Online Banking Disclosure
PERSONAL ONLINE BANKING SERVICE AGREEMENT
This Agreement ("Agreement") governs the use of FineMark National Bank & Trust Personal Online Banking Services ("the Service") including the terms and conditions of the Bill Payment Service and is made and entered into by and between FineMark National Bank & Trust ("Bank") and each person who signs the Bank's signature card for the Account, or is referenced on the Bank's records as an owner of the Account; or each party whose signature appears on a credit line application; or is referenced on the Bank's records as an owner of the Account ("Client") also referred to as ("you"). Each Client is jointly and severally liable for all transactions initiated through the Service, including overdrafts, even if the Client did not participate in the transaction, which resulted in the transaction.
The Service is accessed through a computer and modem to electronically connect with a database that allows you to view account balance and transaction information, transfer funds among designated accounts, pay bills from designated accounts, send secure electronic mail to the Bank and receive electronic mail from the Bank, affect stop payments, view and print copies of checks, view and print statements, select statement delivery method, and reorder checks.
The terms and conditions of any deposit account, rules and regulations, schedule, signature card, credit agreement, including any disclosures made pursuant to such agreements, or authority executed by or made available to the Client and any subsequent amendments to any of the foregoing, are incorporated herein by reference. However, if there is any conflict or inconsistency between the terms and conditions stated in the other agreements and those of this Agreement, the terms and conditions of this Agreement shall control to the extent of such conflict or inconsistency. The terms and conditions of this agreement may be modified or amended by the Bank upon written notice sent to you or by posting to the Web Site and sending you an Alert Notice or similar written notice thereof. Your continued use of the Service after such notification of change shall be understood as your agreement to be bound by all such changes.
The Electronic Funds Transfer Act governs some of the transactions permitted under this Agreement and some terms and conditions included in the Agreement are required by this Act.
CONSENT TO ELECTRONIC CONTRACTING
You agree that the Bank may make agreements with you concerning the Service by electronic means. All agreements entered into by electronic means will be deemed valid, authentic and shall have the same legal effect as agreements entered into in writing. You will be deemed to have received any electronic messages sent to you if such messages are sent to the latest email address you have provided to the Bank. You further agree that electronic copies of communications are valid as “originals” and you will not contest the validity of the electronic copies, absent proof of altered data or tampering. This consent to the use of electronic agreements and communications shall apply to all agreements and communications made in conjunction with this agreement and the Service.
ELECTRONIC CONSENT TO THE SERVICE
By clicking on the "I Agree" button during the Personal Online Banking enrollment process, you indicate your execution and acceptance of the electronic delivery of this Agreement and your authorization and informed consent to the electronic message and delivery of Electronic Records selected for your Designated Accounts as described in this agreement. By clicking on the “I Agree” button during the Personal Online Banking enrollment process and accepting the terms and conditions of this Agreement, you represent and warrant that you are authorized to do so on behalf of all Owners for the Designated Accounts.
USER ID, PASSWORD AND SECURITY PROCEDURES
Upon becoming an on-line banking Client, you will self-select your user ID and password, which will allow you access to your account information. Use of the user ID and password will indicate to the Bank your acceptance of the terms and conditions governing your account(s) and this Agreement and if applicable, the Bill Payment Service terms and conditions. Each time you access account information, make transfers or give transfer-related instructions, you will be required to enter your user ID and password. If your user ID and/or password is lost or stolen, or is known by another individual, you must notify the Bank immediately. Failure to notify the Bank promptly could result in loss of funds. You are responsible for maintaining the confidentiality of your user ID and password and any breach of confidentiality shall promptly be reported to the Bank. You may contact the Bank at 866-810-7398 to report such security breach. The Bank reserves the right to prevent your access to the Service should we have reason to believe the confidentiality of your password has been compromised.
You understand that the Bank has implemented a security procedure for the purpose of verifying the authenticity of the payment instructions transmitted to the Bank by you ("instructions"), and not for the purpose of detecting errors in such instructions. Such security procedures include (i) a unique file identification number and transmission password, and (ii) encryption. You agree that this procedure constitutes a commercially reasonable method of providing security against unauthorized instructions. You agree to be bound by any instruction issued by you and received and verified by the Bank in accordance with such security procedure, and you shall indemnify and hold Bank harmless from and against any loss suffered or liability incurred by, or arising from, the execution of instructions in good faith and in compliance with such security procedure.
In an effort to provide the highest degree of confidentiality and security, the Bank recommends the use of browsers that provide encryption using a 128-bit key. The higher the level of encryption, the harder it is for unauthorized people to read information. Commercial, off-the-shelf browsers typically support 40-bit encryption; however, many browser suppliers offer special 128-bit encryption versions, available for download. The Bank recommends that Clients protect their valuable financial information by using the most secure encryption possible. The Bank is not liable for losses resulting from the use of 40-bit encryption. If you elect to use the 40-bit browser, this implies your acceptance of this risk.
COMPUTER EQUIPMENT AND SOFTWARE
You are solely responsible for the maintenance, installations and operation of your computer and for the software used in accessing the Service. The Bank shall not be responsible for any errors, deletions, or failures that occur as a result of any malfunction of your computer or software, nor will the Bank be responsible for any computer virus that affects your computer or the software while using the Service.
By accessing the Service through the World Wide Web, you agree that the Bank shall not be liable for any indirect, incidental, or consequential costs, expenses or damages (including lost savings or profit, lost data, business interruption or attorney's fees).
Additionally, you must have an Internet Service Provider, an email address, and a browser to utilize the Service through the Internet.
To subscribe to the Service, you must maintain at least one Account with the Bank which may include the following types of Accounts: checking account, savings account, money market account, loan or line of credit ("Accounts"). The Service will allow you to access more than one Account, to view Account balances and transaction information, transfer funds among designated Accounts, pay bills from designated Accounts (not savings Accounts, loans, or lines of credit), send electronic mail to the Bank and receive electronic mail from Bank.
The Bank reserves the right to refuse to open an Account or to deny the Client the ability to access the Service, to limit access or transactions or to revoke a Client's access to Service without advance notice to Client.
DAILY PROCESSING DEADLINES
Account information displayed through Personal Online Banking is the current information at the time the transaction takes place. Payments, Advances and Funds Transfers between Account(s) initiated on your computer using Personal Online Banking, and received by the Bank or its agent(s) by 11:00 p.m. EST Monday – Friday, will be effective on the current business day. Payments, Advances and Funds Transfers processed on your computer using Personal Online Banking, and received after 11:00 p.m. EST Monday - Friday or all day Saturday, Sunday, and banking holidays, will be effective the following business day.
Transfers are limited to the balance in the account. If your payment or transfer exceeds the balance in the account, it will not be processed.
PAYMENT, ADVANCE OR FUNDS TRANSFER AUTHORIZATION AND REMITTANCE
The Provider shall incur no liability and any Service Guarantee shall be void if the Provider is unable to complete any payment, advance or funds transfers initiated by you because of the existence of any one or more of the following circumstances:
1. If, through no fault of the Provider, your Payment Account does not contain sufficient funds to complete the transaction.
2. The payment, advance or funds transfer function is not working properly and you know or have been advised by the Provider about the malfunction before you execute the transaction;
3. Circumstances beyond the control of the Provider (such as, but not limited to, fire, flood, or interference from an outside force) prevent the proper execution of the transaction and the Provider has taken reasonable precautions to avoid those circumstances.
Provided none of the foregoing exceptions are applicable, if the Provider causes an incorrect amount of funds to be removed from your Payment Account or causes funds from your Payment Account to be directed to a Payment Account which does not comply with your Payment Instructions, the Provider shall be responsible for returning the improperly transferred funds to your Payment Account, and for directing the proper funds to the correct Payment Account.
FUNDS TRANSFER CANCELLATION REQUESTS
You may cancel or edit any scheduled funds transfer (including recurring funds transfers) by following the directions within the application. There is no charge for canceling a scheduled funds transfer. Once the Bank has begun processing a funds transfer, it cannot be cancelled or edited.
WITHDRAWAL TRANSACTION LIMITATIONS
The restrictions on the number of withdrawals from your savings and money market Accounts apply to payments and funds transfers between Accounts and bills paid from these Accounts initiated through Service.
Alerts Service allows you to receive email notifications concerning account balance and other thresholds for eligible accounts. Each Alert has different options that you will select or define. You are under no obligation to use the Alerts Service. Alert information is not encrypted and will never contain your full account number. The information contained in an Alert is as of a specific time and date. You understand that Alerts may be delayed for a variety of reasons and will not reflect account activity that occurred after the Alert was sent. You or Bank may terminate your Alerts Service at any time without notice.
You agree to provide us with a current email address to receive email notifications from the Bank. You must immediately notify the Bank of any changes or updates to your email address or if it becomes inoperative or inactive. You agree to immediately provide another email address. You also agree that the Bank is under no obligation to re-transmit any notifications to you that were returned “undeliverable” or otherwise rejected for delivery.
Electronic Mail (Secure Messages) to the Bank may be delayed; therefore, if you need the Bank to receive information concerning your Account immediately, you must contact the Bank in person or by telephone (i.e. stop payments, to report a lost or stolen card or to report unauthorized use of your Account). The Bank shall have a reasonable period of time after receipt to act on requests or information you send by electronic mail.
You may access Account information through the Service 24 hours a day, seven days a week, except for interruptions due to maintenance or matters beyond the Bank's control.
TERMS AND CONDITIONS OF THE BILL PAYMENT SERVICE ("terms and conditions")
If you choose to subscribe to the Bill Payment Service in addition to the Service, you are subject to the following terms and conditions. Selection of the Bill Payment Service will enable you to make payments (either one time or recurring payments) online from your designated checking or money market deposit account to third parties as you direct.
"Bill Payment Service" means the bill payment service offered the by Bank through FIS Corporation (together, "Provider").
"Payee" is the person or entity to which you wish a bill payment to be directed.
"Payment Instruction" is the information provided by you to the Bill Payment Service for a bill payment to be made to the Payee (such as, but not limited to, Payee name, Payee account number, and Scheduled Payment Date).
"Payment Account" is the checking account from which bill payments will be debited.
“Billing Account” is the checking account from which all Bill Payment Service fees will be automatically debited (if applicable).
"Business Day" is every Monday through Friday, excluding Federal Reserve holidays.
"Scheduled Payment Date" is the day you want your Payee to receive your bill payment and is also the day your Payment Account will be debited, unless the Scheduled Payment Date falls on a non-Business Day in which case the previous Business Day will be considered to be the Scheduled Payment Date.
“Scheduled Payment” is a payment that has been scheduled through the Bill Payment Service but has not begun processing.
BILL PAYMENT SCHEDULING
The earliest possible Scheduled Payment Date for each Payee (typically five (5) or fewer Business Days from the current date) will be designated within the application when you are scheduling the payment. Therefore, the application will not permit you to select a Scheduled Payment Date less than the earliest possible Scheduled Payment Date designated for each Payee.
THE SERVICE GUARANTEE
Due to circumstances beyond the control of the Provider, particularly delays in handling and posting payments by Payees or financial institutions, some transactions may take longer to be credited to your account. The Provider will bear responsibility for any late payment related charges up to $50.00 per payment, should a payment post after its Due Date as long as the payment was scheduled in accordance with the guidelines described under “Bill Payment Scheduling” in this Agreement.
PAYMENT AUTHORIZATION AND PAYMENT REMITTANCE
By providing the Bill Payment Service with names and account information of Payees to whom you wish to direct payments, you authorize the Bill Payment Service to follow the Payment Instructions that it receives through the payment system. In order to process payments more efficiently and effectively, the Bill Payment Service may edit or alter payment data or data formats in accordance with Payee directives.
When the Bill Payment Service receives a Payment Instruction, you authorize the Provider to debit your Payment Account and remit funds on your behalf so that the funds arrive as close as reasonably possible to the Scheduled Payment Date designated by you. You also authorize the Provider to credit your Payment Account for payments returned to the Bill Payment Service by the United States Postal Service or Payee, or payments remitted to you on behalf of another authorized user of the Bill Payment Service.
The Provider will use its best efforts to process all your payments properly. However, the Provider shall incur no liability and any Service Guarantee shall be void if the Provider is unable to complete any payments initiated by you because of the existence of any one or more of the following circumstances:
1. If, through no fault of the Provider your Payment Account does not contain sufficient funds to complete the transaction or the transaction would exceed the credit limit of your personal reserve account (if applicable);
2. The payment processing center is not working properly and you know or have been advised by the Provider about the malfunction before you execute the transaction;
3. You have not provided the Provider with the correct Payment Account information, or the correct name, address, phone number, or account information for the Payee; and/or,
4. Circumstances beyond control of the Provider (such as, but not limited to, fire, flood, or interference from an outside force) prevent the proper execution of the transaction and the Provider has taken reasonable precautions to avoid those circumstances.
Provided none of the foregoing exceptions are applicable, if the Provider causes an incorrect amount of funds to be removed from your Payment Account or causes funds from your Payment Account to be directed to a Payee which does not comply with your Payment Instructions, the Provider shall be responsible for returning the improperly transferred funds to your Payment Account, and for directing to the proper Payee any previously misdirected transactions, and, if applicable, for any late payment related charges.
The Provider reserves the right to select the method in which to remit funds on your behalf to your Payee. These payment methods may include, but may not be limited to, an electronic payment, an electronic to check payment, or a paper check (funds remitted to the Payee are deducted from your Payment Account when the check is printed).
PAYMENT CANCELLATION REQUESTS
You may cancel or edit any Scheduled Payment (including recurring payments) by following the directions within the application. There is no charge for canceling or editing a Scheduled Payment. Once the Bill Payment Service has begun processing a payment, it cannot be cancelled or edited.
Payments to Payees outside of the United States or its territories are prohibited through the Bill Payment Service.
Tax payments and court ordered payments may be scheduled through the Bill Payment Service; however, such payments are discouraged and must be scheduled at your own risk. In no event shall the Provider be liable for any claims or damages resulting from your scheduling of these types of payments. The Service Guarantee as it applies to any late payment related charges is void when these types of payments are scheduled and/or processed by the Bill Payment Service. The Provider has no obligation to research or resolve any claim resulting from an exception payment. All research and resolution for any misapplied, miss-posted or misdirected exception payments will be the sole responsibility of you and not of the Provider.
EXCLUSIONS OF WARRANTIES
THE BILL PAYMENT SERVICE AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
YOUR LIABILITY FOR UNAUTHORIZED TRANSFERS
If you tell us within two (2) Business Days after you discover your password or other means to access your Account has been lost or stolen, your liability is no more than $50.00 should someone access your Account without your permission. If you do not tell us within two (2) Business Days after you learn of such loss or theft, and we can prove that we could have prevented the unauthorized use of your password or other means to access your Account if you had told us, you could be liable for as much as $500.00. If your monthly statement contains transfers that you did not authorize, you must tell us at once. If you do not tell us within sixty (60) days after the statement was sent to you, you may lose any amount transferred without your authorization after the sixty (60) days if we can prove that we could have stopped someone from taking the money had you told us in time. If a good reason (such as a long trip or a hospital stay) prevented you from telling us, we may extend the period.
ERRORS AND QUESTIONS
In case of errors or questions about your transactions, you should as soon as possible notify us via one of the following:
1. Call us at 877-461-5901, during regular business hours or 866-810-7398 after business hours, weekends or holidays.
2. Contact us by using the application's secure message feature; and/or,
3. Write us at:
FineMark National Bank & Trust
12681 Creekside Lane
Fort Myers, FL 33919
If you think your statement is incorrect or you need more information about a Service transaction listed on the statement, we must hear from you no later than sixty (60) days after the FIRST statement was sent to you on which the problem or error appears. You must:
1. Tell us your name and Bank account number;
2. Describe the error or the transaction in question, and explain as clearly as possible why you believe it is an error or why you need more information; and,
3. Tell us the dollar amount of the suspected error.
If you tell us verbally, we may require that you send your request in writing within ten (10) Business Days after your verbal notification. We will tell you the results of our investigation within ten (10) Business Days after we hear from you, and will correct any error promptly. However, if we require more time to confirm the nature of your complaint or question, we reserve the right to take up to forty-five (45) days to complete our investigation. If we decide to do this, we will provisionally credit your Payment Account within ten (10) Business Days for the amount you think is in error. If we ask you to submit your complaint or question in writing and we do not receive it within ten (10) Business Days, we may not provisionally credit your Payment Account. If it is determined there was no error we will mail you a written explanation within three (3) Business Days after completion of our investigation. You may ask for copies of documents used in our investigation. The Bank may revoke any provisional credit provided to you if we find an error did not occur.
SERVICE FEES AND ADDITIONAL CHARGES
There is no fee for on-line banking or the Bill Payment Service. There may be a charge for additional transactions and other optional services. You agree to pay such charges and authorize the Provider to deduct the calculated amount from your designated Billing Account, along with any additional charges that may be incurred by you. Other financial fees associated with your standard deposit accounts and other Bank services will continue to apply. You are responsible for any and all telephone access fees and/or Internet service fees that may be assessed by your telephone and/or Internet service provider.
FAILED OR RETURNED TRANSACTIONS
In using the Bill Payment Service, you are requesting the Provider to make payments for you from your Payment Account. If we are unable to complete the transaction for any reason associated with your Payment Account (for example, there are insufficient funds in your Payment Account to cover the transaction), the transaction will not be completed. In some instances, you will receive a return notice from the Provider. In such case, you agree that:
1. You will reimburse the Provider immediately upon demand the transaction amount that has been returned to the Provider;
2. For any amount not reimbursed to the Provider within fifteen (15) days of the initial notification, a late charge equal to 1.5% monthly interest or the legal maximum, whichever rate is lower, for any unpaid amounts may be imposed;
3. You will reimburse the Provider for any fees imposed by your financial institution as a result of the return;
4. You will reimburse the Provider for any fees it incurs in attempting to collect the amount of the return from you; and,
5. The Provider is authorized to report the facts concerning the return to any credit–reporting agency.
ALTERATIONS AND AMENDMENTS
This Agreement, applicable fees and service charges may be altered or amended by the Provider from time to time. In such event, the Provider shall provide notice to you. Any use of the Bill Payment Service after the Provider provides you a notice of change will constitute your agreement to such change(s). Further, the Provider may, from time to time, revise or update the applications, services, and/or related material, which may render all such prior versions obsolete. Consequently, the Provider reserves the right to terminate this Agreement as to all such prior versions of the applications, services, and/or related material and limit access to only the Provider's more recent revisions and updates.
ADDRESS OR BANKING CHANGES
It is your sole responsibility to ensure the contact information in your user profile is current and accurate. This includes, but is not limited to, name, address, phone numbers and email addresses. Changes can be made by contacting Client Service. Any changes in your Payment Account should also be made in accordance with the procedures outlined within the application's Help files. All changes made are effective immediately for scheduled and future payments paid from the updated Payment Account information. The Provider is not responsible for any payment processing errors or fees incurred if you do not provide accurate Payment Account or contact information.
SERVICE TERMINATION, CANCELLATION, OR SUSPENSION
In the event you wish to cancel the Bill Payment Service, you may contact the Bank via one of the following:
1. Call us at 877-461-5901, during regular business hours.
2. Contact us by using the application's secure message feature; and/or,
3. Write us at:
FineMark National Bank & Trust
12681 Creekside Lane
Fort Myers, FL 33919
Any payment(s) the Provider has already processed before the requested cancellation date will be completed by the Provider. Scheduled Payments including recurring payments will not be processed once the Bill Payment Service is cancelled. The Provider may terminate or suspend Bill Payment Service to you at any time and for any reason, including but not limited to non-use of the Bill Payment Service. Neither termination nor suspension shall affect your liability or obligations under this Agreement.
The Provider reserves the right to refuse to pay any Payee to whom you may direct a payment. The Provider will notify you promptly if it decides to refuse to pay a Payee designated by you. This notification is not required if you attempt to make a prohibited payment or an exception payment under this Agreement.
In using the Bill Payment Service, you understand that Payees and/or the United States Postal Service may return payments to the Provider for various reasons such as, but not limited to, Payee’s forwarding address expired; Payee account number is not valid; Payee is unable to locate account; or Payee account is paid in full. The Provider will use its best efforts to research and correct the returned payment and return it to your Payee, or void the payment and credit your Payment Account. You may receive notification from the Provider.
Your enrollment in the Bill Payment Service may not be fulfilled if the Provider cannot verify your identity or other necessary information. Through your enrollment in the Bill Payment Service, you agree that the Provider reserves the right to request a review of your credit rating at its own expense through an authorized bureau. In addition, you agree that the Provider reserves the right to obtain financial information regarding your account from a Payee (for example, to resolve payment-posting problems or for verification).
Your account information is confidential. The Bank may, however, disclose information to a third party about your account of the transfers only if you have given us permission to do so, or when it is necessary to complete transactions; verify the existence or status of your account to a third party such as a credit bureau or merchant; to comply with a court order or the request of a government agency where it is necessary for activating additional services; or to a consumer reporting agency for research purposes only. By using the Service, you agree the information and transfers will be recorded and/or data captured. By using the Service, you consent to such recording.
If you do not sign on or have outstanding scheduled bill payments or transfers through Personal Online Banking for 90 days or more, we may cancel your Service without further notice.
You agree to allow Provider, for the purpose of qualifying and maintaining your accounts and Service, to the extent permitted under applicable law, to obtain information from credit reporting agencies as Provider deems necessary.
In the event of a dispute regarding the Service, you and the Provider agree to resolve the dispute by looking to this Agreement. You agree that this Agreement is the complete and exclusive statement of the agreement between you and the Provider which supersedes any proposal or prior agreement, oral or written, and any other communications between you and the Provider relating to the subject matter of this Agreement. If there is a conflict between what an employee of the Provider or Client Service Department says and the terms of this Agreement, the terms of this Agreement will prevail.
If any provision of the Agreement is found to be invalid or unenforceable under applicable law, said provision shall be ineffective to the extent of such invalidity only, without affecting the remaining provisions of this Agreement.
Should any dispute arise between you and the Provider relating to the account and if following the good faith negotiation of the dispute, it cannot be resolved, it shall first be submitted to mediation. Mediation shall be conducted at the nearest office of the mediation organization mutually agreed upon by you and Provider.
JURY TRIAL WAIVER
YOU AND THE BANK, EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF THIS AGREEMENT OR RELATING TO THE ACCOUNT AS PERMITTED UNDER APPLICABLE LAW.
We may waive any term or provision of this Agreement at any time or from time to time, but any such waiver shall not constitute a waiver of the term or provision in the future.
You may not assign this Agreement to any other party. The Bank may assign this Agreement to any future, directly or indirectly, affiliated company. The Bank may also assign or delegate certain aspects of its rights and responsibilities under this Agreement to independent contractors or other third parties.
The Provider shall not be deemed to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Provider. No delay or omission on the part of the Provider in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
The captions of sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions and will be subject to the provisions of all applicable operating circulars of the Federal Reserve Bank and any other applicable provisions of Federal law.
THE FOREGOING SHALL CONSTITUTE THE PROVIDER'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF THE EQUIPMENT, SOFTWARE, AND/OR THE PROVIDER.
FineMark National Bank & Trust Member FDIC
Revised: May 2014