FIRST CITIZENS NATIONAL BANK

MOBILE BANKING AGREEMENT

 

This Mobile Banking Agreement (“Agreement”) sets forth the terms and conditions for your use of (a) the Mobile Banking Service, (b) the End-User License Agreement for the Mobile Banking App, (c) the Mobile Deposit Service, and (d) the terms and conditions for use of the Zelle Network (each referred to herein as a “Service” and collectively as the “Services”) provided by First Citizens National Bank (the “Bank,” “we,” “us”) and any Third Party mobile technology solution service provider (the “Licensor”) providing the Services.

 

By clicking the "I Agree" button at the end of this Agreement and/or otherwise using the Services, you agree to all the terms, conditions, and notices contained or referenced in this Agreement and the terms and conditions of the Consumer Online Banking Agreement, which is incorporated by reference herein and is made a part of this Agreement. Other agreements you have entered into with Bank in connection with your accounts and other services at First Citizens National Bank, including, as applicable, the Deposit Account Agreement, Funds Availability Policy, ESIGN Disclosure and Agreement, Privacy Policy, Truth in Savings Disclosure, Schedule of Fees and Account Signature Card (collectively, the “Account Documentation”) are also incorporated by reference and made a part of this Agreement.   Access to and use of the Service is subject to all applicable federal, state, and local laws and regulations.

 

This Agreement is broken down by the following sections, which outline the terms and conditions for the Services: Section A – Mobile Banking Service; Section B – End User License Agreement for the Mobile Banking App; Section C – the Mobile Deposit Service; and Section D – the Zelle Service.

 

SECTION A – Mobile Banking Service

 

1.                   DESCRIPTION OF THE MOBILE BANKING SERVICE. Unless your cellular phone is limited to texting, Mobile Banking Service refers generally to any service allowing an existing Bank customer to access and view accounts selected by the customer (“Accounts”) from a web-enabled mobile phone or device (“Mobile Device”) whose network allows secure SSL traffic. The services available to the text-enabled cellular phone are limited as further described in this Agreement. We do not guarantee the functionality of the Service on all wireless devices; however, generally, the Service should be compatible with any web-enabled mobile phone or other Mobile Device, regardless of make, model, or mobile service provider. This proprietary solution adapts to any screen size and can change dynamically to present items on any screen in a pleasing format. The Mobile Banking Service allows you to view transaction history, view Account balances, transfer funds between Accounts, pay bills to payees and view alerts. This Agreement supplements your Deposit Account Agreement and Consumer Online Banking Agreement. In the event of an inconsistency between the terms of the Deposit

Account Agreement or the Consumer Online Banking Agreement and this Agreement, this Agreement shall govern. Undefined terms herein shall have the meaning assigned to them in the Deposit Account Agreement or the Consumer Online Banking Agreement, as applicable. In most cases you may use the Service to gain access to deposit accounts in which you have an unrestricted right to withdraw funds. However, the Bank, as it may determine at any time and from time to time in its sole discretion, may deny Service account access, restrict Service account transactions, or place limits on the specific dollar amount of funds that may be withdrawn or transferred from any account. You acknowledge and agree that these services are provided by Licensor, an independent third party service provider as selected by Bank, and that both the Licensor and the Service are subject to change from time to time without notice to you. You further acknowledge, agree, and stipulate that the Licensor is an independent contractor providing software and data transmission services and is not your agent or an agent Bank. Neither the Bank nor the Licensor is responsible for the actions or omissions of the other.

 

2.                   SERVICE INCLUDED.  The Service requires a web-enabled Mobile Device or a cellular phone that is text-enabled. The text-enabled cellular phone service (“SMS Texting”) is limited to making a balance inquiry and the capability to view transactions on the account. Text messages are sent to you without being encrypted. With the exception of the text-enabled cellular phone, the Service is similar to Internet banking on a personal computer. You can view your available account balance and review account history on any checking or savings account selected by you.  The Service allows you to transfer money between your accounts. You must select the accounts to and from which funds will be transferred, and you will receive a confirmation when the transaction is completed. Frequency and amount limitations of transfers are set forth below.  If you have signed up for our Online Banking Bill Pay Service, the Service allows you to pay bills to payees. A confirmation message and number will be displayed after the bill payment is complete.  If you have Alerts on your account, you may receive the Alerts with the Service.  From time to time, we may develop additional mobile banking services. As such services are developed you will have the opportunity to add them to your Mobile Banking Service, provided you have compatible wireless hardware and software.

 

3.                   ELIGIBILITY/HOW TO REGISTER FOR MOBILE BANKING SERVICE. To use the Service, you must have an open account at the Bank, register for Online Banking, and have a compatible Mobile Device. During the registration process, you will enter your mobile phone number as well as other information we require to authenticate your identity. After you have accepted these Terms and Conditions and clicked Continue, you will receive a SMS Text Message to your Mobile Device acknowledging that you have registered for this Service. After you receive the SMS Text Message, you will be provided with further instructions on how to access the Service using the browser on your Mobile Device as well as how to receive account balance information using SMS Texting. During this registration process, you will be required to provide your Online Banking identification credentials (“Access Code”) that you must use each time you access the Service.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

8.                   PROCESSING INTERNAL FUND TRANSFERS. We can process a Transfer until 8:00 p.m. CT on a Transfer Day. If you initiate a Transfer after the cutoff time, the Transfer will be processed the following Business Day. You are fully obligated to us to provide sufficient funds for any payments or transfers you make or authorize to be made. If we complete a payment or transfer that you make or authorize and we subsequently learn that you have insufficient funds for the transaction, you agree that we may reverse the transaction or offset the shortage with funds from any other deposit account(s) you have with us to the extent permissible by the applicable law and the terms of any other relevant agreements. If there are insufficient funds in your Account to make a Transfer or Payment, we may refuse to make the Transfer or Payment or we may make the Transfer or Payment and overdraw your Account. In either event, you are responsible for any non-sufficient funds (“NSF”) charges that may apply.

 

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

 

10.               BILL PAYMENT SERVICE and TRANSFERS. If you have signed up for our Online Bill Payment Service, you can use this Service to initiate one-time immediate bill payments, which will be processed during the next bill pay processing time. You cannot use this Mobile Banking Service to set up new payees. You must use the Online Bill Payment Service to set up new payees. The Bank reserves the right to decline to make Payments to certain persons and entities. You agree that any Payment for taxes, Payments that are court-ordered, Payments to settle securities purchases, Payments to interest bearing accounts, government payments and Payments outside of the United States and other Payments listed in the Consumer Online Banking Agreement are prohibited and you agree that you will not attempt to use the Service to make these types of Payments. Please refer to your Online Banking Service Agreement for the procedures that must be followed to perform these functions Payments are posted against your current balance, plus the available credit on your overdraft protection, if any, or other line of credit. When you initiate a Bill Payment, the Bill Payment may be made by check or electronically and the Payment will be processed in accordance with the terms of the Consumer Online Banking Agreement.  Recurring Payments and Transfers cannot be made through this Service. One-time Payments do not reoccur, and are not made until you enter the Payee and amount of the current bill and submit the Payment. A stop payment cannot be placed on an Electronic Bill Payment transaction once issued and the Payment cannot be cancelled. However, a stop payment can be placed on a Bill Payment transaction by Bill Payment check any time prior to the check being presented for final payment subject to the completion of a Stop Payment Request. In the event a Payment is returned to us for any reason, you authorize us, in our sole and absolute discretion, to either research and/or correct the Payment information or to void the Payment and re-credit your Account.

 

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

 

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

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

(b) FREQUENCY. There may be limits on the number of transactions you can make using the Service. These limits are also for security reasons and are subject to change.

(c) FOREIGN TRANSACTIONS. No Payments may be made to Payees outside the United States.

Additional limitations may be contained in this Agreement. Your ability to initiate transactions may also be limited by the terms of other agreements you have with the Bank or by applicable law.

 

13.               SMS TEXTING SERVICE. The Mobile Banking Services enables you to access your account(s) through an SMS text enabled Mobile Device. By activating/registering your Mobile Devices for this service, you agree to receive and send electronic text messages about your Accounts. Bank will send text messages to you based upon the instructions you provide at the time of the SMS request that you send. You hereby acknowledge and accept that each message is sent to you without being encrypted and will include certain information requested on your Account(s). You may request and receive text messages concerning your accounts on any text enabled Mobile Device. It is your responsibility to determine if your wireless carrier provider supports text messages and your Mobile Device is capable of receiving text messages. Bank’s SMS messages are subject to the terms and conditions of your agreement(s) with your wireless carrier provider even if your use of the SMS service results in additional or changed fees.

When utilizing the SMS Texting Service and need help, text the word HELP to 73955 to receive additional details related to the service.  You may cancel the SMS Texting Service from your mobile device by texting the word “STOP” to 73955.  In the event you have additional questions, contact the Service Center by emailing info@firstcnb.com or by calling (731)285-4410; toll free at (800)321-3176.

 

Once you activate your Mobile Device for this Service, YOU are responsible for keeping any personal information in your Mobile Device secure. For your protection, you agree to:

·         Log in to Online Banking and cancel SMS Texting if you or your wireless carrier provider is cancelled.

·         Log in to Online Banking and cancel SMS Texting if your Mobile Device is lost or stolen.

·         Contact the Bank if Mobile Device is lost or stolen.

·         Log in to Online Banking and cancel or edit SMS Texting if there are changes to your wireless carrier provider or Mobile Device number (cell phone number).

·         Erase your “Sent Message” and “Inbox” that may contain your SMS PIN number or other personal information. You acknowledge, agree and understand that your receipt of any SMS messages may be delayed or prevented by factor(s) affecting your wireless carrier provider and/or other factors outside our control. We neither guarantee the delivery nor the accuracy of the contents of any message(s). You agree to the terms of the indemnification clause as specified on the Consumer Online Banking Agreement.

You also agree not to hold the Bank liable for any losses, damages or costs that may arise in whole or in part, from:

·         Non-delivery, delayed delivery, or the misdirected delivery of any message.

·         Inaccurate or incomplete content in any message.

·         Your reliance on or use of the information provided in any SMS service message for any purpose.

Bank provides this service as a convenience to you. We do not use text messages for any purpose not included in this system and will not respond to text messages sent to us that do not comply with appropriate action codes. A SMS message does not constitute an official record for the Account to which it pertains. Bank reserves the right to terminate this service or begin charging a fee for this service at any time without prior notice to you, except where required by law. All provisions of any agreements or disclosures previously made pertaining to your Account(s) remain in effect and are not superseded or amended by this Agreement.

 

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

 

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

 

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

 

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

 

18.               YOUR RESPONSIBILITIES.

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

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

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

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

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

 

19.               THE BANK’S RESPONSIBILITIES. Bank agrees to use ordinary care in rendering Services under this Agreement. You recognize and agree that ordinary care does not mean error free. You agree to pay all attorneys’ fees, costs and expenses Bank may incur in collecting any sums you owe to Bank for overdrafts, service charges or otherwise or in enforcing any rights Bank may have under the terms of this Agreement or applicable law, rule or regulation applicable to your account(s) or the Services rendered by Bank under this Agreement. You also agree to pay all attorneys’ fees, costs and expenses that Bank may incur as the result of defending any claim or action made against Bank by you, or on your behalf where Bank is found not to be liable for such claim. In no event shall Bank be liable to you for attorneys’ fees incurred by you in any action brought by you against Bank. Our sole responsibility for an error in a transfer will be to correct the error. Without limiting the generality of the forgoing, we will not be responsible for the following matters, or for errors or failures of our Services as result of:

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

(b) YOUR MOBILE DEVICE & YOUR SOFTWARE. We will not be responsible for any errors or

failures from any malfunction of your Mobile Device or any malicious software or other problems related to the Mobile Device used with our Services.

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

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

 

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

First Citizens National Bank

Attn: Service Center

P.O. Box 370

Dyersburg, TN 38025-0370

Phone: (731) 285-4410 (800) 321-3176

info@firstcnb.com       

Monday through Friday 8:00 a.m. CT until 8:00 p.m. CT (excluding holidays)

Saturday 8:00 a.m. CT until 1:00 p.m. CT (excluding holidays)

 

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

 

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

 

23.               LIMITED LIABILITY. YOU UNDERSTAND THAT THERE ARE RISKS ASSOCIATED WITH USING A MOBILE DEVICE AND THE SERVICES OUTLINED IN THIS AGREEMENT.  IN THE EVENT OF THEFT OR LOSS OF YOUR MOBILE DEVICE OR EMAIL ADDRESS, YOUR CONFIDENTIAL INFORMATION COULD BE COMPROMISED. IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, OWNERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, THIRD PARTY SERVICE PROVIDERS, OR NETWORK BANKS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, FILES, PROFIT, OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE OF GOODS OR THE SERVICES), INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICES EVEN IF YOU, BANK, OR BANK’S SERVICES PROVIDER HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) ANY TRANSACTION CONDUCTED THROUGH OR FASCILITATED BY THE SERVICES; (III) ANY CLAIM ATTRIBUTABLE TO ERROS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES; OR (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA. IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE(S).  TO THE EXTENT THE AFOREMENTIONED LIMITATION OF LIABILITY MAY NOT APPLY, THE AGGREGATE LIABILITY OF BANK AND OUR THIRD PARTY SERVICE PROVIDERS UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED DOLLARS.

 

24.                DISCLAIMER OF WARRANTIES.  YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY BANK ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BANK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, IN LAW OR IN FACT, WHATSOEVER TO YOU OR TO ANY OTHER PERSON AS TO THE SERVICES OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. YOU AGREE THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO. BANK MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU AS

 

TO ANY MOBILE DEVICE, HARDWARE, SOFTWARE, EMAIL SERVICE, OR EQUIPMENT USED IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, YOUR MOBILE DEVICE OR RELATED EQUIPMENT, YOUR SOFTWARE, OR YOUR MOBILE SERVICE PROVIDER OR ITS EQUIPMENT), OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT YOU USE, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN OR MALFUNCTIONS OF YOUR MOBILE DEVICE HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO YOU IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM YOU TO BANK OR FROM BANK TO YOU. BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING YOU OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF YOUR MOBILE DEVICE HARDWARE OR SOFTWARE.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

32.               LIABILITY FOR TRANSACTIONS COVERED BY REGULATION E (CONSUMER ACCOUNTS). To the extent a transaction is an “electronic fund transfer” under Federal Reserve Board Regulation E, tell us AT ONCE if you believe your Password has been lost or stolen, or if you believe that a Mobile Banking transaction has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. Call us at (731 ) 285-4410 or toll-free at (800) 321-3176 during our normal business hours (Monday through Friday, excluding holidays, from 8:00 a.m. CT until 8:00 p.m. CT or Saturday 8:00 a.m. CT until 1:00 p.m. CT or write us at First Citizens National Bank ATTN: Service Center, P.O. Box 370, Dyersburg, TN 38025-0370. You could lose all the money in your account (plus your maximum overdraft line of credit). If you tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, you can lose no more than $50.00 if someone used your Access Code or made a transaction without your authorization. If you do NOT tell us within two (2) Business Days after you learn of the loss, theft, or unauthorized transaction, and we can prove we could have stopped someone from using your Access Code or the Service without your authorization if you had told us, you could lose as much as $500.00. You could also lose up to an additional $50.00 if the Funding Account has an overdraft protection line of credit feature. Also, if your statement shows a transaction that you did not make or authorize, tell us at once. If you do not tell us within sixty (60) days after the statement was mailed, electronically transmitted, or otherwise made available to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or hospital stay) kept you from telling us, we will extend the time periods as may be reasonable under the circumstances.

 

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

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

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

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

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

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

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

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

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

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

·         Your Access Code has been reported lost or stolen;

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

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

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

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

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

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

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

 

34.               ERROR RESOLUTION (CONSUMER ACCOUNTS). In case of errors or questions about your electronic transfers, telephone us, write us at or E-mail us at the number or location provided in Paragraph 21 as soon as you can if you think that your statement is wrong or you need more information about a transaction listed on your statement or appearing on the account activity screen of your PC and/or Mobile Device, we must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared or you received notification of the problem or error on your PC and/or Mobile Device. You must:

·         Tell us your name and the Account number.

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

·         Tell us the dollar amount of the suspected error.

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

 

If you tell us orally, we may require that you send us your complaint or question in writing within ten (10) Business Days. We will determine whether an error occurred within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) after we hear from you and will correct any error promptly. If we require more time, however, we may take up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) to investigate your complaint or question. If this additional time is necessary, and your written notification has been received by us, we will credit your account within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account) for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) Business Days (twenty (20) Business Days for transactions that have occurred within 30 days after the first deposit to the account), we will not credit your account and we will still have up to forty-five (45) days (ninety (90) days for point-of-sale transactions, transactions initiated outside the United States, or transactions that have occurred within 30 days after the first deposit to the account) for our investigation. We will tell you the results within three (3) Business Days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.

 

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

 

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

 

37.               MISCELLANEOUS PROVISIONS.

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

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

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

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

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

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

 


 

SECTION B - END USER LICENSE AGREEMENT TERMS FOR THE DOWNLOADABLE APP

 

1. Ownership. You acknowledge and agree that a third party provider or licensor to your financial services provider ("Licensor") is the owner of all right, title and interest in and to the downloaded software to be used for access to mobile banking services from your financial services provider and the computer programs contained therein in machine readable object code form as well as any accompanying user documentation along with all subsequent copies, updates or versions thereof which are made available to you (if any), regardless of the media or form in which they may exist (collectively the "Software").

 

2. License. Subject to the terms and conditions of this License Agreement, you are hereby granted a limited, nonexclusive license to use the Software in accordance with the terms of this License Agreement. All rights not expressly granted to you by this License Agreement are hereby reserved by the owner of the Software. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This License Agreement may be terminated at any time, for any reason or no reason. Upon termination, you agree to immediately destroy all copies of the Software in your possession or control.

 

3. Restrictions. You shall not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright.

 

4. Disclaimer Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE SOFTWARE AND ANY OTHER MATERIAL OR SERVICES DOWNLOADED OR MADE AVAILABLE TO YOU THROUGH THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE.

 

5. Limitations of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, THE PROVIDER OF ANY FINANCIAL SERVICES AVAILABLE THROUGH OR RELATED TO THE SOFTWARE, ANY OF THEIR CONTRACTORS OR PROVIDERS OR ANY OF EACH OF THEIR AFFILIATES BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, LIABILITY OF LICENSOR OR ANY OF THE OTHER PERSONS OR ENTITIES DESCRIBED IN THE PRECEDING SENTENCE ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF $10.00 OR THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE.

 

6. U.S. Government Restricted Rights. The Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this Agreement.

7. Miscellaneous. This License Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. This License Agreement will be governed by and construed in accordance with the laws of the state of California excluding that body of laws pertaining to conflict of laws. If any provision of this License Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this License Agreement are subject to the exclusive jurisdiction of the courts of California and the parties expressly consent to jurisdiction and venue thereof and therein. The parties confirm that this License Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.

8. Content and Services. Neither Licensor nor the provider of the wireless network is the provider of any financial services available through or related to the Software, and neither Licensor nor the provider of the wireless network or any contractor of the provider of the financial services available through or related to the Software, is responsible for any of the materials, information, products or services made available to you via the Software.

 


 

SECTION C - Mobile Deposit Terms and Conditions

 

In addition to Section A and B, this Section C contains the terms and conditions for use of the Mobile Deposit Service provided to you. 

1.                   Services.  The Service is designed to allow you to make mobile deposits (each such deposit a “Mobile Deposit” and collectively “Mobile Deposits”) to your checking, savings or money market accounts from home or other remote locations by using a mobile device with the Bank’s downloadable mobile application “Software” to capture images of paper checks and transmitting the images and associated deposit information to Bank or Bank’s designated processor (“Processor”).  You acknowledge and agree that Mobile Deposits made by you using this Service are not an “Electronic Fund Transfer” as that term is defined in Consumer Financial Protection Bureau Regulation E.  The terms "Bank" and "Processor" may be used interchangeably when used in relation to any services performed by a Processor on behalf of Bank including, but not limited to, the receipt and processing of images and check data and any notices related thereto.  The mobile device must capture an image of the front and back of each Check (as herein defined) to be deposited (each an “Image” and, if more than one, “Images”) in accordance with the procedures outlined in the Agreement and provided to you in the Service documentation, (“Procedures”).  After capture of the front and back Images and all other required data and information from the paper check, you will transmit, via the Internet, the Mobile Deposit containing the Images and all other required data and information from or pertaining to the check to Bank or Processor using the Software.  Subject to compliance with the terms, provisions and conditions of this Agreement, Bank will provisionally credit the account or accounts designated by you for the amount of the deposit(s) on the day of receipt of the Mobile Deposit and enter the Images of the checks into the collection process, in accordance with the provisions of Bank’s Deposit Account Agreement pertaining to the account(s) into which the Mobile Deposit is to be made and this Agreement.

 

2.                   Acceptance of these Terms.  We will notify you of any material change via e-mail, text message, or on our website by providing a link to the revised Agreement or by an online secure message.  If required by this Agreement or by applicable law, notice will be given for the applicable required number of days in advance of each such material change.  You will be prompted to accept or reject any material change to this Agreement the next time you use the Service after the Bank has made the change.  Your acceptance of the revised Agreement along with the continued use of the Service will indicate your consent to be bound by the revised Agreement.  Further, the Bank reserves the right, in its sole discretion, to change, modify, add, or remove portions from the Service.  Your continued use of the Service will indicate your acceptance of any such changes to the Service.  No changes requested by you shall be effective unless received and agreed to in writing by Bank.

 

3.                   Hardware and Software.  In order to use this Service, you must obtain and maintain, at your sole cost and expense, a compatible mobile device and/or other hardware and software that meets all technical requirements, as specified by the Bank from time to time, for the proper delivery of the Service and that fulfills your obligation to obtain and maintain secure access to the Internet.  See www.FirstCNB.com for current hardware and software specifications.  The Bank is not responsible for any third party software you may need to use this Service.  Any such software is accepted by you "as is" and is subject to the terms and conditions of the software agreement you entered into directly with the third party software provider at time of download and installation.  You understand and agree you may also incur, and shall pay, any and all expenses related to the use of the Service, including, but not limited to, telephone, mobile data, or Internet service charges.  You are solely responsible for the payment of any and all costs and expenses associated with meeting and maintaining all technical requirements and additional items necessary for the proper use of the Service.  You understand and agree that you are solely responsible for the operation, maintenance and updating of all equipment, software and services used in connection with the Service and the cost thereof, and you hereby agree that you will perform, or cause to be performed, all vendor recommended maintenance, repairs, upgrades and replacements. Bank is not responsible for, and you hereby release Bank from, any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet.  Bank is not responsible for, and you hereby release Bank from, any and all claims or damages resulting from, or related to, defects in or malfunctions of your hardware or software, or failures of or interruptions in any electrical, telephone, mobile data, or Internet services.  Bank hereby advises you, and you hereby agree to scan your computer hardware and software on a regular basis using a reliable computer virus detection product in order to detect and remove computer viruses.

 

4.                   Fees.  A fee may be charged for this Service.  You are responsible for paying the fees for the use of this Service.  Any fee that is charged will be disclosed prior to your Mobile Deposit.  The Bank may change the fees for use of this Service at any time pursuant to the section above titled “Acceptance of these Terms.”  You authorize the Bank to deduct any such fees from any Bank account in your name, even if such deduction causes an overdraft in the account.  Should you fail or refuse to pay any charges under this Agreement, you agree to pay all collection costs (including reasonable attorney's fees) that may be incurred by Bank.  In addition to the Service fees, you agree to pay all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Service, this Agreement, and/or the software or equipment made available to you (excluding any income tax payable by Bank).  You are also responsible for the costs of any communication lines and any data processing charges payable to third parties.

 

5.                   Eligible Items and Security Interest.  You agree to scan and deposit only checks as the term check is defined in Federal Reserve Regulation CC (“Reg. CC”).  You agree that the Image of the check (“Image”) that is transmitted to Bank (each such check and other item a “Check” and, if more than one, “Checks”) shall be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code (1990 Official Text). 

You agree you will not use this Service to scan and deposit any of the following checks or other items (each a “Prohibited Check” and, collectively, “Prohibited Checks”), which shall be considered ineligible:

·         Checks or items payable to any person or entity other than the person or entity that owns the account in which the check is being deposited.

·         Checks or items containing an alteration to any of the fields on the front of the check or item, or which you know or suspect, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the check is drawn.

·         Checks or items payable jointly not in the alternative, unless deposited into an account in the name of all payees.

·         Checks or items previously converted to a substitute check, as defined in Reg. CC or are “image replacement documents” that purport to be substitute checks.

·         Checks or items drawn on a financial institution located outside the United States.

·         Checks or items that are remotely created checks, as defined in Reg. CC.

·         Checks or items not payable in United States currency.

·         Checks or items dated more than six (6) months prior to the date of deposit.

·         Checks or items prohibited by the Bank’s current procedures related to this Service or which are otherwise not acceptable under the Deposit Account Agreement governing your Bank account.

·         Checks or items payable on sight or payable through Drafts, as defined in Reg. CC.

·         Checks or items with any endorsement on the back other than that specified in this Agreement.

·         Checks or items that have previously been submitted through this Service or through a remote deposit capture service offered at any other financial institution.

·         Checks or items that are drawn or otherwise issued by the U. S. Treasury Department.

·         Money Orders or Postal Money Orders.

If you deposit a Prohibited Check, you agree to indemnify and reimburse Bank for, and hold Bank harmless from and against, any and all losses, costs and expenses (including reasonable attorney fees) Bank may incur associated with any warranty, indemnity or other claim related thereto. 

You grant Bank a security interest in all of your accounts or other deposits (whether general or special) at the Bank, and in all funds in such accounts or other deposits, to secure your obligations to Bank under this Agreement.  This security interest will survive termination of this Agreement.

 

6.                   Endorsements and Procedures.  You agree to restrictively endorse any Check transmitted through the Service with your name and the legend “For FCNB Mobile Deposit Only” or as otherwise instructed by the Bank.  You shall scan the front and back of each Check to be deposited and thereby capture the image of the front and back of each Check and any other required data from each Check and transmit the Images to be deposited and all other required data and information from or pertaining to such Checks to Bank or its Processor in accordance with the Procedures.  Bank reserves the right to amend the Procedures, with or without prior notice to you. You agree to comply at all times with the Bank’s Secure Login procedures established for online account access and Bank’s mobile “Security Procedures” and to safeguard the confidentiality and security of the Security Procedures and all other proprietary property or information Bank provides to you in connection with the Service and to notify Bank immediately if you have any reason to believe the security or confidentiality required by this provision has been or may be breached.  You acknowledge, understand and agree the Security Procedures are not designed for the detection of errors.  Bank is not, and will not be, obligated to detect errors by you or others, even if Bank takes certain actions from time to time to do so.  To ensure accuracy, you shall key the amount of each Check prior to transmitting the Mobile Deposit in accordance with the Procedures.  You may send multiple Mobile Deposits to Bank or Processor throughout the day, not to exceed the deposit limits discussed in Section 13 of this Agreement.   

 

7.                   Image Quality.  The Images of Checks transmitted to the bank using this Service must be legible, as determined in the sole discretion of the Bank.  Without limiting the foregoing, each Image of each Check must be of such quality that the following information can be clearly read and understood by sight review of such Image:

·         The amount of the Check;

·         The payee of the Check;

·         The signature of the drawer of the Check;

·         The date of the Check;

·         The Check number;

·         The information identifying the drawer and the paying bank that is preprinted on the Check, including the MICR line; and

·         All other information placed on the Check prior to the time an Image of the Check is captured, such as any required identification written on the front of the Check and any endorsements applied to the back of the Check.

Each Image shall also comply with any other requirements established from time to time by the Bank, and shall meet all standards for image quality established by the American National Standards Institute (ANSI), the Board of Governors of the Federal Reserve, or any other regulatory agency, clearinghouse or association. 

You shall ensure the scanned Image of the Check transmitted to Bank includes the full-field MICR encoding on each Check.

 

8.                   Receipt of Mobile Deposit and Notification.  You agree that you shall be solely liable for, and Bank shall not have any liability whatsoever to you for, any Mobile Deposit or the Images or other information contained therein that are not received by Bank or for Mobile Deposits or the Images or other information contained therein that are intercepted or altered by an unauthorized third party or dropped during transmission.  You agree that Bank has no obligation to accept a Mobile Deposit and, therefore, we reserve the right to reject any Mobile Deposit or the Images or other information contained therein transmitted through this Service, at our discretion, without liability to you.  Bank has no obligation to notify you of the rejection of a Mobile Deposit or the Images or other information contained therein and shall have no liability to you for failing to do so.  You agree to accept an electronic notification regarding the status of your transmitted Mobile Deposits or the Images or other information contained therein, including any notification of holds placed on the Mobile Deposit or any Image contained therein.  A Mobile Deposit is considered received by Bank when a complete copy of the Mobile Deposit has been written on a Bank electronic storage device in conformity with Bank’s technical and operational requirements.  To meet the Cut-Off Time (as defined below), the Mobile Deposit must be received by Bank prior to the Cut-Off Time and successfully pass the edits for conformity with the technical requirements.  For purposes of determining when a Mobile Deposit has been delivered and received, Bank’s records shall be determinative.  Upon receipt of a Mobile Deposit, Bank will send an email confirmation that we have received the Mobile Deposit.  Your receipt of such confirmation does not mean the transmission was error free, complete or will be considered a Mobile Deposit and credited to your account. 

Upon receipt of a Mobile Deposit submitted by you, Bank may examine such Mobile Deposit and the Images and other information contained therein to ensure that you have complied with this Agreement and followed the Procedures.  If Bank determines that you have not complied with this Agreement or followed the Procedures or if errors exist in the Images or other information contained in the Mobile Deposit, Bank, in its sole discretion, may either reject the Mobile Deposit or elect to correct the error and accept and process the corrected Mobile Deposit (a “Corrected Mobile Deposit”).  As a form of correction, Bank may credit your account for the full amount of the deposit and make any necessary adjustments to the account to correct the error.  Bank may, at its option, also perform a risk management analysis of one or more Mobile Deposits submitted by you to detect potentially fraudulent Checks, and, in its sole discretion, Bank may reject any such Mobile Deposit or the Images or other information contained therein.  If after examination of a Mobile Deposit and the Images and other information contained therein, Bank determines that you have complied with this Agreement and processed and transmitted the Mobile Deposit in accordance herewith and with the Procedures, the Bank shall accept the Mobile Deposit for deposit to your account. Notwithstanding the fact that Bank has accepted a Mobile Deposit for processing, any credit made to your account shall be provisional, and you shall remain liable to Bank for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Bank.  Upon confirmation of the Mobile Deposit, Bank will send an email confirmation that we have approved and processed the Mobile Deposit or an email confirmation that the Bank is rejecting the Mobile Deposit or has made corrections to the Mobile Deposit.

 

9.                   Availability of Funds.  You agree that Mobile Deposits transmitted using this Service are not subject to the funds availability requirements of Federal Reserve Board Reg. CC.  To be eligible for processing on the day transmitted, Mobile Deposits must be received and accepted by Bank on or before 5:00 p.m. CT/6:00 p.m. ET (the “Cut-Off Time”) on a business day that the Bank is open.  A Mobile Deposit that is received after the Cut-Off Time shall be deemed to have been received on the business day following the business day on which the Mobile Deposit is actually received by Bank.    Bank reserves the right to change the Cut-Off Time.  Any such change shall be effective immediately and may be implemented prior to your receipt of notice thereof.  You may contact Bank at any time to verify the Cut-Off Time.  Upon acceptance of the Mobile Deposit, Bank shall grant Provisional Credit (as herein defined) to your account for the total amount of the Corrected Mobile Deposit or the accepted Mobile Deposit, as applicable. “Provisional Credit” means that the credit is made to your account subject to final payment of the Checks and subject to the Bank’s Deposit Account Agreement.  For the purpose of determining availability of funds, the Bank may hold funds for the period of time permitted by the Bank’s Funds Availability Disclosure.

 

10.               Laws, Rules, and Regulations.  You agree to comply with all existing and future operating procedures used by Bank for processing of transactions.  You further agree to comply with, and be bound by, all applicable state or federal laws, rules, regulations, orders, guidelines, operating circulars and pronouncements, affecting checks and drafts, including, but not limited to, all rules and procedural guidelines established by the Board of Governors of the Federal Reserve and the Electronic Check Clearing House Organization (“ECCHO”) and any other clearinghouse or other organization in which Bank is a member or to which rules Bank has agreed to be bound.  These procedures, rules, and regulations (collectively the “Rules”) and laws are incorporated herein by reference.  In the event of conflict between the terms of this Agreement and the Rules, the Rules will control.

 

11.               Presentment.  The manner in which the Images are cleared, presented for payment, and collected shall be in the Bank’s sole discretion subject to the Rules and Bank’s Personal Deposit Account Agreement.  Bank, in its sole discretion, shall select the clearing agents used to collect and present the Images, and Bank’s selection of the clearing agents shall be considered to have been designated by you.

 

12.               Maintenance and Disposal of Transmitted Checks.  You shall stamp the original check “Processed” after the process of scanning the Check in accordance with Section 6 of this Agreement. Upon your receipt of a confirmation from the Bank that we received your transmitted Image, you agree to securely store the original Check for a period of fourteen (14) calendar days from the date of the Image transmission (such period the “Retention Period”).  During the Retention Period, you shall take appropriate security measures to ensure that: (a) only authorized persons shall have access to original Checks, (b) the information contained on such Checks shall not be disclosed, (c) such Checks will not be duplicated or scanned more than one time and (d) such Checks will not be deposited or negotiated in any form.  Upon expiration of the Retention Period, you shall destroy the original Check you transmitted as an Image using commercially reasonable methods of destruction that will result in the paper based Item being unprocessable and all sensitive personal and financial information undecipherable.  You hereby indemnify Bank for, and hold Bank harmless from and against, any and all claims, demands, actions, causes of action, losses and damages, of whatever nature or kind, and regardless of the theory upon which the same is (are) based, caused directly or indirectly by, arising out of, related to, in connection with or resulting wholly or partially from, the destruction of original Checks by you.  During the Retention Period, you agree to promptly (but in all events within 5 business days) provide the original Check to the Bank upon request.

 

13.               Deposit Limits.  We may establish limits on the dollar amount and/or number of Check Images or Mobile Deposits from time to time.  If you attempt to initiate a Mobile Deposit in excess of these limits, we may reject your Mobile Deposit.  If we permit you to make a Mobile Deposit in excess of these limits, such Mobile Deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a Mobile Deposit at other times.  The current daily dollar limit is $1,500 per business day with daily Images transmitted not to exceed five (5) Images per business day.  Bank reserves the right to change the limits.  Any such change shall be effective immediately and may be implemented prior to your receipt of notice thereof.  You may contact Bank at any time to verify the current limits.

 

14.               Return of Checks and Chargebacks.  If any Check deposited by you is dishonored or otherwise returned unpaid by the drawee bank, or returned by a clearing agent for any reason including, but not limited to, issues relating to the quality of the Image, you understand and agree that since you either maintain the original Check or have destroyed the original Check in accordance with Section 12 of this Agreement, the original Check will not be returned and that Bank may chargeback an image of the Check to your account.  You further understand and agree the image may be in the form of an electronic or paper reproduction of the original Check or a substitute check.  Unless otherwise instructed by the Bank, you agree not to deposit the original Check if an Image or other debit as previously described is charged back to your account.  We further reserve the right to chargeback to your account at any time; any Check we subsequently determined was a Prohibited Check.  You agree the Bank is not liable for any loss, costs, or fees you may incur as a result of our chargeback of a Prohibited Check.  

 

15.               Errors of Checks Deposited.  You agree to notify the Bank of any suspected errors regarding Checks deposited through this Service right away, and in no event later than thirty (30) days after the applicable Bank account statement is sent.  Unless you notify the Bank within thirty (30) days, such statement regarding all Mobile Deposits made through the Service shall be deemed correct, and you are prohibited from bringing a claim against the Bank for such alleged error.

 

16.               Update Notice.  You shall provide written notice to Bank of any changes to the information previously provided by you to Bank.  Such notice must be received by Bank within five (5) business days of the change.  You shall provide any additional information requested by Bank within five (5) days of such request.  Bank retains the right to:  (i) review your Checks, Mobile Deposits and activities from time to time and (ii) re-price or terminate the Service based on changes to information you previously provided to Bank.

 

17.               Bank’s Duties and Responsibilities.  Bank's duties and responsibilities are limited to those described in this Agreement, the Deposit Account Agreement, and any other agreements governing the accounts.  Bank will use commercially reasonable care in performing its responsibilities under this Agreement.  You agree to monitor your account balances and charges, to promptly notify Bank if any periodic statement conflicts with your records, and to refrain from acting on information you have reason to believe is erroneous.  In all instances, the Bank's and, if the services of a third party provider are utilized in the provision of the Service, such third party's sole liability to you shall be limited to the correction of any errors made.  Bank shall not be responsible for suspension of performance of all or any of its obligations, responsibilities or covenants hereunder, whether expressed or implied, if at any time, or from time to time, compliance therewith is prevented or hindered by, or are in conflict with, any federal or state law, regulation or rule, the order of any court of competent jurisdiction, any act of God or of the public enemy, war, epidemic, strike, or work stoppages of the U.S. Postal Service and commercial carrier(s), or electric power disruption or shortage, telecommunications failure or computer failures; acts, omissions or errors of any carrier and/or agent operating between you and Bank or Bank and any Federal Reserve Bank or other agency utilized to exercise transfers or any recipients of transferred funds; any incorrect, unauthorized or fraudulent use or other fraud by any person other than Bank’s employees; or, without limiting the generality of the foregoing, any other cause or circumstance beyond Bank’s control or other conditions or circumstances not wholly controlled by Bank, which would prohibit, retard or otherwise affect Bank’s complete or partial performance under this Agreement.

 

18.               Contingency Plan.  You agree that, in the event you are not able to capture,  process, produce or transmit a Mobile Deposit to Bank, or otherwise comply with the terms hereof or of the Procedures, for any reason, including, but not limited to, communications, equipment or software outages, interruptions or failures, you will deposit the original Checks in a manner consistent  with  other methods for making deposits  provided by Bank (such as in transport the originals of all Checks to the closest office of Bank or ATM and deposit original Checks with Bank or in the ATM, or mail the Checks to the Bank) until such time that the outage, interruption or failure is identified and resolved.  You hereby acknowledge and agree that Bank shall not be liable to you for any loss or damage of any nature sustained by you as the result of your inability to use the Service.  The deposit of original Checks at an office of Bank or in an ATM shall be governed by the terms and conditions of the Person Deposit Account Agreement and not by the terms of this Agreement. 

 

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

 

20.               Confidential Information.  All information of a personal or business nature relating to the assets, liabilities or other business affairs disclosed to Bank by you in connection with this Agreement is confidential.  Except as allowed by applicable law, Bank shall not disclose or permit access to any such information by any person, firm or corporation.  Bank shall cause its officers, employees and agents to take such action as shall be reasonably necessary to preserve and protect the confidentiality of such information, by disclosing such information only to persons needing to have access thereto for the performance of the Bank’s obligations under this Agreement or to any other party to which Bank may be required by law to report such information.  You agree to hold confidential, and to use only in connection with the Service, all information furnished to you by Bank or by third parties from whom Bank has secured the right to use the Service, including, but not limited to, Bank's product and service pricing structure, system design, programming techniques or other unique techniques.  In addition, should you at any time receive or acquire any information relating to another customer of Bank, you shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for its own benefit or otherwise.  Banks and your obligations and agreements under this paragraph shall not apply to any information supplied that was known to either party prior to the disclosure by the other, is or becomes generally available to the public other than by breach of this Agreement or otherwise becomes lawfully available on a non-¬≠confidential basis from a third party who is not under an obligation of confidence to either party.  Notwithstanding anything to the contrary contained herein, it is understood and agreed by the parties hereto that the performance of the Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and/or a State regulatory agency, and you agree to the release of by Bank your reports, information, assurances and other data and information as may be required under applicable laws and regulations.  This clause shall survive the termination of the Agreement.

 

21.               User Warranties.  You warrant to  Bank that:

·         You will only deposit Checks that are authorized by this Agreement, the Procedures and the Deposit Account Agreement governing your account.

·         You will not (i) create duplicate Images of the Checks, (ii) transmit a duplicate Image to Bank, or (iii) deposit or otherwise negotiate the original of any Check of which an Image was created.  You further warrant that no subsequent transferee, including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, will be asked to pay the original Check from which the Image(s) was created or a duplication (whether paper or electronic, including ACH entries) of the Check(s).

·         No subsequent transferees of the Image(s), including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, shall sustain a loss as the result of the fact that the Image was presented for payment or returned instead of the original Check.

·         Each Image you transmit to Bank contains an accurate representation of the front and the back of each Check and complies with the requirements of this Agreement.

·         All data and other information you provide to the Bank, including, but not limited to, data contained in the MICR line of each Check is complete, accurate and true and complies with the requirements of this Agreement.

·         You will comply with this Agreement and all applicable rules, laws and regulations.

·         You are not aware of any factor which may impair the collectability of the Check.

·         This Agreement is valid and enforceable against you in accordance with its terms, and the entry into, and performance of this Agreement by you will not violate any law, or conflict with any other agreement, to which you are subject.

·         There is no action, suit, or proceeding pending or, to your knowledge, threatened, which if decided adversely, would affect your financial condition or operations.

·         All Checks and your transactions are, and will be, bona fide.  All signatures on Checks are authentic and authorized.

·         You agree to indemnify and hold harmless Bank from and against any and all claims, losses, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising from a breach of any of your warranties, representations and/or obligations under this Agreement or any other agreement between you and Bank, including, but not limited to, Bank’s Terms and Conditions governing your account.  The terms of this paragraph shall survive the termination of this Agreement.

 

22.               Cooperation with Investigations.  You agree to cooperate with the Bank in the investigation of unusual transactions, poor quality transmission, and resolution of client claims, including by providing, upon request and without further cost, any originals or copies of Checks deposited through the Service in your possession and your records relating to such Checks and transmissions.

 

23.               Termination.  We may terminate this Agreement at any time for any reason.  This Agreement shall remain in full force and effect unless and until it is terminated by the Bank.  Without limiting the foregoing, this Agreement may be terminated if you breach any term of this Agreement, if you use this Service for any unauthorized or illegal purposes of you use the Service in a manner inconsistent with the terms of the Deposit Account Agreement, or any other agreement with us.  Sections 5, 7, 10, 12, 14, 15, 20, 23, 27, Error! Reference source not found., and 28 shall survive termination of this Agreement

 

24.               Enforceability.  We may waive enforcement of any provision of this Agreement.  No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of the Agreement.  Any such waiver shall not affect our rights with respect to any other transaction or to modify the terms of this Agreement.  In the event that any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable to any extent, the remainder of the Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

 

25.               Ownership and License.  You agree the Bank retains all ownership and proprietary rights in this Service, associated content, technology, and website(s), including, but not limited to, the object and source codes therefore, and any and all updates, upgrades, fixes and enhancements thereto and any and all documentation, user guides and instructions pertaining thereto.  Your use of the Service is subject to and conditioned upon your complete compliance with this Agreement.  Without limiting the effect of the foregoing, any breach of this Agreement immediately terminates your right to use the Service.  Without limiting the restriction of the foregoing, you may not use the Service (i) in any anti-competitive manner, (ii) for any purpose which would be contrary to the Bank’s business interest, or (iii) to the Bank’s actual or potential economic disadvantage in any aspect.  You may use this Service only for the purpose intended in accordance with this Agreement.  You may not copy, reproduce, distribute or create derivative works from the content and agree not to reverse engineer, reverse compile, or create derivative works from any of the technology used to provide this Service.

 

26.               Other Terms.  You may not assign this Agreement.  This Agreement shall be governed by the laws of the State of Tennessee and of the United States.  The captions and headings contained in this Agreement are for convenience of reference only and shall not be used to limit the applicability or meaning of any provisions of this Agreement.  This Agreement constitutes the entire statement of the terms and conditions that apply to the subject matter hereof.  This Agreement supersedes any prior agreements between the parties relating to the Service.

 

27.               Indemnification and Liability; Third Party Claims.  You hereby indemnify Bank and each of its parents, subsidiaries and affiliates and their respective officers, directors, employees, members, partners, agents, insurers and attorneys (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) for, and hold each of the Indemnified Parties harmless from and against, all actions, causes of action, claims, damages, liabilities and expenses (including reasonable attorneys’ fees) of any nature or kind (including those by third parties) arising out of, or related to, this Agreement, including all actions, causes of action, claims, damages, liabilities and expenses arising out of, related to or resulting from: (a) your (i) failure to report required changes, (ii) transmission of incorrect data to Bank or (iii) failure to maintain compliance with the Rules, (b) (i) Bank’s provision of the Service, and/or (ii) Bank’s action or inaction in accordance with, or in reliance upon, any instructions or information received from any person Bank reasonably believes to be you, (c) your breach of any of your representations, warranties, covenants or other agreements or responsibilities under this Agreement and/or (d) your breach or violation of any Rules; provided, however, you are not obligated to indemnify Bank for any damages solely and proximately caused by Bank’s gross negligence or willful misconduct.

 

28.               LIMITATION OF LIABILITY.  IN ADDITION TO THE LIMITATION OF LIABILITIES SET FORTH IN SECTION A OF THIS AGREEMENT, TO THE FULLEST EXTENT ALLOWED BY LAW, BANK’S LIABILITY TO YOU UNDER THIS AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM BANK’S FAILURE TO EXERCISE ORDINARY CARE. 


 

SECTION D – Zelle Service

 

In addition to Sections A and B, this Section D contains the terms and conditions for use of the Zelle Service provided to you. 

 

1.                   Service Description.  The Zelle Network (“Zelle”), a third party service provider, enables you the ability to transfer money between you and others (each, a “User”) who are enrolled directly with Zelle or enrolled with another financial institution that partners with Zelle (“Network Banks”) using email addresses or mobile phone numbers.  By using this Service, you are not establishing a financial account with Zelle. All money will be transmitted by a Network Bank.  Once enrolled in the Service, you may (a) authorize a debit of your Account to send money to another User either at your initiation or at the request of that User, and/or (b) receive money from another User either at that User’s initiation or at your request, subject to the conditions of Paragraph 7 of this Section D below (Requesting Money).  We reserve the right to suspend or terminate your use of the Service if we believe that you are using the Service for other purposes, or for any unlawful purpose.  Zelle and the Zelle related marks are wholly owned by Early Warning Services, LLC and are used herein under license. 

 

2.                   Enrollment.  To enroll in the Service, you must provide us with (a) a valid email address that you agree to regularly monitor and use and (b) a permanent U.S. mobile telephone number that you agree to maintain and use at all times you are using the Service.

 

3.                   Your Representations and Warranties to the Bank.  By clicking “I agree” below, you represent and warrant to the Bank and to Zelle that (i) you have the authority to authorize debits and credits to any Accounts enrolled in the Service; (ii) you will not use the Service to send money to anyone to whom you are obligated for tax payments, payments made pursuant to court orders (including court-ordered amounts for alimony or child support), fines, payments to loan sharks, gambling debts or payments otherwise prohibited by law; (iii) you will not use the Service to request money from anyone for any such payments; (iv) you will not use a “burner” cell phone, landline telephone number, Google Voice number, or Voice over Internet Protocol; (v) you will solely to use this Service to send money to friends, family and others you trust (and conversely agree not to use the service to send money to recipients with whom you are not familiar or do not trust); (vi) you are the owner of the email address, mobile phone number, and/or other alias you enrolled, or that you have the delegated legal authority to act on behalf of the owner of such email address, mobile phone number and/or other alias to send or receive money as described in this Agreement; (vii) you will immediately notify us if any email address or mobile phone number you have enrolled is changed or surrendered by you. 

 

4.                   E-Mails and Automated Text Messages.  By using the Service, you consent to the receipt of emails or text messages from the Bank, from Zelle, from other Users that are sending you money or requesting money from you, and from other Network Banks or their agents arising from or in any way related to the Service. You agree that either the Bank or Zelle, or their/our respective agents, may use automatic telephone dialing systems in connection with text messages sent to any mobile phone number you enroll. You further acknowledge and agree:

a.       You are responsible for any fees or other charges that your wireless carrier may charge for any related data, text or other message services, including without limitation for short message service. Please check your mobile service agreement for details or applicable fees.

b.       In the case of any messages that you may send through either us or Zelle or that we may send or Zelle may send on your behalf to an email address or mobile phone number, you represent that you have obtained the consent of the recipient of such emails or automated text messages to send such emails or text messages to the recipient. You understand and agree that any emails or text messages that we send or that Zelle sends on your behalf may include your name.

c.       Supported Carriers: The Bank supports most of the popular carriers.  The Bank reserves the right, in its sole discretion and without notice, to amend supported carriers.

d.       Your wireless carrier is not liable for any delay or failure to deliver any message sent to or from us or Zelle, including messages that you may send through us or through Zelle or that we may send or Zelle may send on your behalf.

e.       To cancel text messaging from us, text STOP to 20736. For help or information regarding text messaging, text HELP to 20736 or contact our customer service at (800) 321-3176 for consumer accounts. You expressly consent to receipt of a text message to confirm your “STOP” request.

f.        Transfer instructions relating to external accounts and the transmission and issuance of data related to such instructions shall be received pursuant to the terms of this Agreement and the rules of the National Automated Clearing House Association ("NACHA") and the applicable automated clearing house ("Regional ACH") (collectively, the "Rules") and you and we agree to be bound by such Rules as in effect from time to time. In accordance with such Rules, any credit to an account shall be provisional until such credit has been finally settled by us or the third party institution which holds the account.

 

5.                   Receiving Money.  Once a User initiates a transfer of money to your email address or mobile phone number enrolled with the Service, you have no ability to stop the transfer. By using the Service, you agree and authorize us to initiate credit entries to the bank account you have enrolled.  Most transfers of money to you from other Users will occur within minutes. There may be other circumstances when the payment may take longer. For example, in order to protect you, us, Zelle and the other Network Banks, we may need or Zelle may need additional time to verify your identity or the identity of the person sending the money. We may also delay or block the transfer to prevent fraud or to meet our regulatory obligations. If we delay or block a payment that you have initiated through a request for money, we will notify you by email.  We will notify you if we delay or block a payment you have requested using the Service.  If you are receiving a payment from a business or government agency, your payment will be delivered in accordance with both this Agreement and the procedures of the business or government agency that is sending you the payment.

 

6.                   Sending Money.  You may send money to another User at your initiation or in response to that User’s request for money. You understand that use of this Service by you shall at all times be subject to (i) this Agreement, and (ii) your express authorization at the time of the transaction for us or another Network Bank to initiate a debit entry to your bank account. You understand that when you send the payment, you will have no ability to stop it. You may only cancel a payment if the person to whom you sent the money has not yet enrolled in the Service.  If the person you sent money to has already enrolled with Zelle, either in the Zelle mobile app or with a Network Bank, the money is sent directly to their bank account (except as otherwise provided below) and may not be canceled or revoked.  In most cases, when you are sending money, the transfer will occur in minutes; however, there are circumstances when the payment may take longer. For example, in order to protect you, us, Zelle and the other Network Banks, we may need additional time to verify your identity or the identity of the person receiving the money. If you are sending money to someone who has not enrolled as a User with either Zelle or a Network Bank, the transfer may take up to two (2) business days from the day the intended recipient responds to the payment notification by enrolling as a User. During this period, and in any other circumstance when we need additional time to verify the transfer details, a hold will be placed on your account for the amount of the transfer. You understand and acknowledge that a person to whom you are sending money and who is not registered as a User may fail to register with Zelle, or otherwise ignore the payment notification, and the transfer may not occur. If the person to whom you are sending money does not enroll, set up an email address or mobile number and accept the transfer within 14 days, the transfer will be cancelled. The money may also be delayed or the transfer may be blocked to prevent fraud or comply with regulatory requirements. We will notify you by email if we delay or block a payment that you have initiated using the Service.  We have no control over the actions of other Users, other Network Banks or other financial institutions that could delay or prevent your money from being delivered to the intended User.  The Bank, in its sole discretion, may implement limits, with or without notice, on the number or amount payments you send through the Service.  You also acknowledge and understand that neither the Bank nor Zelle offer a protection program for authorized payments made through the Service (for example, if you do not receive goods or services that you paid for or if the goods or services are damaged or otherwise not what you expected). 

 

7.                   Requesting Money.  You may request money from another User. You understand and acknowledge that Users to whom you send payment requests may reject or ignore your request. Neither we nor Zelle guarantee that you will receive money from other Users by sending a payment request. If a User ignores your request, we may decide or Zelle may decide, in our sole discretion, that we will not send a reminder or repeat request to that User.  By accepting this Agreement, you agree that you are not engaging in the business of debt collection by attempting to use the Service to request money for the payment or collection of an overdue or delinquent debt; to request money that is owed to another person; or to collect any amounts that are owed pursuant to a court order. You agree to indemnify, defend and hold harmless us, Zelle, their owners, directors, officers agents and Network Banks from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorney's fees, resulting from or arising out of any request for money that you send that is related to overdue or delinquent amounts.  You agree to receive money requests from other Users, and to only send requests for legitimate and lawful purposes. Requests for money are solely between the sender and recipient and are not reviewed or verified by us or by Zelle. Neither we nor Zelle assume responsibility for the accuracy or legality of such requests and do not act as a debt collector on your behalf or on behalf of the sender of a request for money.  We reserve the right, but assume no obligation, to terminate your ability to send requests for money in general, or to specific recipients, if we deem such requests to be potentially unlawful, abusive, offensive or unwelcome by the recipient.

 

8.                   Errors.  You agree to immediately notify us of any errors on your Account or through the Service and as set forth in Section A, paragraph 35 of this Agreement (Error Resolution).

 

9.                   Fees.  There is currently no fee for sending or receiving a transfer under the Zelle Service.

 

10.               Right to Terminate Access.  Either Bank or Zelle may terminate your access to the Service at any time, with our without notice, and at the sole discretion of Bank or Zelle.

 

11.               Limitation of Liability.  IN ADDITION TO THE LIMITATION OF LIABILITY SET FORTH IN SECTION A OF THIS AGREEMENT, NEITHER WE NOR ZELLE SHALL HAVE LIABILITY TO YOU FOR ANY TRANSFERS OF MONEY UNDER THE SERVICE, INCLUDING WITHOUT LIMITATION, (I) ANY FAILURE, THROUGH NO FAULT OF US OR ZELLE TO COMPLETE A TRANSACTION IN THE CORRECT AMOUNT, OR (II) ANY RELATED LOSSES OR DAMAGES. NEITHER WE NOR ZELLE SHALL BE LIABLE FOR ANY TYPOS OR KEYSTROKE ERRORS THAT YOU MAY MAKE WHEN USING THE SERVICE. 

 

12.               Indemnification. In addition to the indemnification requirements in Section A and elsewhere in this Agreement, you acknowledge and agree that you are personally responsible for your conduct while using the Service, and except as otherwise provided in this Agreement, you agree to indemnify, defend and hold harmless the Bank, Zelle, and their respective owners, directors, officers, representatives, agents and Network Banks from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of your use, misuse, errors, or inability to use the Service, or any violation by you of the terms of this Agreement.

 

13.               Consent to Share Personal Information; Privacy and Information Security.  You expressly consent and hereby authorize the Bank to exchange information with Zelle, Network Banks and others for the purpose of processing payment transactions in accordance with the Bank’s processes and procedures and determined necessary in the Bank’s discretion for use of the Service.  You can access our Privacy Policy, which is incorporated into and made a part of this Agreement, by going to our website at www.firstcnb.com.

 

14.               Wireless Operator Data.  We or Zelle may use information on file with your wireless operator to further verify your identity and to protect against or prevent actual or potential fraud or unauthorized use of the Service. By using the Service, you authorize your wireless operator to use your mobile number, name, address, email, network status, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber status details, if available, solely to allow verification of your identity and to compare information you have provided to us or to Zelle with your wireless operator account profile information for the duration of our business relationship. You may access Zelle’s Privacy Policy by going to https://www.zellepay.com/privacy-policy and to read how Zelle treats your data.

 

BY CLICKING ON THE “I AGREE” BUTTON RELATING TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THAT YOU ACCEPT THIS AGREEMENT WITHOUT MODIFICATION, AND THAT YOU WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT JUST AS IF YOU SIGNED THE AGREEMENT.  YOU AGREE TO THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT AND SUCH TERMS AND CONDITIONS AS MAY BE AMENDED IN THE FUTURE.

I Agree to the above terms and conditions.

 


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