We may accept items payable to any of you for deposit to your account from any source without questioning the authority of the person making the deposit. We also may give cash back to any authorized account signer(s) or agent(s) in connection with items payable to any owner, whether or not the items have been endorsed by the owner. If you make a deposit or payment that is not accompanied by instructions indicating how or where it is to be credited, we may apply it at our discretion to any loan or deposit account any of you maintains with us. If you deposit funds belonging to third parties in an analyzed account, you represent that your use of any related earnings credit will not violate any law, regulation, obligation, or agreement with such parties.
We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. They will generally be available no later than the seventh banking day after the day of your deposit.
In addition to the limitations set forth below and in the “Withdrawal” and “Electronic Fund Transfers” sections, cash withdrawals or payments at any branch may be restricted due to the limited amount of currency on hand. If we do not have sufficient cash for a large withdrawal or payment, we may make arrangements for a later cash payment or offer to make payment with a Bank check. We assume no responsibility to provide personal protection for customers who elect to carry large sums of money while at or departing our premises.
Money Market and Savings Accounts
Transactions involving these accounts are limited by law. You may only make up to six withdrawals and/or transfers each monthly statement cycle by check (for accounts with check privileges), preauthorized or automatic transfer (e.g., automatic payments to an insurance company), draft, point-of-sale debit card and/or telephone and/or electronic banking. If you exceed these limitations, we may refuse to honor the excessive transactions, remove your transfer privileges, close the account without prior notice, convert it to another type of account, and/or impose a fee for exceeding the limits (See the applicable Fee Schedule). Note: We count checks for purposes of the transaction limitation as of the date we post them to your account (not as of the date you write them). For that reason, a check you write during one statement period may not be counted until a subsequent statement period. We may refuse or limit telephone and mail withdrawals, at our discretion. The law does not limit the number of withdrawals you can make in person at a branch or at an ATM. Nor is there any limit on the number of deposits that can be made to your account each month (e.g., in person or by preauthorized or automatic transfer).
Our rate and fee schedules describe the most frequently encountered fees associated with our accounts and services. Some services are negotiated separately and may be subject to other written agreements with us. Information on fees for services not covered by the schedules is available upon request. In addition to fees, you agree to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with your account or account-related services (excluding any income tax payable by us). Certain fees may change without specific notice to you. Account owners must promptly pay the fees and charges associated with their accounts and services, and are jointly and severally liable for such fees. We may deduct account fees automatically from your accounts. Monthly service charges are earned the first day of the statement period and collected on the last day of the statement period or the date the account is closed. Service charges are not prorated for partial months.
BUSINESS ACCOUNT ANALYSIS
Our business account analysis service (“Service”) allows you to offset certain service charges with an earnings credit that is based on the balances that you maintain with us. We analyze only the accounts and the services that are linked to our account analysis system (Note: not all accounts or charges may be analyzed). We calculate an “Earnings Credit” based on the funds in your analyzed accounts and apply that credit as an offset against service charges. We do not calculate an Earnings Credit for accounts that are not linked to the Service or allow Earnings Credit to offset charges against unanalyzed accounts.
We determine an account’s Earnings Credit by multiplying its adjusted average ledger balance by an Earnings Credit Rate (which may change from time to time). We arrive at the adjusted average ledger balance each month by: (a) reducing the ledger balance of any analyzed checking account by 10%; (b) adding together the ending ledger balances of the account for each day of the month, (c) subtracting float, based on our most current availability schedule, (d) subtracting the amount of any associated Deposit Balance Fee, and (e) dividing the result by the number of days in the month. Note: checks and other items may be subtracted from your daily balance on the date they are presented to us electronically or otherwise, even though final acceptance may not occur until later. The Deposit Balance Fee is based on the amount of the ledger balances of your analyzed accounts. Although the fee is based, in part, on the cost of FDIC premiums, it may be higher or lower than our actual FDIC premium since it is not tied to the same assessment base, may change at a different time than premium assessments, and may not reflect any FDIC rebate, credit or exception. The fee is subject to change without notice. Current fee information is available from your account officer.
Use of Earnings Credit
Unlike interest, Earnings Credit is not paid to you and does not accumulate. Earnings Credit may only be used to offset charges that are subject to analysis and that are incurred during the month covered by analysis. Unless we agree otherwise in writing, excess Earnings Credit is not carried forward or backward to other billing periods. If Earnings Credit is insufficient to cover service charges during any period, we may charge the difference to your account. If you have several analyzed accounts, you can designate which account should be charged. We may stop calculating Earnings Credit and applying it against service charges for any analyzed account that becomes inactive (i.e., has no deposits or withdrawals for 12 months). Your Account Officer can give you an estimate of the balances that may be needed to compensate for the type and volume of services that you use. The actual amount may vary, however, due to changes in the earnings credit rate, service charges, the services used, or other aspects of analysis.
Earnings Credit Rate/Service Charges
Account analysis charges and the Earnings Credit Rate are subject to change from time to time without prior notice. Current rate and service charge information is available from your Account Officer.
The analysis system may not always change simultaneously with changes in compensating balances, Deposit Balance Fees, reserves or other factors. We reserve the right to input changes in our system as of the beginning or end of any statement or analysis cycle. As a result, some changes input at the end of a cycle may relate back to the entire cycle.
Third Party Funds
If you deposit funds that belong to others (“beneficial owners”) in an analyzed account, you represent to us that: (a) you are authorized by the beneficial owners to benefit from the use of any associated Earnings Credit, and (b) your use of the Earnings Credit will not violate any contract, law or regulation. You also agree to indemnify, defend and hold us harmless from and against any and all claims, actions, proceedings, losses, costs (including attorney fees and other charges), liabilities and/or damages that arise from your use of the Service or the manner in which you compensate or charge beneficial owners for your use of our services. This provision shall survive the termination of this Agreement.
Limitation of Liability
We will not be liable under any circumstances for special, indirect or consequential damages related to our Service actions or omissions. In no event will our liability exceed the amount of any Earnings Credit which we fail to apply against a service charge. You agree to review account notices and statements immediately upon receipt and to send us a written notice of any problem within a reasonable time (not to exceed 14 days from the date you receive the first notice or statement reflecting the problem). This provision shall survive the termination of this Agreement.
ELECTRONIC FUND TRANSFERS
The following terms apply to electronic fund transfers governed by the Electronic Fund Transfer Act (e.g., consumer ATM, point-of-sale, telephone and internet banking and ACH transfers). They also apply to ATM and debit card services made available to businesses and other non-personal accounts. Any authorized signer on an account may apply for electronic fund transfer services on behalf of all authorized signers. Once an electronic fund transfer service is established, any authorized signer on your account may act alone in conducting or canceling electronic fund transactions, regardless of the number of required signers indicated on the account’s signature card or separate agreement.
Automated Teller Machine and Debit Cards (“Cards”)
You can perform the following transactions with a Card, depending on the accounts and services associated with your Card:
• Withdraw cash from your checking or savings account;
• Make deposits to your checking or savings account at one of our ATMs;
• Transfer funds between your checking and savings accounts;
• Pay for purchases at places that honor our Card; and
• Obtain account balance information (may not reflect recent transactions, and may include funds that are not available for immediate withdrawal).
Some of these services may not be available at all terminals, and all deposits and payments are subject to later verification by us. If you have more than one account linked to your Card, you may designate the account for a withdrawal transaction. If you want to designate a different account for withdrawal transactions, contact a Financial Services Representative at any of our branches. You should note that point-of-sale payments cannot be made to merchants from savings accounts or money market accounts. Your Card cannot be used to transfer money into or out of your account without a personal identification number (“PIN”) at ATMs and most point of sale (POS) terminals. You may be asked to sign a sales slip or provide identification, rather than enter your PIN, for certain Card transactions. At some merchants, such as gas stations, you may not be required to sign your name or enter your PIN for a Card purchase. You can select your own PIN at any of our offices or call our automated voice system at 1-800-760-2265. If you forget your PIN, please visit one of our branches and request another one. If you decide you do not want to use your Card, destroy it at once by cutting it in half and notify us in writing.
We do not guarantee your safety while using the ATM. You agree to exercise caution when using ATMs. If there are any suspicious circumstances, do not use the ATM. If you notice anything suspicious while transacting business at the ATM, cancel the transaction, pocket your Card and leave. Be careful when using the ATM and be aware of the surroundings, especially at night or in isolated areas. Park near the ATM in a well-lighted area. At night have someone accompany you when possible. Do not approach the ATM if the lighting is not working. Do not accept assistance from anyone while using the ATM. Do not display your cash: pocket it and count it later in the safety of your office or home. Be sure to save your transaction slips. Check them against your statements regularly. Prepare deposits at home to minimize your time at the ATM. Always secure your Card just like you would your cash, checks and credit cards. Report all crimes to the ATM operator and local law enforcement officials immediately.
Card and PIN Security
You agree not to disclose or otherwise make your Card or PIN available to others without our prior written consent. For security reasons, you agree not to write your PIN on your Card or keep it in the same location as your Card. Your Cards must be returned to us upon request. To reduce the potential for fraud on your account, First Bank may review transactions performed with your Card for potential irregularities in your normal spending habits. These may include times when your Card is used more often or if we see a geographic shift in where your Card is being used. As a best practice, we recommend that you contact us if you know you are going to be traveling. We reserve the right to restrict your Card from use at any time.
If you conduct a transaction at an ATM that is not operated by us, the operator of the ATM or any network utilized to effect the transaction may impose a fee and you may be charged a fee for a balance inquiry, even if you do not complete a funds transfer.
Point-of-Sale (“POS”) Purchases/Holds
You may use your Card to pay for goods and services at retail locations displaying the symbols of the networks in which we participate. We will charge the amount of your purchases to the account designated for the POS service. If your Card is linked to a savings and a checking account, the checking account will be charged. Transactions with certain merchants may be restricted. When you use your Card to pay for goods or services, certain merchants may ask us to authorize the transaction in advance and may estimate its final value. When we authorize the transaction, we commit to make the requested funds available when the transaction finally settles and may place a temporary hold on your account for the amount indicated by the merchant. We also may add an amount for certain merchants to ensure that sufficient funds will be available to cover the ultimate transaction. Until the transaction finally settles or we determine that it is unlikely to be processed, the funds subject to the hold will not be available to you for other purposes. We will only charge your account for the correct amount of the final transaction, however, and we will release any excess amount when the transaction finally settles.
Refunds on Purchases
Cash refunds will not be made to you for purchases made with your Card. If a merchant gives you a credit for merchandise returns or adjustments, it may do so by processing a credit adjustment, which we will apply as a credit to your account.
If you conduct a transaction in a currency other than U.S. Dollars, the merchant, network or Card association that processes the transaction may convert any related debit or credit into U.S. Dollars in accordance with its then current policies. As of the date of this account agreement, MasterCard uses a conversion rate that is either: (a) selected from a range of rates available in the wholesale currency markets (note: this rate may be different from the rate the association itself receives), or (b) the government-mandated rate. The conversion rate may be different from the rate in effect on the date of your transaction and the date it is posted to your account. We will impose a charge equal to 1% of the transaction amount (including credits and reversals) for each transaction (U.S. or foreign currency) that you conduct outside the 50 United States or Washington, D.C. Transactions may be restricted in certain countries.
Your Card has a daily maximum limitation in the amount of cash you can obtain and the amount of purchases you can conduct at merchant locations. These limits vary based upon the type of Card that you have. Please visit your nearest First Bank location or contact us at 1-800-760-2265 for information on your transaction limitations.
Pre-authorized electronic fund transfers may be made to or from First Bank checking and savings accounts, including preauthorized electronic fund transfers made to your account from a third party (e.g., Social Security, a pension fund or your employer) or from your account to a third party (e.g., checks converted to electronic automated clearing house (“ACH”) transactions, and recurring mortgage or insurance payments through the ACH). Pre-authorized transfers do not include: (a) transactions initiated by check, draft or similar paper instrument, (b) transfers to or from business or other non-personal accounts, (c) individual transfers we initiate under an agreement with you, but without your specific request (e.g., automatic savings and automatic loan payments to us from your account), or (d) transfers initiated by telephone. Please note: If Federal recurring or other electronic payments are made into your account, the payments may be affected by a change in account status or transfer (e.g., to another office). If you plan to transfer your account or change its status, please speak with us in advance about the impact the change may have on your electronic fund transfer services.
Telephone Transfer Service
With this service, you can call us toll free at 800-760-2265 (314-592-8000 for Metro St. Louis) to transfer funds between your savings and checking accounts with us and obtain account information. A representative is available Monday through Friday between the hours of 7:00 a.m. and 11:00 p.m. CST and from 8:00 a.m. to 7:00 p.m. CST on Saturday. You will need to provide us with identifying information in order to access the service. If we issue an automated telephone pass code to you in connection with the service, you agree not to disclose it to others and to safeguard its confidentiality. We will transfer funds between your First Bank accounts that have been tied to this service. Transfers will be made only from collected funds and will be available for withdrawal at the opening of the Bank’s next banking day. You can ask a representative to place a stop payment on a check by calling our toll free number. Telephone transfer requests must be received on or before 8:00 p.m. CST on a banking day to ensure processing on the same day. Transactions occurring after that hour or on a Saturday, Sunday or Federal holiday may be processed on the next banking day.
Electronic Check Conversion
You may authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to pay for purchases or pay bills.
We may choose only to provide certain information, such as payee account numbers, to the account holder or authorized signer who has enrolled in Online Banking. Banking transactions conducted via Online Banking are governed by a separate agreement in addition to this Account Agreement.
Banking transactions conducted via the Gateway Information Reporting and Transaction Initiation systems are governed by a separate agreement in addition to this Account Agreement.
Record of Your Transaction Receipts
You can get a receipt at the time you make any transfer to or from your account using one of our ATMs. All ATM transactions are subject to later verification by us.
If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can call your branch to find out whether or not the deposit has been made.
You will get a monthly account statement unless there are no transfers in a particular month. In any case you will get a statement at least quarterly. This does not apply to time deposits.
If you have arranged in advance to make regular payments out of your account and they may vary in amount, the person you are going to pay will tell you 10 days before each payment when it will be made and how much it will be. You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment or when the amount would fall outside certain limits that you set.
Our Liability for Failing to Make Transfers
If we do not complete an electronic fund transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages. There are some exceptions, however. We will not be liable, for example, if: Through no fault of ours, you do not have enough available funds in your account to make the transfer; The transfer would exceed any permitted overdraft line you have with us; circumstances beyond our control (such as fire, flood, water damage, power failure, strike, labor dispute, computer breakdown, rolling blackout, telephone line disruption or a natural disaster) prevent or delay the transfer despite reasonable precautions taken by us; the system, ATM or POS terminal was not working properly and you knew about the problem when you started the transaction; the transaction cannot be completed because your Card is damaged; the funds in your account are subject to legal process,an uncollected funds hold, or are otherwise not available for withdrawal; the information supplied by you or a third party is incorrect, incomplete, ambiguous or untimely; or we have reason to believe the transaction may not be authorized by you.
There may be other exceptions stated in our agreement with you.
Your Liability for Unauthorized Electronic Fund Transfers
Tell us AT ONCE if you believe your Card or PIN has been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Contacting us by telephone is the best way of keeping your possible losses down. You could lose all the money in your account (plus your maximum overdraft line of credit). If you tell us within two business days after you learn of the loss or theft of your Card or PIN, you can lose no more than $50 if someone used your Card or PIN without your permission. If you do NOT tell us within two business days after you learn of the loss or theft of your Card, PIN, User ID or Password and we can prove we could have stopped someone from using your Card, PIN, User ID or Password without your permission if you had told us, you could lose as much as $500. Under MasterCard Rules, you will not be liable for the $50 or $500 amounts described above for transactions where your PIN is not used to verify your identity, provided: you have not reported two or more incidents of unauthorized use in the immediately preceding 12 months, your Card account is in good standing, and you have exercised reasonable care in safeguarding your Card from risk of loss or theft. Note: The $500 liability provision also does not apply to Cards issued in connection with California accounts that may be used to initiate electronic funds transfers without a PIN. Also, if your statement shows transfers that you did not make, tell us at once. If you do not tell us within 60 days after the statement was mailed 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, a hospital stay, or the illness of a family member, kept you from telling us, we will extend the time periods.
In Case of Errors or Questions About Your Electronic Transfers
Call or write to us by contacting your local First Bank office at the phone number or address shown on your periodic statement as soon as you can if you think your statement or receipt is wrong or if you need more information about an electronic transaction. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.
(1) Tell us your name and account number.
(2) Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
(3) 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 10 business days. We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of the money during the time that it takes us to complete our investigation. In certain instances, we may provide credit sooner. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account. For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.
We will tell you the results within three 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.
Business and Other Non-personal Accounts
The provisions in this Electronic Fund Transfers section dealing with “Our Liability for Failing to Make Transfers,” “Your Liability for Unauthorized Electronic Fund Transfers,” and “In Case of Errors or Questions About Your Electronic Fund Transfers” (and related provisions on the back of periodic statements) do not apply to business or other non-personal accounts. Under no circumstances will we be liable for any special or consequential damages involving such accounts. You should notify us immediately if you discover any unauthorized transactions or errors involving your Card or account. You must send us a written notice of the problem within a reasonable time, not to exceed 14 days from the date of discovery or your receipt of the first statement or notice reflecting the problem, whichever occurs first. You are liable for all unauthorized transactions made with your Card and/or PIN that occur prior to the time you notify us: to cancel your Card; that an unauthorized transaction has taken place; or that your Card or PIN has been lost or stolen. There is one exception to this liability: If your account is in good standing, you have exercised reasonable care in safeguarding your Card from any unauthorized use, and you have not reported two or more incidents of unauthorized use in the past 12 months, you may not be liable for unauthorized signature based activity under MasterCard’s rules for small businesses (effective on the date this agreement was printed, but subject to change by MasterCard from time to time without notice). It is important that you review your statements closely, however. If your statement shows transactions you did not make, contact us at once. If you fail to notify us of unauthorized transactions within 60 days after the first statement or report showing unauthorized activity was sent or made available to you, you will be liable for unauthorized transactions that occur after the 60-day period. Card transactions are not considered unauthorized if they are made by a business co-owner or any other person with an interest in or authority to transact business on your account, even if the person exceeds any authority given by you.
How to Stop Preauthorized Transfers from Your Account
If you have told us in advance to make regular payments out of your account, you can stop any of these payments by contacting your local First Bank office at the phone number or address shown on your periodic statement. We must receive your request at least three banking days before the payment is scheduled to be made. If you fail to give us your request at least three banking days prior to a transfer, we may attempt, at our sole discretion, to stop the payment. We assume no responsibility for our failure or refusal to do so, however, even if we accept the request for processing. If you call, we may require you to put your request in writing to us and to provide us with a copy of your notice to the payee, revoking the payee’s authority to originate debits to your account, within 14 days after you call. If we do not receive the written confirmation within 14 days, we may honor subsequent debits to your account. For individual payments, your request should specify the exact amount (dollars and cents) of the transfer you want to stop, the date of the transfer, and the identity of the payee. Unless you tell us that all future transfers to a specific recipient are to be stopped, we may treat your stop payment order as a request concerning the one transfer only. If you order us to stop one of these payments at least three banking days before the transfer is scheduled and we do not do so, we will be liable for your losses or damages.
Lost or Stolen PIN or Password
If you believe your Personal Identification Number or Password has been lost or stolen or that someone has transferred or may transfer money from your account without your permission, call us or write us at the phone number or address shown on your periodic statement. You should also call the number or write to the address if you believe a transfer has been made using the information from your check without your permission.
Our banking days are Monday through Friday, excluding bank holidays. Business Day means a calendar day other than a Saturday or a Sunday, January 1, the third Monday in January, the third Monday in February, the last Monday in May, July 4, the first Monday in September, the second Monday in October, November 11, the fourth Thursday in November, or December 25. If January 1, July 4, November 11, or December 25 fall on a Sunday, the next Monday is not a business day.
Release of Account Information
We may release information regarding your account and the transactions you perform.
Certain transaction limitations are imposed on Money Market Deposit and Savings Accounts.
Change in Terms/Termination of Service
We may add to, delete or change the terms or terminate your use of our electronic fund transfer services at any time, with or without cause. We may terminate or suspend your electronic fund transfer service immediately if: any of you breach this or any other agreement with us; we have reason to believe that there has been or may be an unauthorized use of your account, Card or PIN; there are conflicting claims to the funds in your account; or any of you requests that we do so.
ADDITIONAL TERMS AND CONDITIONS
We may make adjustments to your account whenever a correction or change is required. Adjustments might occur, for example, if deposits are recorded in the wrong amount or items you deposit are returned unpaid. We may elect, at our discretion, not to make an adjustment to your account to correct an error which you or a third party (e.g., another financial institution) cause if the adjustment is less than $10.00 or our cost to make the adjustment is greater than the amount in question.
Assignment of Your Account
We reserve the right to sell, assign or transfer your account, any amounts owed, this Agreement, or our rights or obligations under your account or this Agreement to any person or entity. You acknowledge that the recipient shall be entitled to enforce all of our rights and perform all of the obligations that we sell, assign or transfer, without any further rights or obligations on our part.
Attorney-Client Trust Accounts
Attorneys may establish unsegregated client trust accounts, as required by law, for the purpose of receiving and disbursing client funds that are nominal in amount or on deposit for a short time. Interest on these “IOLTA” or “IOTA” accounts is paid to the appropriate state bar or foundation or trust established by such State. If you want to open an IOLTA or IOTA account, you must indicate that on your signature card. Otherwise, we may assume that it is not an IOLTA or IOTA account.
Unless your account is maintained in California, if any action or proceeding is brought by you or us to enforce or interpret this Agreement, we shall be entitled to reasonable attorney’s fees.
Cashing Items for Non-Account Holders
From time to time, a person who does not have an account at First Bank may attempt to cash an item drawn on First Bank. Cashing an item for a non-account holder involves certain risks for us that are not present if the item is deposited at another financial institution and presented to us through normal item collection channels. As a result, you agree that we may charge a non-account holder a fee to cash an item or other item (including a payroll check) that is drawn on the Bank. These fees may be imposed without prior notice to you and may be applied to items that are drawn on your account or that are issued by the Bank.
Changes In Account Ownership, Address and Authorized Signers
You agree to notify us immediately in writing of any change in your name, address, email address, business capacity (e.g., sole proprietor to corporation), or the authorized signers on your account. We may require a new signature card or other documentation before giving effect to any change in ownership or authorized signers. Pursuant to state law, you may also be required to notify us in writing of any change in physical address of the business, the home address of the owner of the business, the driver’s license number of the business owner or personal identification card number issued to the business owner by the State, and the certificate of incorporation or comparable document and assumed name certificate, if any. If the authorized persons on your account change, we may continue to honor items and instructions given earlier by any previously authorized person(s) until we receive specific notice from you in writing not to do so. (Note: A new or updated signature card, by itself, does not constitute notice to terminate any pre-existing payment or transfer plan.) In some instances we may require you to close your account or provide us with stop payment orders in order to prevent transactions from occurring. There may be a delay in implementing a change in the authorized persons on our records, and you agree that we will be given a reasonable opportunity to make the changes necessary.
Check prices vary according to the types of checks you select. You can obtain information on the current price of checks by contacting your office of account. Check charges may vary from time to time without specific notice to you. You are responsible for verifying the accuracy of all information shown on your checks and deposit tickets. If you find an error, please notify us immediately. We are not liable for losses resulting from incorrectly printed checks or deposit tickets. If you arrange for the printing of your own checks, the form, encoding and format of the checks must follow our check specification requirements and be approved by us in advance. The name(s) printed on your checks must agree with the name(s) on our account records. If you do not purchase your checks through us, we may charge a fee for each check that is rejected during processing due to poor print quality, or if it fails to meet our specifications. You agree not to issue checks with features or marks that obscure, alter or impair information on the front or back of a check or that otherwise prevents us or another bank from capturing such information during automated check processing. We make checks available that include fraud prevention features. If you choose not to use these or other checks that include fraud prevention features, you agree to assume a heightened degree of responsibility for safeguarding your checks, and for reviewing all returned checks and statements as soon as you receive them.
Checks Bearing Notations
Although we are not obligated to, we may pay or accept checks and other items bearing restrictions or notations (e.g., “Void after 6 months”, “Void over $50.00”, “Payment in Full,” and the like), whether on the front or back, in any form or format. If you cash or deposit an item or write a check with such a notation, you agree that it applies only between you and the payee or maker. The notation will have no effect on us, and you agree to accept responsibility for payment of the item. You agree to indemnify and hold us harmless from any claim or alleged loss of any maker or payee involving such notations, whether you are the maker or payee or the funds are otherwise deposited into an account in which you have an interest.
Federal regulations provide that the top 1-1/2 inches on the back of a check (when read vertically from the trailing edge) is designated for your endorsement as payee. If you endorse a check in the area outside of the endorsement area, mark or otherwise obscure the other area, or make an endorsement which is illegible or incomplete, you agree to hold us harmless from any loss, delay, liability, claim, or damage which occurs as a result.
If you receive our check imaging service, we will send images of your canceled checks to you with your monthly statements (Certain business customers may receive images of their checks on a CD-ROM disk). Your canceled checks will not be returned to you, but will be destroyed shortly after we process your statement. We will maintain an image of each check for seven years. In some cases, checks you write may be converted into electronic images (truncated) during the check collection and return process and we will receive copies of your checks, rather than originals. You can obtain copies of your checks by sending us a written request with the following information: your name, account number, check number, the amount of the check, and (if known) the date the check was paid. We will not be responsible for any indirect, special or consequential damages under any circumstances for our inability to provide copies of checks. Our liability, if any, will not exceed the face amount of the check in question. You agree to provide us with reasonable proof of any loss.
Item Processing Cutoff Hour
Our processing cutoff hour with respect to any knowledge, notice, stop payment or postdated item order, or legal process received by us involving an item is one hour after the opening of the banking day following the banking day on which we receive the item. The cutoff hour with respect to setoffs exercised by us is midnight of the banking day following the banking day we receive an item, or such later time by which we must return the item. The cutoff hour determines our obligation under state law to pay or return certain items that have been received (but not finally paid) by us on the previous banking day.
We process certain checks by automated means based on information encoded on the checks. We may not physically examine all checks to determine if they are properly signed or completed. You agree that we may rely on such a process and that it will be deemed an acceptable standard of care on our part.
Checks Lost or Stolen
You agree to safeguard your blank and canceled checks, and to take reasonable steps to prevent their unauthorized use. If you are a business, you should store them under dual control in a secure, locked location that is accessible only to authorized personnel. If your checks are lost or stolen, you agree to notify us immediately. For security reasons, we reserve the right to close your account and transfer the balance to a new account. If we do, all checks written but not yet paid may be returned to payees as “Account Closed” or “Refer to Maker”. You will be responsible for issuing any replacement checks. When you cash or deposit a check or other item with us, we act as your agent to collect the item. The risk of loss of an item in the process of collection is on you. We may reverse any credit given and any interest earned or accrued for a deposited item that is lost in transit and we may recover from any account you maintain with us the funds given to you for a cashed item which is lost in transit. You will do everything reasonably within your ability to promptly assist us to find, identify or replace a lost item, including but not limited to maintaining a record of the maker of items delivered to us for deposit and collection. We shall not be liable to you if an item is lost in the process of collection provided we exercised ordinary care in handling the item. In no event shall we be liable to you if you cannot identify the maker of the lost item.
Compliance With Applicable Law
You agree to comply with applicable law including without limitation, the economic sanctions administered by the U.S. Treasury’s Office of Foreign Asset Control. You may not use your account or any account-related service to conduct transactions that are prohibited by the Unlawful Internet Gambling Enforcement Act. You may not use your account or services for any illegal activity. You agree to indemnify, defend and hold us harmless from every action, proceeding, claim, loss, cost and expense (including attorney’s fees) suffered or incurred by you or us due to any U.S. or foreign government entity seizing, freezing or otherwise asserting or causing us to assert control over any account or funds in an account of yours (or ours) when purportedly caused by or arising out of your action or inaction. This will apply whether or not such action is ultimately determined to be authorized under the laws of the U.S. or its territories, or of any foreign jurisdiction. We are not required to inquire or determine the authority of any action taken by the U.S. or foreign government entity prior to acceding to any legal process initiated by it.
If (i) there is any uncertainty regarding the ownership of an account or its funds, (ii) there are conflicting demands over its ownership or control, (iii) we are unable to determine any person’s authority to give us instructions regarding the account, (iv) we are requested by Adult Protective Services, law enforcement, or any similar state or local agency to freeze the account or reject a transaction due to the suspected financial abuse of an elder or dependent adult, or (v) we believe a transaction may be fraudulent or may violate any law, we may at our sole discretion: (1) freeze the account and refuse transactions until we receive written proof, in form and substance satisfactory to us, of each person’s right and authority over the account and its funds; (2) require the signatures of all of you for the withdrawal of funds, the closing of an account, or any change in the account regardless of the number of authorized signers on the account; (3) request instructions from a court of competent jurisdiction at your expense regarding the ownership or control of the account; (4) continue to honor items and other instructions given to us by the individuals who appear as authorized signers according to our records; and/or (5) require a bond indemnifying us from any and all loss, liability, damages, costs and expenses for and on account of the payment of an adverse claim, dishonor of an item or the execution of any other order by any adverse claimant or you. In no event will we be liable for any delay or refusal to follow instructions that occurs as a result of a dispute or uncertainty over the ownership or control of your account. We may return items and other items, marked “Refer to Maker” (or similar language), in the event there is a dispute or uncertainty over an account’s ownership or control. The existence of the rights set forth above shall not impose an obligation on us to assert such rights or to deny a transaction.
Consent to Gather Information
Each of you authorizes us to obtain information from time to time regarding your credit history from credit reporting agencies and other third parties.
Death or Adjudication of Incompetence
You agree to notify us immediately of the death or court-declared incompetence of any owner, authorized signer or designated beneficiary on your account. You agree that we may disregard any notice of incompetence unless the person in question has been declared incompetent by a court of appropriate jurisdiction and we receive written notice and instructions from the court regarding the account. We also may freeze, offset, refuse and/or reverse deposits and transactions (e.g., governmental or retirement benefit payments payable to the deceased) if an owner dies or is adjudicated incompetent. If a joint account is owned solely by joint tenants who are husband and wife residing in Missouri or Florida, then the owners will be treated as owning the joint account as tenants by the entirety. Upon the death of a tenant by the entirety, the surviving spouse has the right to all the funds in the account, subject to rights of setoff and security interests in the account. If the account is held by a husband and wife as “community property”, ownership of the account will be determined by applicable community property law and may be affected by a will. If the account is held as “tenants in common”, a deceased owner’s share passes to the estate or other legal representative of the deceased tenant. “Pay On Death” and informal trust accounts established for one owner pass to the named beneficiaries who survive the owner. “Pay on Death” accounts established for joint accounts pass to the surviving owner(s), if any, then automatically to the named beneficiaries who survive the last surviving owner. The surviving named beneficiaries are entitled to withdraw funds in the account only if all account owners are deceased. If there is more than one surviving beneficiary, each will receive an equal share of the funds, unless, where permitted by law, the account documentation indicates otherwise. In all states, the owner(s) may change beneficiaries during their lifetimes by updating our account documentation. Owners should keep us informed about each beneficiary’s address. If we have any question as to the ownership of funds or the amount of funds that belong to any person upon the death of an owner, we may freeze all or part of the account, pending receipt of proof (satisfactory to us) of each person’s right to the funds. The rights of the designated beneficiary of the account are subordinate to any rights of First Bank or any other creditor to whom such account has been pledged or who may otherwise have a lien interest or right of setoff in such account. No amounts will be payable to any designated beneficiary until any indebtedness of the owner(s) of the account to the First Bank has been paid in full. We shall be entitled to be reimbursed from the funds in any of your accounts for any costs incurred by the Bank, including legal fees, as a result of our paying or refusing to pay any amounts hereunder, unless such costs are incurred as a result of the Bank’s intentional wrongful refusal to make payments as required under the pay on death designation.
If you provide your account number to a third party in order to charge your account by means of one or more demand drafts or remotely created checks (i.e., items which do not bear your actual signature, but purport to be drawn with your authorization), you authorize us to pay such drafts, even though they do not contain your signature and may exceed the amounts you authorized to be charged. This provision shall not obligate us to honor demand drafts. We may refuse to honor demand drafts without cause or prior notice, even if we have honored similar items previously. We are not under any obligation to verify whether the name and account number shown on a demand draft are consistent. You may not deposit demand drafts or remotely created checks (items not bearing the maker’s signature, but purporting to be authorized by the maker) to an account with us without our prior, express written consent. We may discontinue accepting demand drafts and remotely created checks at any time, without cause or prior notice.
You agree not to use facsimile signatures on items unless we receive representative samples and approve their use. We may refuse to accept or may pay items bearing facsimile signatures. You agree to assume full responsibility for any and all payments made by us in reliance upon signatures that resemble the actual or facsimile signature(s) (without regard to variation in color or size) that any of you provide to us in connection with your accounts or services. You authorize us to pay any item that appears to bear your authorized facsimile signature, without further inquiry. You agree to indemnify, defend and hold us harmless from any and all actions, claims, losses, damages, liabilities and expenses (including attorney’s fees) arising directly or indirectly from the misuse or the unlawful or unauthorized use or copying of facsimile signatures (whether affixed manually, by stamp, mechanically, electronically or otherwise).
Fax Instructions/Voice Mail/E-Mail
Subject to applicable laws, we may, but are not required to, act upon instructions received by fax transmission, voice mail or e-mail. We may not review your message until the banking day after its receipt. For that reason, it may not be appropriate to use these methods of communication if you need to reach us with time-sensitive information.
You will provide us with a current financial statement upon request.
We shall not be liable for any loss, expense, failure to perform, or delay caused by failure of communication systems, accidents, strikes, fire, flood, war, riot, civil strife, terrorist attack, earthquake, power outage, funds transfer system or government rules, acts of third parties, or any cause that is beyond our reasonable control.
We may refuse to accept items for deposit or collection if they are payable in a foreign currency. If we accept a foreign item, you assume all the risk of loss associated with currency value fluctuations and late returns. We may use our current buying or selling rate, as applicable, when processing foreign currency items and may recover from your account any loss incurred in connection with our processing of such items.
Foreign Language Checks
If you write or deposit a check on which the amount is written in a language other than English, we reserve the right, at our option, to rely on the dollar amount expressed in numbers, rather than translating the amount written in a foreign language into English.
Full Satisfaction Payments
Any payments made in full satisfaction of any dispute you have about amounts you owe us under this or any other agreement must be mailed or delivered to our address, with a description (on a separate page) of the dispute, the loan or deposit account number in question, and a conspicuous statement that the payment is being tendered in settlement of the dispute.
Except as otherwise set forth in this agreement, you agree to indemnify, defend and hold us harmless from all claims, actions, proceedings, fines, costs and expenses (including, without limitation, attorney fees) related to or arising out of: (a) your actions or omissions in connection with your accounts or our services, or (b) our actions or omissions, provided that they are taken/omitted in accordance with this agreement or your instructions. This provision shall survive the termination of this agreement.
Unless otherwise provided in our fee schedule, service charges for “inactive accounts” are the same as service charges for active accounts. Charges are not reimbursed for inactive accounts that are later reclassified as “active”. For security reasons, we may refuse a withdrawal or transfer from accounts we internally classify as dormant if we cannot reach you in a timely fashion to confirm the transaction’s authorization. If your account is inactive for more than one year, we may, at our option, provide quarterly (rather than monthly) statements for your account and/or close your account and forward the account balance to you. After your account has been inactive for a certain period of time, as determined by applicable law, and we have been unsuccessful in contacting you, we will be required to turn over the balance in the dormant account to the applicable state agency, and we will have no further obligation to you regarding the account.
Items Sent For Collection
We and other institutions may refuse to accept an item for deposit or may accept it on a collection basis only. This often occurs with foreign or damaged items. If we accept an item for collection, we will send it to the institution upon which it is drawn, but will not credit your account for the amount until we receive the funds from the other institution. If we elect to credit your account before then, we may charge the amount back against your account if we do not receive payment for any reason. We may impose a fee in connection with sending and receiving items for collection (e.g., by charging your account or deducting the fee from the amount remitted). Other institutions that send or receive items for collection involving your account also may impose a fee for their services.
Jury Waiver and Judicial Reference
You and we each waive our respective rights to a trial before a jury in connection with any disputes related to this agreement, your account or account services. This includes any claim by us or by you, claims brought by you as a class representative on behalf of others, and claims by a class representative on your behalf as a class member (so-called “class action” suits). This paragraph shall not apply if, at the time an action is brought, your account is maintained in a state where this jury trial waiver is not permitted by law. If a dispute involving $50,000 or more arises between us with respect to this Agreement, its enforcement or our services, and your account is maintained at one of our branches in California, you and we agree that all decisions of fact and law in any action brought in connection with your account or account services shall be decided, at the option of either party, by a referee appointed by the court in accordance with California Code of Civil Procedure, Sections 638, et seq. The referee shall be a retired judge, agreed upon by the parties, from the American Arbitration Association (AAA). If you and we cannot agree on the referee, the party who initially selected the reference procedure shall request a panel of ten retired judges from the AAA, and the court shall select the referee from that panel. The costs of the reference procedure, including the fee for the court reporter, shall be borne equally by all parties as the costs are incurred. The referee shall hear all pre-trial and post-trial matters, including requests for equitable relief; prepare an award with written findings of fact and conclusions of law; and apportion costs as appropriate. Judgment upon the award shall be entered in the court in which such proceeding was commenced and all parties shall have full rights of appeal. This provision will not be deemed to limit or constrain our right to set off, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien we may hold in property, or to comply with legal process involving your accounts or other property.
Except in California, we shall be entitled to be reimbursed from the funds in your account for any costs incurred by the Bank, including legal fees, as the result of our consulting outside counsel in connection with paying or refusing to pay any amounts from, or any other claims with regard to, any of your accounts, unless such costs are incurred as a result of the Bank’s intentional wrongful refusal to make payment.
We may comply with any writ of attachment, execution, garnishment, tax levy, restraining order, subpoena, warrant or other legal process which we believe (correctly or otherwise) to be valid. If permitted by law, we may notify you of such process by telephone, electronically, or in writing. If we are not fully reimbursed for our record research, photocopying and handling costs by the party that served the process, we may charge such costs to your account, in addition to our minimum legal process fee. You agree to indemnify, defend and hold us harmless from all actions, claims, liabilities, losses, costs, attorney’s fees, and damages associated with our compliance with any process that we believe to be valid. Accounts opened with trust or fiduciary designations (e.g., “XYZ, Inc. — Client Trust Account”) may be subject to levies and other legal process against your property unless our records clearly reflect the existence of an express written trust or court order. We may not pay interest on funds that we hold or set aside in response to legal process. You agree that we may honor legal process that is served personally, by mail, or by facsimile transmission at any of our offices (including locations other than where the funds, records or property sought is held), even if the law requires personal delivery at the office where your account or records are maintained.
Limitation on Time to Sue
Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty or right arising under this agreement or by law with respect to your account or any account service must be commenced within one year after the cause of action accrues.
If you have entered into a night depository agreement with us, the terms and conditions of that agreement supersede the terms of this section. You must make deposits in our night depository only by use of securely sealed envelopes. We are not responsible for deposits that are not in securely sealed envelopes. You will not receive a deposit receipt if you use the night depository. All night depository transactions are subject to later verification by us. You must be certain that your deposit has entered the interior vault of the night depository. We are not responsible for any deposits until the envelope and its contents have fallen down the interior chute of the night depository and landed on the floor of the interior vault. Placing an envelope or other materials in the exterior door of the night depository or in the mouth or upper portion of the interior chute is not a deposit. The relationship established by each use of the night depository is a separate bailment. You must give us written notice of any irregularity or loss of any envelope or contents within thirty (30) calendar days of the day on which the envelope is alleged to have been delivered to us. After that time, our records as to the receipt or non-receipt of the envelope or the amount of the contents of the envelope shall be conclusively presumed to be correct. If you give such notice, you must prove by clear and convincing evidence that (a) the envelope and its contents were delivered into our exclusive custody and control; (b) the exact dollar amount of the money and items in the envelope; and (c) that we were negligent. You must also take all reasonable steps to mitigate any loss or damages. We do not insure the night depository or anything you put in it. We are responsible only for using ordinary care for items placed in the night depository. We will not be responsible for any loss caused by fire, flood, vandalism, burglary, acts of god or water damage. In no event will we be responsible for consequential damages or lost profits. We do not have guards or cameras at night depository locations. We do not guarantee your safety at the night depository. When making deposits you should exercise due care and assess the risks associated with the time of day, lighting, the location of the night depository and other factors affecting personal safety. We recommend that you do not use the night depository at night without adequate protection or if there are any suspicious circumstances. Please refer to the section entitled “ATM Safety” for additional recommendations regarding safety at unstaffed locations.
Order of Posting Transactions
This paragraph describes, generally, how we post transactions to accounts, regardless of the order in which the items occur or in which we receive them. Your account statement will not necessarily report credits and debits in the order in which we posted them to your account. Please note that this process may change from time to time, without prior notice to you. Our order of posting depends on a number of factors, including when a transaction occurs, whether it has already been approved by us or has become final, the order in which it is presented, the amount, system availability, potential risk of loss to the Bank, and the type of transaction in question, among other variables. Usually, deposits are posted before debits, checks are posted in check serial number order (ascending), and transfers are posted in chronological order or by amount (low-to-high). There are several exceptions to this, however. For example, some transactions may not be time-stamped, certain checks (e.g., for online bill payments) may be given unique serial numbers, and we may not be able to process certain checks by serial number. We generally process withdrawals in the following sequence at the end of the banking day: (1) previously authorized transactions (e.g., ATM withdrawals, point-of-sale debit card transactions, checks cashed at the Bank, and on-us checks deposited by another Bank customer); (2) wires; (3) transfers between First Bank accounts; (4) checks presented for payment against your account; (5) automated clearing house transactions; and (6) bank fees. There are exceptions to this general rule, as well. We always reserve the right to post transactions that are payable to us first, and we may post any transaction earlier or later in the process than indicated. If you want to avoid an overdraft or the possibility of a rejected transaction, you should take steps to ensure that your account has sufficient funds to cover each of your transactions and our fees. The order in which we post your transactions may affect whether you incur fees for insufficient or unavailable funds and the number of transactions for which a fee is charged. A fee is charged for each transaction that exceeds the amount of sufficient or available funds in your account to pay it.
You may have another agreement with us which, by its terms, supersedes this agreement in whole or in part. For example, if you are a governmental unit or a business customer, certain provisions of your other agreements with us (e.g., involving Treasury Management services) may supersede some of the terms of this agreement, to the extent that they are inconsistent. Overdrafts. It is possible for you to overdraw your account even though our records of your available funds appears to show that there are sufficient funds in your account, because withdrawals and transfers that you request will not appear on your account records until after we receive them. It is your responsibility to know if there are sufficient funds in your account before you write a check, make a cash withdrawal at an ATM, make a purchase with your debit card, or issue, initiate or authorize any other item for payment from your account. It is important that you carefully monitor the funds in your account, and promptly record in your account register all of your deposits to, and items that you issue, initiate or authorize for payment from, your account. You should never assume that you can make a covering deposit to your account before an item will be presented to us for payment because items are often presented to us for payment very quickly, and because funds from your covering deposit may not be immediately available for withdrawal. If you do not have sufficient available funds on deposit to cover the amount of an item or other transaction (e.g., ATM withdrawals, Card transactions, preauthorized automatic debits, telephone initiated transfers or other electronic transfers), we may return the item or reject the transaction without payment. We may elect, however, in our sole discretion to create an overdraft by paying the item or permitting the transaction. Either way, there may be a service charge for each item or transaction. We may cover overdrafts created by consumer ATM and everyday debit card transactions. Federal regulations require that if you wish these transactions to be eligible for overdraft protection, you must specifically opt-in to the service. If you wish to take advantage of this opportunity, ask a Service Representative for a form. You may choose at any time not to participate in the ATM and everyday debit card coverage option by notifying one of our Service Representatives, who will explain what this (“Opt Out”) means, and the potential consequences, for you. Transactions that overdraw your account are subject to a non-sufficient funds fee. In addition, if permitted by law, you agree to reimburse us for all claims, costs, losses, and damages (including fees paid for collection) we may incur with respect to your overdrafts or returned deposits. This includes but is not limited to, returned deposited items.If we permit an overdraft or otherwise allow your account balance to drop below zero, you agree to pay the amount of the overdraft immediately, without notice or demand from us. Each account owner is jointly and severally responsible for paying any overdrafts created by any authorized signer(s) or party to the account, whether or not the owner participates in the transaction or benefits from its proceeds. You agree that subsequent deposits and other credits to the account may be used to satisfy an overdraft, regardless of the source of such deposit including, without limitation, deposits comprised of government, welfare, retirement or social security benefits. If you make a deposit on the same day that an item or transaction creates an overdraft (a “temporary” or “intra-day overdraft”), we may charge a fee for the overdraft since the covering deposit may not be posted until the end of the banking day. In some cases (e.g., deposits received at a night depository or after our processing cutoff hour), the deposit may not be deemed received until the next banking day. It is the policy of First Bank to comply with applicable laws and regulations, and to conduct business in accordance with applicable safety and soundness standards. Rather than automatically returning, unpaid, any non-sufficient funds item or transaction that you may have on your account, we reserve the right, without obligation on our part, to approve your overdraft. Paying an overdraft does not obligate us to pay future overdrafts even if your account is in good standing and we have paid overdrafts for you in the past. We may discontinue permitting overdrafts without notice to you. If you anticipate the possibility of repeated overdrafts, please consider applying for our Preferred Credit service, which is more dependable and may be less expensive. If your account is overdrawn when it is closed, you agree to pay immediately all amounts you owe us, with or without notice or demand from us.
Overdraft Transfers--Protection via Transfers from Another First Bank Account
All of the following services will only be provided if you agreed to receive them. Under the Overdraft Transfer Service, you authorize us to automatically transfer funds sufficient to cover the amount of any overdraft and service charge to your primary checking account from an eligible secondary deposit account (checking, savings, or money market) that you selected. One transfer will be made at the end of the banking day in which an overdraft occurs. At least one of the owners of the primary checking account must also be an owner of the secondary deposit account. An account may be used in only one Overdraft Transfer Service relationship. You may elect to have up to two secondary accounts linked to your primary checking account. If there are insufficient funds in the first secondary deposit account that you selected to cover all items that are presented for payment, then only the funds for items that can be covered will be transferred to your primary checking account. If you selected an additional secondary deposit account, then available funds for additional items that can be covered may be transferred from that account to your primary checking account to cover items that were not covered by the first secondary deposit account. A single transfer fee will be deducted each day we transfer funds from any secondary deposit account to cover the insufficient funds in your checking account. That fee will be deducted from the last secondary deposit account from which available funds were deducted. If there are insufficient funds in all secondary deposit account(s), then overdrafts from your primary checking account may be covered with available funds from your preferred credit account, if applicable. If not, then the Overdraft Privilege service (if funds are available to you) may cover the overdraft before the items are considered for being returned to the sender unpaid. These services are subject to existing rules for these services, including any corresponding fees. If your secondary deposit account is a savings or money market account, transfers from such accounts are considered preauthorized transfers and are limited by Federal regulation to six pre-authorized transfers (including telephone and automatic transfers) during each statement period. Any rules, including fees assessed for excessive transactions from your savings or money market account will apply so that you may be assessed both an Excessive Transaction fee and an Overdraft Transfer fee or your account may be closed. Funds deposited into your secondary deposit account(s) are subject to the First Bank Funds Availability policy and may not be immediately available for the Overdraft Transfer Service. We may cancel your Overdraft Transfer Service if any one of your accounts selected for this service is closed.
Checks and other items are sometimes lost during processing or while in transit. If a photocopy of a check or other item that appears to be drawn on your account is presented to us for payment in place of the original, we may pay the photocopy if it is accompanied by a representation from another financial institution that the original item has been lost or destroyed. We will not incur any liability in the event the original item is later presented to and paid by us, unless a stop payment order is in effect for the item.
Unless you provide your branch of account with a written postdated check order that describes a postdated check with reasonable certainty, we may pay or return the check at our discretion before the date stated on the check. Your order must include the exact amount (dollars and cents), account number, check number, date of check and the name of payee. If you provide us with a postdated check order in a time and in a manner which affords us a reasonable opportunity to act on it, we will not pay the item and may return it (marked “payment stopped”, “postdated” or otherwise) if it is presented to us prior to the date indicated in the order (up to six months from the date of the order). After six months, an order is no longer effective and must be renewed. We may impose a fee for each order. If we re-credit your account after paying a postdated check over a valid and timely postdated check notice, you agree to transfer to us all of your related rights against the payee or other holder of the check, and to assist us in legal action taken against that person. You further agree that if we pay an item subject to a valid and timely postdated order, our liability is limited to the actual loss suffered up to the amount of the item and that we are not liable for any incidental, special or consequential damages.
Power of Attorney
Any account owner may provide us with a power of attorney. We generally will accept a statutory form power of attorney that complies with applicable state law. Upon request, we may provide you with a power of attorney form for transactions with First Bank. Unless prohibited by law, we may refuse to accept other forms of powers of attorney, however, with or without cause. You should notify us in advance if you plan to create a power of attorney involving your account. We may act on the instructions of an attorney in fact whether or not the attorney-infact relationship is noted in the instruction (e.g., on any item signed by the attorney in fact). You can revoke your power of attorney by sending a written notice to us at your branch of account. We assume no duty to monitor the actions of your attorney in fact to ensure (s)he acts for your benefit.
We may in our discretion retain records in any form including, without limit, paper, film, fiche, digitalized or other electronic medium. All recordings and discs, magnetic tapes, security reports and related media and records used by us for transactions contemplated by this Agreement shall remain our property. If we are not able to produce the original or a copy of your signature card or any other document relating to your account or service, our records (including our electronic records) will be deemed conclusive. If there is a discrepancy between your records and our records, you agree our records will be deemed conclusive.
Release of Account Information
We may release information about your deposit, investment and loan accounts and the transactions you perform to third parties: where it is necessary in verifying or completing a transaction; to our affiliates and to other financial institutions with whom we have a joint marketing agreement, unless prohibited by applicable law; to disclose the existence, history, and condition of your account to consumer reporting agencies; when you give us your consent; to comply with the law or a court or governmental order; to local, state and Federal authorities if we believe a crime may have been committed involving your account; as permitted by law; and, if you are a business, in response to trade inquiries. If we close your account because of unsatisfactory handling, we generally report the reason we closed the account to account information services. The information service may supply this information to others. This may adversely impact your ability to establish another account at a financial institution for an extended period. We may also report to credit bureaus that your account has been charged off as a loss to the Bank, which may affect your credit for an extended period. Please see our Consumer Privacy Notice for additional details.
If we are notified that an item you cashed or deposited is being returned unpaid, we may attempt to re-clear the item, place a hold on the funds in question (see “Funds Availability”), or charge your account for the amount (and any interest earned on it), whether or not the return or notice of non-payment is proper or timely. This also applies to items that are drawn on us which are not paid for any reason, and to items and other transactions that are returned or charged back to us in accordance with any law, regulation or rule (including a funds transfer system or clearinghouse rule). We may assess a fee for each returned item and notify you of the return orally, electronically, or in writing. If we receive an affidavit or a declaration under penalty of perjury stating that an endorsement on an item deposited to your account is forged, that the item contains an alteration, or that there has been a breach of warranty in connection with the item, we may charge the item back against your account or place a hold on the funds pending an investigation, without prior notice to you. Any credit we give you with respect to an automated clearing house entry is provisional until we receive final settlement for the entry. If we do not receive final settlement, you understand and agree that we may charge your account for the amount, and that the party making payment to you (i.e., the originator of the transfer) shall not be deemed to have paid you the amount of the transfer. If you give us an item in payment of an obligation that you owe us, and it is returned for insufficient or uncollected funds, you authorize us, at our discretion, to resubmit the item electronically through the automated clearing house to the institution upon which it is drawn. You agree that any restrictive endorsement on such items is void or ineffective.
Setoff and Security Interest
We may charge or set off funds in your account for any direct, indirect and/or acquired obligations that any owner owes us, regardless of the source of the funds in the account, to the fullest extent permitted by law. You grant us a security interest in your account for amounts owing to us by any owner. If we take or set off funds from a time deposit account, we may charge an early withdrawal penalty on the funds withdrawn. We may take or set off from your account before we pay items drawn on the account. We are not liable to you for dishonoring items where our action results in insufficient funds in your account to pay your items. If the law imposes conditions or limits on our ability to take or set off funds in your accounts, to the extent that you may do so by contract, you waive those conditions and limits and you authorize us to apply funds, including Federal and state benefit payments, in any or all of your accounts with us and with our affiliates to obligations you owe us. This provision does not apply to IRA or tax-qualified retirement accounts, to consumer credit card obligations or where otherwise prohibited by law. This section does not limit or reduce our rights under applicable law to charge or set off funds in your accounts with us for direct, indirect and acquired obligations you owe us.
If any of the provisions of this agreement are determined to be void or invalid, the remainder of the agreement shall remain in full force and effect.
You agree that we may pay or reject a check which is presented to us for payment more than six months after its date (a “stale-dated” check), even if the presentation occurs after the expiration of a stop payment order. We normally do not examine the date on checks presented for payment. You agree that we are not required to identify stale-dated checks or to seek your permission to pay them.
Statements, Communications, Notices and Items
If we provide you with a statement or notice, electronically or otherwise, you must promptly and carefully review it to determine if any errors or problems exist. You agree to notify us immediately of any error, discrepancy or unauthorized transaction you discover on any statement, notice or item. If you fail to do so, you may become responsible for the losses resulting from such failure. If you are a business, you agree not to entrust the writing of checks or the authorization of other items and the reconcilement and review of your account statements and notices to the same person without frequent monitoring. We may deny a claim for monetary loss due to forged, altered or unauthorized checks if you fail to follow these procedures. Statements and notices are normally sent to the last address or email address listed with us for your account. If you ask us to hold statements and notices for you, we may send them to you or destroy them if they are not picked up within a reasonable time. Notify us promptly if you do not receive your statement by the date you normally would expect to receive it. Statements and notices sent or made available to any of you are deemed to be received by all of you. If we hold them at your request or because you fail to provide us with a current address, they will be deemed delivered to you when they are prepared (for held statements), mailed (for returned mail) or otherwise made available to you (e.g., at a website or email address if you have agreed to electronic communications). We may hold statements if the Post Office notifies us that your mail is undeliverable. At our discretion, we may destroy mail that is returned to us or determined to be undeliverable. You must mail or deliver all notices to us in writing at the branch(es) where you maintain your account(s) or at such other address(es) as we designate (e.g., in connection with Treasury Management services). Notices sent elsewhere may be delayed or may not reach the correct office. You agree that we or any of our agents may contact you at any telephone number (including place of employment and cellular numbers) that you or any account holder supplies to us or is captured when you place a call to us or any of our agents. In addition, we or any of our agents may send notices, statements and other communications to you at the electronic or street address we have in our records for your account, as well as through cellular text messaging. You also consent and agree that those calls or messages may be automatically dialed and/or recorded. You understand that your service provider may charge you for these calls/messages.
Stop Payment Orders
Any owner or authorized signer on your account may request us to stop payment on a check or transaction. Your stop payment order must include the account number, check number, exact amount (dollars and cents), check or transaction date and the name of the payee. We will not be liable for paying a check or transaction over a stop payment order if the order is incomplete or incorrect. We must receive stop payment orders at a time and in a manner which affords us a reasonable opportunity to act upon them. There is a per-check/transaction charge for each stop payment order. Stop payment orders are valid for six months. After that time, the check may be paid and charged to your account unless you renew the stop payment order for an additional fee. We may accept oral stop payment orders. If we act upon an oral stop payment order, however, you agree to promptly confirm the order in writing and deliver it to us. If you fail to do so within 14 calendar days, we may release the stop payment. Our records will be conclusive evidence of the existence, details of, and our decision regarding any oral stop payment order or its revocation. You may not stop payment on electronic point-of-sale Card transactions, official or cashier’s checks, or checks or payments guaranteed by us. Under certain circumstances, however, you may be able to claim a refund on lost, stolen or destroyed official or cashier’s checks 90 days following the date of their issuance. Please note that electronic stop payment requests (through our Online Banking System or Gateway) may not be effective in stopping the payment of checks that have been posted to, but not finally paid from, your account on the preceding day. In order to ensure that those checks are not paid, you must contact one of our customer representatives in person, by telephone or in writing within one hour after we open on the day following the day we post the items to your account. You also should contact a representative if you wish to stop the payment of a check that has been converted to an electronic transaction by a merchant.
For regulatory reporting and reserve purposes, we divide checking accounts into two subaccounts: a checking subaccount and a savings subaccount. If your checking account earns interest, we will pay the same interest rate on both subaccounts. If it does not earn interest, no interest will be paid on either subaccount. In either case, your account will continue to operate, from your perspective, as one account. We may establish a threshold for the balance maintained in the checking subaccount and may transfer funds periodically from one subaccount to the other to meet that threshold and cover transactions against your account. Your account statements will not reflect the existence of the subaccounts, and our periodic reallocation of funds between subaccounts will not affect your ability to withdraw funds, the interest rate (if any), fees, or other features of your checking account. You agree that we may treat the subaccounts as one and the same account if we receive a levy, subpoena or other legal process regarding either subaccount or your checking account.
You agree not to deposit substitute checks, as described below, or checks bearing a substitute check legal equivalence statement (“This is a legal copy of your check. You can use it the same way you would use the original check.”) to your account without our prior written consent. Unless we agree otherwise in writing, our acceptance of such checks shall not obligate us to accept such items at a later time, and we may cease doing so without prior notice. If we approve the deposit of substitute checks, you agree to indemnify, defend and hold us harmless from all losses, costs, claims, actions, proceedings and attorney’s fees that we incur as a result of such checks, including without limitation, any indemnity or warranty claim that is made against us because: (a) the check fails to meet the requirements for legal equivalence, (b) a claimant makes a duplicate payment based on the original check, the substitute check, or a paper or electronic copy of either; or (c) a loss is incurred due to the receipt of the substitute check rather than the original check. Upon our request, you agree to provide us promptly with the original check or a copy that accurately reflects all of the information on the front and back of the original check when it was truncated. We may convert original checks to substitute checks. The following notice applies to consumer accounts and supersedes, where inconsistent, other terms in this agreement with respect to substitute checks:
Substitute Checks and Your Rights – Important Information About Your Account
What is a Substitute Check? To make check processing faster, Federal law permits banks to replace original checks with substitute checks”. These checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of a substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” You may use a substitute check as proof of payment just like the original check. Some or all of the checks that you receive back from us may be substitute checks. This notice describes rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks or to electronic debits to your account. However, you have rights under other laws with respect to those transactions.
What Are My Rights Regarding Substitute Checks?
In certain cases, Federal law provides a special procedure that allows you to request a refund for losses you suffer if a substitute check is posted to your account (for example, if you think that we withdrew the wrong amount from your account or that we withdrew money from your account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your account and fees that were charged as a result of the withdrawal (for example, insufficient funds service fees). The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You also are entitled to interest on the amount of your refund if your account is an interest-bearing account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law. If you use this procedure, you may receive up to $2,500 of your refund (plus interest if your account earns interest) within 10 business days after we received your claim and the remainder of your refund (plus interest if your account earns interest) not later than 45 calendar days after we received your claim. We may reverse the refund (including any interest on the refund) if we later are able to demonstrate that the substitute check was correctly posted to your account.
How Do I Make a Claim for a Refund?
If you believe that you have suffered a loss relating to a substitute check that you received and that was posted to your account, please your local First Bank office or contact us at: Telephone Banking Center - 1-800-760-2265 or First Bank Expedited Recredit, M1-199-072, 600 James S. McDonnell Blvd. Hazelwood, MO 63042. You must contact us within 40 calendar days of the date that we mailed (or otherwise delivered by a means to which you agreed) the substitute check in question or the account statement showing that the substitute check was posted to your account, whichever is later. We will extend this time period if you were not able to make a timely claim because of extraordinary circumstances. Your claim must include:
• Your name and account number;
• A description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect);
• An estimate of the amount of your loss;
• An explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and
• A copy of the substitute check and/or the following information to help us identify the substitute check: the check number; the date of the check; the name of the person to whom you wrote the check; the exact amount of the check (dollars and cents); and the date the check posted to your account.
From time to time, we may offer products or services with reduced or waived fees, or that include premiums. The benefit to you of our waiving such fees or providing such premiums may be taxable income for you. Depending on the amount of the benefit, we may be required to report the amount of any such benefit to the Internal Revenue Service. You will be solely responsible for paying all applicable Federal, state and local taxes on the benefit received; if applicable, recipient may receive an IRS Form 1099 for the total value of the benefit. All Federal, state and local laws and regulations apply. Please consult your tax advisor for additional information.
At our discretion, we may accept or refuse telephonic instructions from you in connection with your account. Our understanding of instructions and our records shall be conclusive evidence of the actual instructions given. We are not required to accept instructions or permit withdrawals by telephone, and this does not constitute an agreement by us to do so. Telephone transactions involving certain accounts are also subject to transaction limitations.
Telephone and Electronic Communication Monitoring/Recording
We sometimes monitor telephone conversations and electronic communications for quality and control purposes. We usually do not record conversations without notice to you. You acknowledge and agree on behalf of yourself, your employees and your agents, that we may monitor and record communications at any time without further notice to the parties to such communications.
Termination/Closing Your Account
Any authorized signer(s) may close your account at any time, with or without cause. We are not required to provide notice of such closure to the other authorized signers on the account. We may automatically close your account if the account balance is zero. We may terminate your account relationship with us at any time, with or without cause, by giving oral, electronic or written notice to any of you. If the funds are not withdrawn, we may send a check for the collected account balance to any of you at the last address we have on file for the account. Thereafter, the funds will stop earning interest (even if the check is returned or remains uncashed for any reason). We may dishonor any check, item or transaction presented for payment after an account is closed. At our sole discretion, we may honor checks, items and orders presented or occurring after an account is closed if the transaction is guaranteed by us to third parties (e.g., under a check guarantee or as part of an electronic fund transfer arrangement) or you fail to give us a timely stop payment order for any outstanding checks. You remain responsible for such items and transactions, which may be treated as overdrafts. This agreement continues to govern matters related to your account even after your account closes.
Unless otherwise agreed by us in writing, you may not grant, transfer or assign or negotiate any of your rights to an account without our prior written consent. We are not required to accept or recognize an attempted assignment of your account or any interest in it, including a notice of security interest.
Unauthorized Transactions and Errors
If you discover an error, forgery, alteration or other unauthorized activity involving your account, you must notify us immediately by telephone, and promptly notify your branch of account in writing of the relevant facts, including a description of the transaction or error and the identity of any suspected perpetrator. You agree to maintain a current check register and to carefully and promptly review all statements and notices we send or make available to you. If you participate in our check imaging service, your statements will be deemed to provide sufficient information about your checks and other transactions for you to determine whether there was an error or unauthorized transaction if the statements provide you with the check or transaction number, the amount, and the date of payment. You are in the best position to discover and report any errors or unauthorized transactions involving your account. If you fail to notify us within a reasonable time (not exceeding 21 days after your statement date) of an unauthorized signature, alteration, forgery, counterfeit item, or other unauthorized debit to your account, we will not be responsible for subsequent unauthorized transactions by the same wrongdoer. Without regard to care or lack of care of either you or us, if you do not discover and report an error or an unauthorized signature, alteration, forgery, counterfeit item, or other unauthorized debit to your account within 60 days after the date of your statement or the date the information about the item or transaction is made available to you, whichever is earlier, you are precluded from asserting the error or unauthorized transaction against us. If you claim a credit or refund because of an error or unauthorized transaction, you agree to provide us with a declaration containing whatever reasonable information we require regarding your account, the transaction and the circumstances surrounding the claimed loss. We must receive your declaration within 10 days of our request. If applicable, you also agree to make a report to the police and to provide us with a copy of the report, upon request. We will have a reasonable period of time to investigate the circumstances surrounding any claimed loss. During our investigation, we will have no obligation to provisionally credit your account, unless otherwise required by law (e.g., in connection with certain consumer electronic fund transfer services). Our maximum liability will never exceed the amount of actual damages proven by you. Our liability will be reduced: (a) by the amount of the loss that is caused by your own negligence or lack of care; (b) to the extent that damages could not have been avoided by our exercise of ordinary care; and (c) by any loss recovery that you obtain from third parties (apportioned in accordance with this provision). We will not be liable for any loss that is caused in part by your negligence if we acted with ordinary care. Unless otherwise required by law, we will not be liable for incidental, special or consequential damages, including loss of profits and/or opportunity, or for attorney’s fees incurred by you, even if we were aware of the possibility of such damages. You agree to pursue all rights you may have under any insurance policy you maintain in connection with any loss associated with your account and to provide us with information regarding coverage. Our liability will be reduced, proportionately in accordance with our responsibility for any loss, by the amount of any insurance proceeds you receive or are entitled to receive for the loss. If we reimburse you for a loss and the loss is covered by insurance, you agree to assign us your rights under the insurance policy to the extent of our reimbursement, in accordance with this provision. (Note: Different notice and liability rules apply to certain electronic fund transfers.)
Any lawsuits regarding this agreement or your account will be brought only in the state in which we opened your account or in the state in which you reside.
We may delay enforcing our rights under this agreement without losing them. Any waiver by us shall not be deemed a waiver of other rights or of the same right at another time. You waive diligence, demand, presentment, protest and notice of every kind, except as set forth in this agreement.
WITHHOLDING OF INCOME TAX
Unless you are exempt under Federal law, we are required to withhold a portion of your taxable interest and certain other payments (this is referred to as backup withholding) if: (1) you fail to supply us, under penalties of perjury, with your correct taxpayer identification number (TIN); (2) you fail to provide us with the required certified information; (3) the IRS instructs us to withhold; or (4) the IRS notifies you that you are subject to backup withholding. You must provide your TIN whether or not you are required to file a tax return and regardless of whether your account earns interest. For most individual taxpayers, the TIN is their Social Security Number. We may report interest and other payments to you to the Internal Revenue Service (IRS), along with your TIN. We may refuse to open, and we may close, any account for which you do not provide a certified TIN, even if you are exempt from backup withholding and information reporting. To avoid possible erroneous backup withholding, an exempt payee should furnish its TIN and indicate on the signature card that it is exempt. A non-resident alien or foreign entity not subject to information reporting must certify its exempt status by completing an appropriate IRS certification form (e.g., W-8 BEN). Non-resident aliens may be required to certify their exempt status every three years(or earlier upon request) to avoid backup withholding. You may be subject to civil and criminal penalties if you fail to provide us with a correct TIN or falsify withholding information. For additional information on interest reporting and withholding, contact your tax advisor or the IRS. If you don’t have a TIN or you don’t know your number, apply for one on Form SS-5, Application for Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the IRS. For this type of account;
2. Two or more individuals (joint account)
3. Custodian account of a minor (Uniform Transfers to Minors Act)
4. The usual revocable savings trust (grantor is also trustee)
5. So-called trust account that is not a legal or valid trust under state law
6. Sole proprietorship For this type of account:
7. Sole proprietorship
8. A valid trust, estate, or pension trust
10. Association, club, religious, charitable, educational, or other tax-exempt organization
11. Partnership, Limited Liability Company, or Limited Liability Partnership
12. A broker or registered nominee
13. A public entity Give the SSN of: The individual, the actual owner of the account or, if combined funds, the first individual on the account, the minor, the grantor-trustee, the actual owner, the owner. Give the EIN of the owner, legal entity, the corporation, the organization, the partnership, LLC or LLP, the broker or nominee, the public entity
WHAT NUMBER TO GIVE US/QUESTIONS OR COMMENTS
If you have any questions or comments, you can contact us at: First Bank, 600 James S. McDonnell Blvd., Hazelwood, MO 63042. 1-800-760-2265.
Note: The fees, rates and benefits described in this booklet and in the accompanying fee schedule were current as of the date of publication, but are subject to change. Prices listed are subject to sales tax wherever applicable.