights granted under this Agreement or to take action against the other party in the event of any breach shall not be considered a waiver of that right or breach unless the waiver has been reduced to writing and signed by the waiving party. If a party effectively waives a right or breach, that waiver will not constitute a waiver of any other right or breach or of a subsequent breach of the same obligation. If any provision of this Agreement is held invalid, illegal or unenforceable in any particular jurisdiction or circumstance, the remaining provisions of this Agreement shall remain valid and enforceable in such jurisdiction or circumstance, and such provision shall remain valid and enforceable in any other jurisdiction or circumstance.
This Agreement supplements the terms of the Account Agreement. This Agreement, the Exhibits and Schedules to this Agreement (as may be amended from time to time), and the Account Agreement constitute the entire agreement between you and FBT with respect to the subject matter hereof, supersede any prior agreements between you and FBT with respect to the subject matter hereof, and shall be binding upon you, FBT, and their respective successors and permissible assigns. In the event of any inconsistency between this Agreement and the Documentation or any Account Agreement, this Agreement will govern.
S. Force Majeure
Except for the obligation to make payments, nonperformance by either party will be excused to the extent performance is prevented or delayed due to causes beyond such party's reasonable control and without its negligent or willful misconduct, including without limitation acts of God, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.
T. Injunctive Relief
Notwithstanding Section M of this Agreement, each party acknowledges that its violation of Sections E, I or P of this Agreement may cause irreparable injury to the other party, and agrees that the other party shall be entitled to seek temporary and preliminary injunctive relief in a court of competent jurisdiction, without the necessity of proving actual damages or posting a bond, to prevent such violation.
All notices permitted or required under this Agreement will be in writing and will be deemed given upon actual delivery. Any notice will be addressed to the party as follows:
First Bank and Trust
V. Relationship between Parties
This Agreement will not be construed as creating an agency, partnership, joint venture, or any other form of association, for tax purposes or otherwise, between the parties, and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
W. Security Interest
You grant FBT a security interest in the Account, including any present and future principal and interest, as collateral security for your Performance hereunder.
X. Third-Party Beneficiaries
This Agreement is for the sole and exclusive benefit of you and FBT and is not intended to benefit any third party, except FBT’s licensors. You and FBT acknowledge and agree that any party that licenses the Software to FBT, directly or indirectly through one or more sub-licensees, is a third party beneficiary to this Agreement with respect to those provisions dealing with use and protection of intellectual property.