First Merchants Bank Mobile Banking Addendum to
First Merchants Bank Online Banking Service Agreement
(Effective November 2014)
I. ACCEPTANCE OF ADDENDUM.
A. Accepting this Addendum. By clicking "Agree" when you enroll for mobile banking services (“Mobile Banking”), you agree to the terms and conditions of this Addendum. Additionally, by installing the software necessary to utilize Mobile Banking (the "Software") and using Mobile Banking, you also agree to be bound by this Addendum. This Addendum supplements First Merchants Bank’s Online Banking Service Agreement (www.firstmerchants.com/terms_and_conditions/online_banking), which you have already agreed to.
B. Description of Mobile Banking. Mobile Banking is a financial information management service that allows you to access your First Merchants Bank account information, make payments to payees, make mobile deposits, and make such other banking transactions as are described on our website (currently, www.firstmerchants.com/personal/online_and_mobile/mobile_banking). To utilize the Mobile Banking, you may be required to install the Software on your compatible and supported mobile phone and/or other wireless device (each, a "Wireless Device"). Once you have enrolled for Mobile Banking through our online banking service entitled "Online Banking" and installed any required Software, designated accounts linked to your Login ID will be accessible through your Wireless Device. We reserve the right to modify the scope of Mobile Banking at any time. The most up-to-date list of services offered by Mobile Banking is posted on the Mobile Banking website at www.firstmerchants.com/personal/online_and_mobile/mobile_banking. We reserve the right to refuse to make any transaction you request through Mobile Banking. You agree and understand that Mobile Banking may not be accessible or may have limited utility over some wireless networks.
C. Use of Mobile Banking. In order to properly use Mobile Banking, you should review and follow the instructions provided on our website. You agree to accept responsibility for learning how to use Mobile Banking in accordance with the online instructions and agree that you will contact us directly if you have any problems with Mobile Banking. You also accept responsibility for making sure that you know how to properly use your Wireless Device and the Software. We may modify Mobile Banking from time to time in our sole discretion. In the event of any modifications, you are responsible for making sure you that you understand how to use Mobile Banking as modified. We will not be liable to you for any losses caused by your failure to properly use the Mobile Banking or your Wireless Device.
D. Relationship to Other Agreements. You agree that, when you use Mobile Banking, you remain subject to the terms and conditions of your existing agreements with any unaffiliated service providers, including, but not limited to, your mobile service provider (i.e., AT&T, Verizon, etc.), and that this Addendum does not amend or supersede any of those agreements. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of Mobile Banking (such as data usage or text messaging charges imposed on you by your mobile service provider for your use of or interaction with Mobile Banking, which may include downloading the Software, receiving or sending Mobile Banking text messages, or other use of your Wireless Device when using the Software or other products and services provided by Mobile Banking), and you agree to be solely responsible for all such fees, limitations and restrictions. You agree that only your mobile service provider is responsible for its products and services. Accordingly, you agree to resolve any problems with your provider directly without involving us.
II. MOBILE BANKING SOFTWARE LICENSE AGREEMENT.
Subject to your compliance with this Addendum, you are hereby granted a personal, limited, non-transferable, non-exclusive, non-sub licensable and non-assignable license (the "License") to assess, download, install and use the Software on your Wireless Device within the United States and its territories. In the event that you obtain a different Wireless Device, you may be required to download and install the Software to that different Wireless Device. This License shall be deemed revoked immediately upon (i) your cancellation of Mobile Banking in accordance with Section V.B of this Addendum; (ii) termination of your "Online Banking" services under the Terms; (iii) your deletion of the Software from your Wireless Device; or (iv) our written notice to you at any time, with or without cause. You agree to promptly delete the Software from your Wireless Device if this License is revoked for any reason. The provisions of Sections III, IV, and V of this Addendum shall survive revocation of the License.
III. MOBILE DEPOSIT TERMS AND CONDITIONS.
A. Mobile Deposit Services. Mobile deposit services ("Mobile Deposit") permit you to make deposits to your FMB accounts by converting checks into images and delivering the images and associated deposit information to FMB or FMB’s designated processor via a mobile device.
B. Mobile Deposit Limitations. You may experience technical or other difficulties when using Mobile Deposit. FMB disclaims responsibility for any technical or other difficulties or any resulting damages that you may incur. We reserve the right to change, suspend or discontinue Mobile Deposit, in whole or in part, or your use of Mobile Deposit, in whole or in part, immediately and at any time without prior notice to you.
C. Compatible Mobile Device. In order to use Mobile Deposit, you must obtain and maintain, at your expense, compatible mobile device as specified by FMB from time to time. FMB is not responsible for any third party software you may need to use Mobile Deposit. Any such software is accepted by you as is and is subject to the terms and conditions of the software agreement you enter into directly with the third party software provider at time of download and installation.
D. Fees. A fee may be charged for Mobile Deposit. You are responsible for paying the fees for the use of Mobile Deposit. Any fee that is charged will be disclosed prior to your deposit. FMB may change the fees for use of Mobile Deposit at any time. You authorize FMB to deduct any such fees from any FMB account in your name.
E. Eligible items. You agree to scan and deposit only "checks" as that term is defined in Federal Reserve Regulation CC ("Reg. CC"). When the image of the check transmitted to FMB is converted to an Image Replacement Document for subsequent presentment and collection, it shall thereafter be deemed an "item" within the meaning of Articles 3 and 4 of the Uniform Commercial Code.
You agree that you will not scan and deposit any of the following types of checks or other items which shall be considered ineligible items:
F. Endorsements and Procedures. You agree to restrictively endorse any item transmitted through Mobile Deposit with your signature and the words "For Mobile Deposit Only” or as otherwise instructed by FMB. You agree to follow any and all other procedures and instructions for use of Mobile Deposit as FMB may establish from time to time.
G. Receipt of Items. We reserve the right to reject any item transmitted through Mobile Deposit, at our discretion, without liability to you. We are not responsible for items we do not receive or for images that are dropped during transmission. An image of an item shall be deemed received when you receive a confirmation from FMB that we have received the image. Receipt of such confirmation does not mean that the transmission was error free, complete or will be considered a deposit and credited to your account. We further reserve the right to charge back to your account at any time, any item that we subsequently determine was not an eligible item. You agree that the FMB is not liable for any loss, costs, or fees you may incur as a result of our chargeback of an ineligible item.
H. Availability of Funds. You agree that items transmitted using Mobile Deposit are not subject to the funds availability requirements of Federal Reserve Board Regulation CC. In general, if an image of an item you transmit through Mobile Deposit is received and accepted before 6:00 p.m. Eastern Time on a business day that we are open, we consider that day to be the day of your deposit. Otherwise, we will consider that the deposit was made on the next business day we are open. Funds deposited using Mobile Deposit will generally be made available the business day following the day the deposit was considered made. FMB may delay funds availability based on such other factors as FMB, in its sole discretion, deems relevant.
I. Disposal of Transmitted Items. Upon your receipt of a confirmation from FMB that we have received an image that you have transmitted, you agree to retain the check for 7 calendar days from the date of the image transmission. After 7 days, you agree to destroy the check that you transmitted as an image, mark it "VOID", or otherwise render it incapable of further transmission, deposit, or presentment. During the time the retained check is available, you agree to promptly provide it to FMB upon request.
J. Deposit Limits. We may establish limits on the dollar amount and/or number of items or deposits from time to time. If you attempt to initiate a deposit in excess of these limits, we may reject your deposit. If we permit you to make a deposit in excess of these limits, such deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a deposit at other times. The current daily dollar limit is $1,500.00 per business day.
K. Presentment. The manner in which the items are cleared, presented for payment, and collected shall be in FMB’s sole discretion subject to the other agreements governing your account.
L. Errors. You agree to notify FMB of any suspected errors regarding items deposited through Mobile Deposit right away, and in no event later than 30 days after the applicable FMB account statement is sent. Unless you notify FMB within 30 days, such statement regarding all deposits made through Mobile Deposit shall be deemed correct, and you are prohibited from bringing a claim against FMB for such alleged error.
M. Errors in Transmission. By using Mobile Deposit you accept the risk that an item may be intercepted or misdirected during transmission. FMB bears no liability to you or others for any such intercepted or misdirected items or information disclosed through such errors.
N. Image Quality. The image of an item transmitted to FMB using Mobile Deposit must be legible, as determined in the sole discretion of FMB. Without limiting the foregoing, the image quality of the items must comply with the requirements established from time to time by FMB, the Board of Governors of the Federal Reserve Board, or any other regulatory agency, clearinghouse or association.
O. User Warranties and Indemnification. You warrant to FMB that:
P. Geolocation; Cooperation with Investigations. We reserve the right to capture your geolocation from your mobile device for fraud prevention purposes. You agree to cooperate with us in the investigation of unusual transactions, poor quality transmissions, and resolution of customer claims, including by providing, upon request and without further cost, any originals or copies of items deposited through Mobile Deposit in your possession and your records relating to such items and transmissions.
Q. Termination. We may terminate your access to Mobile Deposit and these Terms and Conditions at any time and for any reason. This Agreement shall remain in full force and effect unless and until it is terminated by us. Without limiting the foregoing, your access to Mobile Deposit may be terminated if you breach these Terms and Conditions, if you use Mobile Deposit for any unauthorized or illegal purposes or you use Mobile Deposit in a manner inconsistent with the terms of the Online Banking Service Agreement, the Mobile Banking Addendum, and agreements applicable to your FMB. Any breach of these Terms and Conditions immediately terminates your right to use Mobile Deposit and you shall cease use of Mobile Deposit.
R. 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.
IV. YOUR OBLIGATIONS.
You represent and agree to the following by enrolling for Mobile Banking, installing the Software or by using Mobile Banking:
A. Account Ownership/Accurate Information. You represent that you are the legal owner of the accounts (or authorized representative of the owner of the accounts) and other financial information which may be accessed via Mobile Banking. You represent and agree that all information you provide to us in connection with Mobile Banking is accurate, current and complete, and that you have the right to provide such information to us for the purpose of using Mobile Banking. You agree not to misrepresent your identity or your account information. You agree to keep your account information up to date and accurate. You represent that you are an authorized user of the Wireless Device you will use to access Mobile Banking, and that you are authorized to download and install the Software on your Wireless Device.
B. User Security. You agree not to give or make available your Mobile Banking Personal Identification Number (the "PIN") or other means to access your account to any unauthorized individuals. You are responsible for all bill payments, transfers or other transactions you authorize using Mobile Banking. If you permit other persons to use your Wireless Device and PIN or other means to access Mobile Banking, you are responsible for any transactions they authorize. If you believe that your PIN, Wireless Device or other means to access your account has been lost or stolen or that someone may attempt to use Mobile Banking without your consent, or has transferred money without your permission, you must notify us promptly either through the First Merchants Bank Online Banking, or by calling 800-205-3464
C. User Conduct. You agree not to use Mobile Banking or the content or information delivered through Mobile Banking in any way that would: (a) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, including any rights in the Software; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of Mobile Banking to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) potentially be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt computer networks connected to Mobile Banking; (i) interfere with or disrupt the use of Mobile Banking by any other user; or (j) use Mobile Banking in such a manner as to gain unauthorized entry or access to the computer systems of others.
D. No Commercial Use or Re-Sale. You agree that your use of Mobile Banking is only for the personal or business use of individuals authorized to access your First Merchants Bank account information. You agree not to make any commercial use of Mobile Banking or resell, lease, rent or distribute access to Mobile Banking.
E. Proprietary Rights. You are permitted to use content delivered to you through Mobile Banking only on Mobile Banking. You may not copy, reproduce, distribute or create derivative works from this content. Further, you agree not to reverse engineer or reverse compile any Mobile Banking technology, including, but not limited to, any Software or other Wireless Device applications associated with Mobile Banking.
F. Indemnification. Unless caused by our intentional misconduct or gross negligence, you agree to indemnify, defend and hold harmless us and our affiliates and service providers from any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) caused by or arising from your use of Mobile Banking or the Software, your violation of this Addendum, your breach of any warranty, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.
V. CHARGES FOR MOBILE BANKING.
You agree to pay for Mobile Banking in accordance with our fee schedule, as amended by us from time to time.* You authorize us to automatically charge your account for all such fees incurred in connection with Mobile Banking. We may add to or enhance the features of Mobile Banking from time to time. By using such added or enhanced features, you agree to pay for them in accordance with the fee schedule.
VI. ADDITIONAL PROVISIONS.
A. Mobile Banking Limitations.
i. The availability, timeliness and proper functioning of Mobile Banking depends on many factors, including your Wireless Device location, wireless network availability and signal strength, and the proper functioning and configuration of hardware, software and your Wireless Device. Neither we nor any of our service providers warrants that Mobile Banking or the Software will meet your requirements, operate without interruption or be error-free, and neither we nor our service providers shall be liable for any loss or damage caused by any unavailability or improper functioning of Mobile Banking, or for any actions taken in reliance thereon, for any reason, including service interruptions, inaccuracies, delays, loss of data, or loss of personalized settings.
ii. Neither we nor any of our service providers assumes responsibility for the operation, security, functionality or availability of any Wireless Device or mobile network which you utilize to access Mobile Banking.
iii. MOBILE BANKING AND SOFTWARE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY OTHER WARRANTY AS TO PERFORMANCE, ACCURACY OR COMPLETENESS.
iv. You agree to exercise caution when utilizing Mobile Banking on your Wireless Device and to use good judgment and discretion when obtaining or transmitting information.
v. Neither we nor our service providers are liable for failures to perform our obligations under this Addendum resulting from fire, earthquake, flood or any failure or delay of any transportation, power, computer or communications system or any other or similar cause beyond our control.
B. Changes or Cancellation. You may cancel your participation in Mobile Banking at any time either through First Merchants Bank Online Banking, or by calling 800-205-3464. We reserve the right to change or cancel Mobile Banking at any time without notice. We may also suspend your access to Mobile Banking at any time without notice and for any reason, including, but not limited to, your non-use of Mobile Banking. You agree that we will not be liable to you or any third party for any change or cancellation of Mobile Banking.
C. Third Party Beneficiary. You agree that our service providers (including any provider of Software) may rely upon your agreements and representations in Sections III, IV and V of this Addendum, and such service providers are, for the purposes of these sections, intended third party beneficiaries to this Addendum, with the power to enforce these provisions against you, as applicable.
D. Amendment. This Addendum is subject to change from time to time. We will notify you of any material change via e-mail, text message, or on our website(s) by providing a link to the revised terms and conditions or by an online secure message. Your continued use of Mobile Deposits will indicate your consent to be bound by the revised terms and conditions. Further, FMB reserves the right, in its sole discretion, to change, modify, add, or remove portions from Mobile Banking. Your continued use of Mobile Banking will indicate your acceptance of any such changes to this Addendum.
E. DISCLAIMER OF WARRANTIES. YOU AGREE YOUR USE OF MOBILE BANKING AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF MOBILE BANKING, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT MOBILE BANKING (i) WILL MEET YOUR REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM MOBILE BANKIN WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN MOBILE BANKING OR TECHNOLOGY WILL BE CORRECTED.
F. LIMITATION OF LIABILITY. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES RESULTING FROM THE USE OR THE INABILITY TO USE MOBILE BANKING INCURRED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE USE OF, INABILITY TO USE, OR THE TERMINATION OF THE USE OF MOBILE BANKING, REGARDLESS OF THE FORM OF ACTION OR CLAIM (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF FMB HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.
*First Merchants Bank Mobile Banking is provided at no charge to checking, savings or money market account holders with active accounts. Your wireless carrier may assess you fees for data services. Please consult your wireless plan or provider for details.