Online Banking Agreement

First Merchants Bank, N.A.

Online Banking Agreement and Disclosure Statement

(Effective July 2005)

 

We welcome you to Online Banking. Online Banking is the name for certain services offered by First Merchants Bank.  It includes the services described in this Agreement.  "Agreement" means the Terms and Conditions of the service. You should read this Agreement carefully and keep it with your other account records. It includes certain disclosures for electronic funds transfers. The following terms and definitions apply when used in this Agreement:

 "Collected Funds" means your Current Balance minus the amount of any checks that are in the process of being collected.

 "Company ID" means a specific code that is assigned by the Bank to your Company that will be used to obtain access to the Service.   

 "Due Date" means the date reflected on your Payee statement for which the payment is due. It is not the late date or grace period.

 "Financial Software" means the software provided to allow you to access and use the Service.

 "Future Dated Transfer" means a funds transfer that will be initiated on a future day depending on your selection of the Transmit Date.

 "Future Payment" means a payment, other than a Recurring Payment, that will be initiated on a future business day depending on your selection of the Transmit Date.

 "Password" means a personal code selected by you that will be used to obtain access to the Service. The term includes any additional numbers and words required by the Financial Software or equipment used, or otherwise established by you.

 "Payee" means any person or entity to which you direct a payment through the Service.

 "PC" means a personal computer (including, without limitation, any personal data assistant or other wireless computing or access device) that meets the requirements for use of the Service.

 "Recurring Payment" means a regular payment that is automatically made during recurring intervals permitted by the Service based on a recurring Transmit Date.

 "Same Day Payment" means a payment that will be initiated on the same day that you enter the payment information through the Service.

 "Service" means the individual and collective online banking services available in connection with the Financial Software and described herein.

 "Service Account" means (i) the primary checking account (or checking accounts) designated by you that will be debited for payments to Payees initiated through the Service (any such checking account being referred to herein as a "Primary Service Account"), (ii) all other eligible deposit accounts that are linked to your Primary Service Account, (iii) lines of credit from which funds may be transferred to a Service Account, (iv) investment accounts, such as IRAs which may be funded from a Service Account, and (v) any other account or financial product accessed using the Service. All of these accounts are subject to this Agreement, (vi) You agree to maintain a deposit account with us during the term of this agreement. 

 "Transmit Date" means, (i) with respect to bill payments, the date on which the payment is to be initiated for remittance to the Payee, (ii) with respect to fund transfers, the date on which the transfer is to be initiated to us for processing.

 "User's Guide" means any instructional materials (as amended from time to time) provided with the Service.

 "We," "us" and "our" means First Merchants Bank, N.A.

"You," "your" and "yours" means (i) each and every person who now or hereafter is an account holder with respect to the Service Account or has an interest therein; and (ii) each and every person who now or hereafter subscribes to the Service or uses the Service.

Other definitions may appear within the remaining text of this Agreement. By using or allowing others to use the Service, you agree to abide by and be bound by the terms and conditions of this Agreement.

 

ONLINE BANKING SERVICE

1.  Service Transactions. You may use the Service to perform the following transactions with your PC: 

 

• a. make payments to a Payee from your Service Accounts;
• b. review past or scheduled payments from your Service Accounts;
• c. order transfers of funds among eligible Service Accounts;
• d. order transfers of funds from Service Accounts to certain loan accounts accessible through Online Banking;
• e. perform balance inquiries with respect to each Service Account accessible through Online Banking;
• f. view account activity within each Service Account;
• g. communicate directly with us via electronic messaging;
• h. request advances from eligible loan accounts accessible through Online Banking to your Primary Service Account; and
• i. any additional services that may be added to enhance the service.

 

2.   Limitations. Your use of the Service is subject to the following limitations:

Dollar Amount. There may be limits on the dollar amount of the transactions you can make using the Service. These limits are for security reasons and may change from time to time.

Frequency. There may be limits on the number of transactions you can make using the Service. These limits are for security reasons and may change from time to time.

Wireless Device. We do not support wireless access to the Service.

Foreign Payments. Payments to Payees outside the United States or its territories are prohibited through the Service.

Other. Your use of the Service is subject to the following additional limitations:

 

You acknowledge and agree that any payment of alimony, child-support, taxes, or other court-directed or governmental payments, fines, or penalties or any payment to settle a securities transaction through the Service is prohibited, and you agree not to make or attempt to make any such payments. We may process or refuse to process any such payments in our sole and absolute discretion, and, in any event, to the fullest extent permitted by law, you assume all risk relating to the proper scheduling, initiation, processing, transmission, receipt, and application of such payments, and you release us from any and all claims, liabilities, and/or damages resulting from your making or attempting to make any such payments through the Service, whether such claims, liabilities and/or damages arise (or would arise) under this Agreement or otherwise.

 

You may not make a payment in any currency other than U.S. dollars. You are not permitted under applicable law to make more than six preauthorized transfers from a savings or money market account each statement period. No more than three of the transfers may be made by draft, check, debit card, or similar order to a third party (to the extent permitted by these accounts). Reminder- Each bill pay transmitted from a money market account or other limited transaction account will be counted towards the account's transaction limitation during the statement period.

Funds transferred from Service Accounts to loan accounts accessible through Online Banking will be applied to such loan accounts according to the terms of the agreements establishing such loan accounts. There may be additional limitations elsewhere in this Agreement. Your ability to initiate transactions also may be limited by the terms of your deposit, loan, or other agreements with us or applicable law. You agree to abide by and be bound by all applicable limitations.

3.  PC Specifications. In order to use the Service, your PC must meet the minimum specifications required for use of the Financial Software. 

 

• a. An IBM or MAC compatible computer
• b. Internet Access
• c. Web Browsers supported are as follows^1:
• i. Installation Browser MSIE 6.1.2600.0000
• ii. Installation Browser Netscape 7 for Solaris
• iii. MSIE 5.5.
• iv. Netscape 4.79
• v. Opera 6.04
• vi. Netscape 6.2.1

 

1. `To ensure proper functionality with the system, your browser must be configured to accept "cookies" and JavaScript enabled.

 

4. Virus Protection. We are not responsible for any computer virus, problems or malfunctions resulting from a computer virus, or related problems that may be associated with the use of an online system. We recommend that you routinely update your virus software, apply all security patches for your operating system and install a firewall on your PC. We are not responsible for any errors or failures resulting from defects or malfunctions of the Financial Software. WE MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU REGARDING YOUR PC OR RELATED EQUIPMENT, OR YOUR INTERNET SERVICE PROVIDER OR ITS EQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. For additional information please see our Security Guidelines located on our website at www.firstmerchants.com at the link for our Privacy Statement.

 

5. Bill Payment.  Please refer to the Web Billing & Payment Service Terms & Conditions for bill payment usage terms and conditions.

 

6. Reviewing Payments. The Service automatically stores records of past payments and payments scheduled for the future. The number of records that will be stored for any particular time period will vary at our discretion.

 

7. Performing Account Inquiries and Fund Transfers. You may use the Service to determine the balance and recent activity in the Service Accounts and to transfer funds among Service Accounts. Any balance or recent activity shown on your PC will include a date as of which the balance is current. The balance or recent activity shown on your PC may include deposits still subject to verification by us. The balance or recent activity shown also may differ from your records because it may not include deposits in progress, outstanding checks, or other withdrawals, payments, or charges.

 

8. Same Day Transfer. A Same Day funds transfer must be entered by the cut-off time on a business day in order for the transfer to be posted to your account on the same day. Cut-off times vary depending on the type of transaction. Transfer cut-off times are: 

 

6:45 PM (Indiana East Time) for transfers to all accounts

 

9. Future Dated Transfers. A request to transfer funds between Service Accounts may be scheduled for a future date. Future dated transfers may be scheduled as a one-time request or a recurring request based on the instructions entered with the request. Future dated transfers will be initiated to us on the Transmit Date requested, not the date the transfer is scheduled. Future dated transfers will transmit on any day regardless of holidays, weekends and non-business days. For example, if you enter a future dated transfer that results in a Transmit Date of August 5th, and August 5th is a Saturday, then the Transfer will be initiated on Saturday, August 5th. A future dated transfer may be cancelled, via the service, with notice at least one day prior to the processing time (8:00 a.m. Indiana East Time) for that requested Transmit Date.

 

10. Deposit Only Account. If offered as part of the Service, you may designate through the Service an account maintained with us by another person for the purpose of making deposits to that account from funds in your Service Accounts. You may do so on a one-time or recurring basis. Transfers from your Service Accounts to third-party accounts will be made in the same manner as transfers among your Service Accounts. This service is restricted to deposit transfers only. You will not be able to otherwise access or view a third-party account for any reason. We may offer the deposit only account option at our discretion, and the terms of this paragraph 10 are applicable only if this option is offered as part of the Service.

 

11. Personal Alerts. If you request periodic personal alerts regarding the current balance in your accounts or other information from the System, whether received by email or otherwise, the information contained in these alerts will be fixed at a given time on the date the alert is sent. Actions on your part, such as deposits, withdrawals or transfers, made subsequent to the sending of the alert, but before you have received the alert, may affect the accuracy of the information in the alert. 

 

12. Electronic Messaging (E-mail). The Service provides you with the ability to send and receive messages to and from us by two means: (i) Conventional E-mail or (ii) Secure Messaging. (i) Conventional E-mail is not a secure method of communication over the Internet, and we recommend that you do not send confidential or privileged information, such as account numbers and financial information, by conventional E-mail. An electronic message sent by you will not be immediately received by us. (ii) Secure Messaging is a secure method of communication contained within the Service application. Secure Messaging allows secure messages to be sent and received from within the Service application. If you need to contact us immediately, please refer to the paragraph 23 titled "Errors or Questions." No action will be made on any electronic message you send to us until we actually receive your message and have a reasonable opportunity to act on it. You cannot use Conventional E-mail or Secure Messaging to make a bill payment, account inquiry, or funds transfer. There may be other limitations to your use of electronic messaging in effect from time to time. To the extent you elect to communicate with us using E-mail, the following provisions apply to those communications:

You agree and acknowledge that the information communicated via E-mail to or from us may include information regarding any or all of the services that are part of the Service or other Services we feel may be of added interest to you.

 

You acknowledge that you have been advised and understand the risks of using E-mail with respect to the communication of information regarding the Service and that we are unable to guarantee the authenticity, privacy or accuracy of information received or sent by E-mail or to monitor the authorization of persons using your E-mail address to send or receive information.

 

In the event you receive information from us via E-mail that you believe is intended for another recipient, you agree to immediately return the information to us and to thereafter delete the information from your computer system. You shall not use the information for any personal or commercial purposes.

 

You agree that certain information communicated from us to you may be confidential in nature as a communication between you and us. You agree to maintain the confidentiality of the information and to refrain from sharing the information with any other person or entity or from using the information for any purpose that is not related to the Service or your financial relationship with us.

 

In the event that you believe that an unauthorized person has gained access to your computer system, you agree to immediately notify us so that we can cease communication of information to you via E-mail until you and we take measures agreed to jointly to protect your financial information.

 

Having acknowledged the risks associated with communicating financial information via E-mail, you (a) agree that we have no obligation to monitor or investigate the use of your computer system or the source of any communication received from you bearing your email address, (b) release us from any claim or liability arising from or in connection with any communications sent or received using E-mail, and (c) agree to indemnify and hold us harmless from all claims, losses, expenses or liability arising in any way out of or connected in any way with the use of E-mail as contemplated by this Agreement.

 

To the extent any other agreement between you and us requires the delivery of a written notice to a particular address regarding any matter, you agree (a) that these provisions regarding the use of E-mail do not displace or modify any such requirement for a written notice, and (b) to comply with any requirement for a written notice without reference to these provisions regarding the use of E-mail.

 

13. Business Days (Service Hours). Our business days are Monday through Friday, except bank holidays. Payment transactions can be initiated only on business days; however, the Service is available 24 hours a day, seven days a week (with the exception of maintenance periods) for the scheduling, modification, or review of payment transactions and for balance inquiries. If the Transmit Date for a payment falls on a Saturday, Sunday or bank holiday, or if you request us to initiate a payment after 6:45 p.m. (Indiana East Time) on a business day, then the Transmit Date will be rescheduled automatically for the next business day, unless the transaction is a Funds Transfer, Recurring Funds Transfer, Recurring Payment or a Future Payment (see the "Future Dated Transfers", "Recurring Payment" and "Future Payment" paragraphs, above). We may, however, debit your Primary Service Account for the amount of the transaction on the initially scheduled Transmit Date. 

 

14. Transaction Authorization; Protecting Your Password. You authorize us to follow any instructions entered through the Service using your Password notwithstanding any dual or multiple signature requirement identified on the signature card or other documents relating to your Service Account. You agree and intend that the authorization of transactions through the Service shall be considered the same as your written signature in authorizing us to perform any actions relating to the transactions requested. You also agree that use of your Password is the agreed security procedure to access the Service and that such security procedure is commercially reasonable.

You agree to keep your Password confidential, to prevent unauthorized access to the Service Account, and to prevent unauthorized use of the Service. You agree not to give your Password or make it available to any person or entity who is not authorized to access the Service Account for the purpose of performing the transactions contemplated by the Service or who intends or may use the Service for the purpose of accessing and compiling account data for such person's or entity's own commercial gain. You should change your Password frequently. You should avoid using your ATM Card personal identification number (PIN) as your permanent Password.

If your access to the Service is blocked or if you forget your Password, you must contact us at the number identified in the paragraph 23 titled "Errors or Questions." We may issue you a new Password, although it may not be available for use of the Service for several days.  You understand that for security purposes, the Bank may require you to periodically change your password used to access your Service Account.  Additionally, if you fail to access your service account for an extended period, the Bank reserves the right to disable your access to the inactive account at any time. 

 

15. Protecting Your Personal Information. In addition to protecting your Password and other account information, you should also take precautions to protect your personal identification information, such as your driver's license, Social Security Number, etc. This information by itself or together with other account information may allow unauthorized access to your Service Accounts. It is your responsibility to treat personal information with the same level of care as your account information. You also are responsible for protecting and securing all information and data stored on your PC's hard drive.

 

16. Accounts Eligible For Service. We may change from time to time the accounts that may be designated as Service Accounts. We also reserve the right (i) to refuse to include any account among your Service Accounts, or (ii) to allow transactions between or among Service Accounts (and other eligible accounts) under certain circumstances as provided in this Agreement or as may be required by applicable law.

 

17. Your Liability in Case of Loss, Theft or Unauthorized Transactions. You are responsible for all transactions you initiate or authorize using the Service. If you allow any other person to use your Password or the Service, you will have authorized that person to access your Service Accounts and you are responsible for all transactions that person initiates or authorizes in connection with the Service Accounts. Tell us AT ONCE if you believe that your Password has been lost or stolen or that the Service Account has been or may be accessed without your authorization. Telephoning is the best method for limiting your potential losses. You could lose all funds in your Service Accounts plus the maximum amount of any overdraft line of credit.

 

If you believe your Password has been lost or stolen or that someone has transferred or may transfer money from the Service Account without your authorization: 

 

call:	1-800-262-4261
fax to:	1-765-458-7183
	First Merchants Bank Online Banking Attention: Customer Service Center P.O. Box 792 Muncie, Indiana 47308-0792 *(voicemail messages can be left after hours)

 

You agree to take any reasonable actions requested by us to prevent unauthorized transactions to your Service Account.

 

Notwithstanding anything to the contrary in this Agreement, you will be liable for any unauthorized use of the Service in these instances unless otherwise provided by applicable law or written agreement with us.

 

 

THE FOLLOWING PROVISIONS OF THIS SECTION 17 APPLY TO CONSUMER ACCOUNTS ONLY AND DO NOT APPLY TO BUSINESS ACCOUNTS

 

To the extent a transaction is an electronic funds transfer, 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 Password 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 Password or the Service without your authorization if you had told us, you could lose as much as $500.00. Also, if your statement shows a transaction that you did not make or authorize, tell us at once. If you do not tell us within 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.

 

18. Our Liability for Failure to Complete Transactions. We will process and complete all payments and transfers properly initiated through the Service in accordance with this Agreement and any User's Guide. We will not be liable (and any payment guarantee provided elsewhere in this Agreement will not be applicable), in connection with any of the following occurrences:

• a. if, through no fault of ours, you do not have sufficient collected funds in the Service Account to complete the transaction;
• b. if the transaction would exceed the credit limit on any overdraft line of credit linked to the Service Account;
• c. if your PC, Internet service provider, telephone line, modem, or other equipment is not operating properly;
• d. if the Service is not working properly and you were aware of the malfunction when you initiated the transaction;
• e. if you do not properly follow all instructional materials provided in connection with the Service;
• f. if 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;
• g. if you have not provided us with the correct Payee name, address, account information, payment amount, or other instructions necessary to complete the payment, or the foregoing instructions stored on your PC's hard drive or the host system have been lost;
• h. if a Payee mishandles or delays the handling of payments sent by us;
• i. if your funds are held or frozen, or a court order or other legal process prevents us from making a transaction;
• j. if your Password has been reported lost or stolen;
• k. if we have reason to believe that a transaction has not been properly authorized or authenticated, or is fraudulent, erroneous, or illegal;
• l. if you have exceeded the limitations on frequency of transactions or dollar amount of transactions applicable to the Service;
• m. if your telephone service has been disconnected or there are deficiencies in the quality of your telephone line;
• n. if 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;
• o. if making a transfer would cause us to violate any law, rule, or regulation to which we are subject; or
• p. if 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 deposit, loan or other agreements with us, or provided under applicable law. 

 

19. Payment Guarantee. Subject to the limitations set forth in the foregoing paragraph 18, we will reimburse you for any late payment fees or penalties you are required to pay, up to a maximum of $50 per scheduled payment, as a result of the failure of a Payee to receive a payment made through the Service by the Due Date if you meet each of the following conditions:

• a. Sufficient collected funds are on deposit in the Service Accounts to cover the amount of the payment.
• b. You have properly scheduled the Transmit Date so that the payment will be initiated at least five (5) business days (ten (10) business days for the first payment to a Payee) prior to the Due Date. For Same Day Payments, this means that you must enter and submit the payment information through the Service before 6:45 p.m. (Indiana East Time). on a day at least five (5) business days (ten (10) business days for the first payment to a Payee) prior to the Due Date. For Recurring Payments and Future Payments, this means that you must allow additional time for weekends and holidays that may occur in the future and that will reduce the number of business days between the day the payment is initiated and the Due Date. Please refer to those sections addressing Same Day Payments, Future Payments and Recurring Payments for further information.
• c. The Payee must be a business.
• d. The late payment fee or penalty, or the method of its calculation, must be published by the Payee prior to the Due Date.

20. Documentation of Transactions. All of your transactions completed through the Service will appear on your periodic (or, as applicable, electronic) statement. You will receive a periodic statement each month for the Service Account from which or into which a transaction through the Service has been completed during the month. For all other Service Accounts, you will receive a periodic statement at least quarterly or as required by applicable law or the terms of the respective deposit agreements regarding such Service Accounts. The periodic statement will include a description of the transactions completed through the Service. The Payee name, payment amount, and transaction date will be reflected for each payment made through the Service.

 

21. Fees. You agree to pay all fees applicable to the Service. These fees are listed in our schedule of fees and are subject to change from time to time. Without limiting the generality of the foregoing, you agree that we may impose a fee for research requested by you. You authorize us to deduct all fees from your Primary Service Account or, to the extent your Primary Service Account lacks sufficient funds, from any of your other accounts maintained with us. You also acknowledge that these fees are in addition to any costs you incur for the telephone service or Internet service provider you use to access the Service.

 

22. Disclosure of Service Account Information to Third Parties. We will disclose information to third parties about your account or the transfers you make (i) where it is necessary for completing transfers or transactions; (ii) in order to verify the existence and condition of your account for a third party, such as a credit bureau or merchant; (iii) in order to comply with government agency or court orders, (iv) if you give us your written permission, (v) as permitted by law, and (vi) as otherwise set forth in the Privacy Statement. The Privacy Statement describes our policies concerning the sharing of information with third parties and either was provided to you at the time you opened your account or was subsequently furnished to you by mail or electronically. The Privacy Statement is also provided to our customers on an annual basis. However, you may obtain a copy of the Privacy Statement at any time from any of our customer service representatives or by visiting our Web site at www.firstmerchants.com.  You agree to review the Privacy Statement before initiating your first Service transaction under this Agreement, and you agree that your initiation of any Service transaction indicates that you have reviewed and agreed to the terms of the Privacy Statement.

 

23. Errors or Questions. In case of errors or questions about your electronic funds transactions through the Service, you should, as soon as possible:

call:	1-800-262-4261
fax to:	1-765-751-1897
write to:	First Merchants Online Banking Attention: Customer Service Center P.O. Box 792 Muncie, Indiana 47308-0792

 

THE FOLLOWING PROVISIONS OF THIS SECTION 23 APPLY TO CONSUMER ACCOUNTS ONLY AND DO NOT APPLY TO BUSINESS ACCOUNTS

 

If you think that your statement is wrong or you need more information about a transaction listed on your statement or appearing on the account activity screen of your PC, we must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared or you received notification of the problem or error on your PC.

• a. Tell us your name and the Service Account number.
• b. 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.
• c. Tell us the dollar amount of the suspected error.

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

 

We will tell you the results within three (3) business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.

 

24. Verification. You authorize us to investigate or reinvestigate at any time any information provided by you in connection with your application for the Service or the Service Account, and to request reports from credit bureaus and consumer reporting agencies for such purpose. You also agree that we may obtain information regarding your Payee account in order to facilitate proper handling and crediting of your payments.

 

25. Termination. You may terminate your use of the Service at any time by calling or writing us as provided in the paragraph 23 titled "Errors or Questions." You must notify us at least ten (10) business days prior to the date on which you wish to have the Service terminated. We may require that you put your request in writing. If you have scheduled transactions with a Transmit Date within this ten-day period, you also must separately cancel those transactions. If we have not completed processing your termination request and you have not otherwise canceled a transaction, you will be responsible for transactions with transaction dates during the ten (10) business days following our receipt of your notice of termination. We may terminate your use of the Service, in whole or in part, at any time without prior notice. If you would like to (a) transfer the Service to a different account with us, or (b) add or remove an account with respect to the Service, you must provide ten (10) business days advance written notice. Termination will not affect your liability or obligations under this Agreement accruing prior to the date of termination. 

 

26. Exclusion of Warranties; Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OR EXCEPT AS REQUIRED BY APPLICABLE LAW, WE MAKE NO WARRANTY, EITHER EXPRESS OR IMPLIED, TO YOU REGARDING THE SERVICE OR ANY ASPECT THEREOF, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR BY APPLICABLE LAW, YOU AGREE THAT NEITHER WE NOR OUR SERVICE PROVIDERS SHALL BE RESPONSIBLE FOR ANY LOSS, INJURY, OR DAMAGE, WHETHER CAUSED BY THE OPERATION OF EQUIPMENT (WHETHER OWNED BY YOU OR US OR ANY OF OUR SERVICE PROVIDERS), THE SERVICE, THE FINANCIAL SOFTWARE, OR US, AND IN NO EVENT SHALL WE OR OUR SERVICE PROVIDERS BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) CAUSED BY THE SERVICE OR THE USE THEREOF, OR ARISING IN ANY WAY OUT OF THE INSTALLATION, USE OR MAINTENANCE OF THE FINANCIAL SOFTWARE, EQUIPMENT OR THE SERVICE, EVEN IF WE OR OUR SERVICE PROVIDERS HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

27. Overdraft. You agree not to use or attempt to use the Service to overdraw any Service Account, to exceed your limit on any credit account, or to engage in any transaction that is not specifically authorized and permitted. Such use or attempted use may result in the immediate cancellation of the Service and the Service Accounts, and may expose you to possible legal action. We may honor instructions to initiate transactions on the same business day (whether received through the Service, ATM or point-of-sale (POS) terminals, checks or other means) in any order we determine, even if honoring a particular item or instruction results in an insufficient balance in the Service Account to honor other instructions that otherwise could have been honored. If there are insufficient funds in the Service Account to complete the transaction you have initiated, we either may refuse to honor the request or complete the transaction and thereby overdraw the Service Account. In either event, you are responsible for any insufficient funds or overdraft charges that we may impose.

 

28. Statements of Representatives. If there is a conflict between what one of our representatives says and the terms of this Agreement, the terms of this Agreement will prevail.

 

29. Arbitration and Waiver of Jury Trial. All unresolvable disputes or claims pertaining to the Service, a Service Account or the relationships that arise there from, whether based in contract, tort or otherwise, shall be resolved by binding arbitration under the expedited procedures of the Commercial Financial Disputes Arbitration Rules of the American Arbitration Association (AAA) and the Federal Arbitration Act in Title 9 of the US Code. Arbitration hearings will be held in the city where your account was established or where mutually agreed. A single arbitrator will be appointed by the AAA and will be an attorney or a retired judge with experience and knowledge in banking transactions. Any issue concerning whether or the extent to which a dispute or claim is subject to arbitration, including but not limited to issues relating to the validity or enforceability of these arbitration provisions, shall be determined by the arbitrator. All statues of limitations or other defenses relating to the timeliness of the assertion of a dispute or claim that otherwise would be applicable to an action brought in a court of law shall be applicable in any such arbitration, and the commencement of an arbitration under this Agreement shall be deemed the commencement of an action for such purposes. No provision of this paragraph shall restrict the ability of any person to exercise all rights and remedies available under applicable law or this Agreement; provided, however, that the exercise of those rights or remedies is subject to the right of any other person to demand arbitration as provided herein. The commencement of legal action by a person entitled to demand arbitration does not waive the right of that person to demand arbitration with respect to any counterclaim or other claim. No person entitled to demand arbitration hereunder shall be permitted to assert a dispute or claim that is on behalf of any other person. Similarly, an arbitration proceeding under this Agreement may not be consolidated with other arbitrations proceedings. Judgment upon the award rendered in arbitration shall be final and may be entered in any court, state or federal, having jurisdiction. IF A DISPUTE OR CLAIM IS NOT SUBJECT TO ARBITRATION FOR ANY REASON, THEN THE DISPUTE OR CLAIM SHALL BE DECIDED IN A COURT OF COMPETENT JURISDICTION WITHOUT A JURY. YOU AND WE IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY.

 

30. Other Agreements. You agree to use the Service according to any User's Guide and any other instructional materials provided to you (including on-screen help). You will be bound by these instructional materials, together with all agreements controlling the use of the Service or relating to any accounts accessed through the Service (such as your deposit agreement with us). To the extent any provision of this Agreement conflicts with such other agreements or instructional materials, the provision herein shall control; otherwise, the provision supplements but does not displace such other agreements and instructional materials.

 

31. No Unilateral Alterations to This Agreement or Any Enrollment Form by You. Neither this Agreement nor any enrollment form may in any way be altered by you without our express written agreement. Any attempt by you to alter either this Agreement or any enrollment form without our express written agreement shall be void and shall have no legal effect. You hereby agree to indemnify and hold us harmless from and against any and all claims, losses, liabilities, penalties, expenses and punitive and other damages (including without limitation reasonable attorneys' fees) directly or indirectly resulting from, relating to or arising in connection with any successful or unsuccessful attempt by you to alter either this Agreement or any enrollment form without our express written agreement.

 

32. Waivers. No delay or omission by us in exercising any rights or remedies under this Agreement or applicable law shall impair such right or remedy or be construed as a waiver of any such right or remedy. Any single or partial exercise of a right or remedy shall not preclude further exercise of that right or remedy or the exercise of any other right or remedy. No waiver shall be valid unless in writing signed by us. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.

 

33. Assignment. You may not assign this Agreement or any of your rights or responsibilities under this Agreement to any other party. We may assign this Agreement or any or all of our rights and/or responsibilities hereunder, or delegate any or all of such rights and responsibilities to any third party or parties.

 

34. Data Recording. When you use the Service, the transaction or other information you enter may be recorded. By using the Service, you consent to such recording.

 

35. Change of Terms; Electronic Disclosures. This Agreement and all other agreements and disclosures relating to your use of the Service may be changed or amended from time to time, but we will provide you with advance notice of such changes or amendments to the extent required by applicable law. You agree that we may send change of terms notices to you, as well as any disclosures required by applicable law (including, without limitation, the Electronic Fund Transfer Act, as amended (15 U.S.C. 1693 et seq.), Federal Reserve Regulation E, as amended (12 C.F.R. 205)) via electronic messaging, and you will be deemed to have received such notices or disclosures three days after they are sent, whether or not you have retrieved them by that time. If you do not agree to any change or amendment, you must discontinue use of the Service to which the change or amendment relates, or cancel your access to the Service. By using the Service after any change or amendment, you agree to that change or amendment.

 

36. New Services. We may introduce new services from time to time that are available through the Financial Software. By using these new services after they become available, you agree to be bound by all terms and conditions applicable thereto.

 

37. Applicable Law. Regardless of where you live or work or where you access the Service, this Agreement, any enrollment form, and your deposit relationship with us will be governed by the substantive laws (excluding laws of conflict) and regulations of the United States and the State of Indiana, including without limitation, the Indiana Uniform Commercial Code.

 

38. Venue. Any proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the state in which the branch where your Service Account was established is located.

 

39. Area of Service. The Service and any application for deposit or other services at our Web site are solely offered to the citizens and residents of the United States of America (USA) and may not be accessed while outside the USA.

 

40. Construction of Defined Terms. As appropriate, the singular number shall include the plural and the plural shall include the singular.

 

41. Headings. The headings used in this Agreement are for convenience only and shall not be held to limit or affect the terms of this Agreement.

 

42. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable.

 

 

SCHEDULE OF FEES*
Online Banking Service (Consumer)
Fees**:
Free		Basic Online Banking only
Free		Basic Online Banking with Bill Payment - Unlimited online sessions and bill payments.
Online Banking Service (Business)
Fees**:
Free		Bronze Online Banking for Business - Unlimited online banking sessions including features listed below.
		Account Alias Sort & search DDA history Build templates View account balances (real time)    (loan & deposit) DDA history Loan history Check Copy Request Statement Copy Request Internal transfers (real time) Loan payments (real time) Schedule Transactions Order Checks Customer manages Users Check Imaging (60 day history) Statement image (txt format)
$15.95		Silver Online Banking for Business - Bronze features listed below.
		Quicken/Quickbooks download Send Files Stop Payment Bill Payment
$20.95		Gold Online Banking for Business - Silver features listed below.
		Tax Payments Wire Transfer ACH - debit and credit
$25.95		Platinum Online Banking for Business - Gold Multiple Logins.

 

*		These fees are in addition to fees and charges you may incur with respect to your deposit accounts with us, as set forth in our deposit account Service Charge Schedule.  These fees are subject to change from time to time.
**		Monthly fees are waived for the first month of service for Business Online Banking Service.