BANESCO ONLINE ACCESS AGREEMENT AND ELECTRONIC FUND TRANSFER ACT DISCLOSURE
Agreement – This Agreement, which includes the Fee Schedule and Internet Banking Enrollment Application, is a contract that establishes the rules governing your electronic access to your deposit accounts at Banesco through the online banking system. By using Banesco’s online banking system, you accept all the terms and conditions of this Agreement. Please read it carefully.
Definitions – As used in this Agreement, the words “we”, “our”, “us”, and “BANK” mean Banesco; “you”, and “your” refer to the account holder authorized by the BANK to use the SYSTEM under this Agreement and anyone else authorized by that account holder to access Account funds or information through the SYSTEM; “SYSTEM” means the operating system, including the Web Site, used by the BANK to provide Online Banking Services; “Web Site” means the BANK’s site on the World Wide Web; “Account” means a deposit account that you maintain at the BANK; “Electronic Funds Transfers” means ATM withdrawals, pre-authorized transactions, point of sale transactions, and funds transfers (other than Bank-to-Bank Transfers) to and from your Accounts using the SYSTEM; “Bank-to-Bank Transfer” means a transfer of funds from an Account at the BANK to an account at another financial institution; “Transfer” means an Electronic Funds Transfer or a Bank-to-Bank Transfer; “PIN” means a four-digit personal identification number designated by you; “Access Code” means your login ID and password and, for Bank-to-Bank Transfers, also includes your PIN; “Online Banking Services” and “Services” mean the services provided pursuant to this Agreement; and “business days” means Monday through Friday excluding holidays.
What this Agreement Covers – This Agreement governs your access to and use of the SYSTEM. The Accounts you access through the SYSTEM are also subject to the terms and conditions contained in the BANK’s account-opening documentation, as modified from time to time (the “Deposit Agreements”)
Access – To use the SYSTEM, you must have at least one checking Account at the BANK, access to an Internet service, and an e-mail address. Once we have received your signed Internet Banking Enrollment Application (“Enrollment Form”), and verified your Account information, we will send you confirmation by postal mail of our acceptance of your enrollment, along with your assigned login ID and temporary password. When you first log in to the SYSTEM with your ID and password, you will be asked to review and accept the Banesco BANK Privacy Statement and this Agreement, which is a requirement before you will be able to begin using the Services. The SYSTEM can be used to access only the Accounts which you have designated for access by the SYSTEM in your Enrollment Form. You can add or delete any of your Accounts from this Agreement by completing a new Enrollment Form. We undertake no obligation to monitor transactions through the SYSTEM to determine that they are made on behalf of the account holder and we will not be liable for any losses suffered by you as a result of misuse by authorized users of the SYSTEM.
Online Banking Services – You can use the SYSTEM to check the balance of your Accounts, view Account histories, transfer funds between your Accounts or to accounts at other financial institutions, and view checks. The BANK, in its sole discretion, may at any time eliminate or suspend any of the Online Banking Services, modify them, or add new Services. The SYSTEM may not be used to initiate Transfers from any Account that requires joint signatures or instructions.
Hours of Access – You can use the SYSTEM seven days a week, twenty-four hours a day. However, some or all Online Banking Services may not be available occasionally due to emergency or scheduled SYSTEM maintenance, and we provide no assurance that the SYSTEM will be accessible on an uninterrupted basis. We will post notice of any extended periods of non-availability on the Web Site.
Your Password – For security purposes, you are required to change your password upon your initial login to the SYSTEM. You determine what password you will use, and your password is not revealed to us. You agree that we are authorized to act on instructions received under your password, and that you are legally bound by such instructions with the same effect as if you had signed them, irrespective of whether you or someone authorized by you transmitted the instructions. You accept responsibility for the confidentiality and security of your password and agree to change your password regularly. Upon three unsuccessful attempts to use your password, your access to the SYSTEM will be revoked. To re-establish your authorization to use the SYSTEM, you must contact us to have your password reset or to obtain a new temporary password. We recommend, for purposes of security, that you create a password that utilizes a combination of upper and lower case letters and numbers. Your password should not be associated with any commonly known personal identification (such as social security number, address, date of birth, or names of children), and should be memorized rather than written down.
Your PIN – You must designate a PIN in order to be able to initiate Bank-to-Bank Transfers through the SYSTEM. You may change your PIN at any time and are encouraged to do so at frequent intervals as a security measure. To minimize the possibility of compromise, you should avoid choosing a predictable PIN (such as one based on your birthday, street address, or telephone number or one including consecutive or repeated numbers), and you should also avoid writing the PIN down, saving it on your computer, or entering it online anywhere except on the Web Site.
Security – You understand the importance of your role in preventing misuse of your Accounts through the SYSTEM, and you agree to examine your paper statement for each of your Accounts as soon as you receive it. You agree to protect the confidentiality of your Account and Account number, and your personal identification information such as your driver’s license number, social security number, passport number, cédula number, and the like. You understand that personal identification information, by itself or together with information related to your Account, may be used to gain unauthorized access to your Account. Your Access Code is intended to provide security against unauthorized entry and access to your Accounts. Data transferred via the SYSTEM is encrypted in an effort to provide transmission security, and the SYSTEM utilizes identification technology to verify that the sender and receiver of SYSTEM transmissions can be appropriately identified by each other. Notwithstanding our efforts to insure that the SYSTEM is secure, you acknowledge that the Internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the Internet and potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing the SYSTEM, or e-mailed to and from us, will not be monitored or read by others.
Fees and Charges – You agree to pay the fees and charges for your use of the Services as set forth in the Fee Schedule in effect from time to time. You agree that all such fees and charges will be deducted from the checking Account designated as the “Primary Checking Account” on your Enrollment Form. If you close your Primary Checking Account, you must contact us immediately to designate another checking Account as your Primary Checking Account. However, in the event that you fail to immediately designate a new Primary Checking Account or if at any time there are insufficient funds in the Primary Checking Account, you agree that the BANK may deduct any fees and charges from any Account that you maintain at the BANK. You agree to pay the BANK’s standard fees and charges for any services you request which are not covered by this Agreement. You are also responsible for telephone and Internet service fees you incur in connection with your use of the SYSTEM.
Posting of Transfers; Reversal of Errors – Transfers initiated through the SYSTEM before 4:00 p.m. (Eastern Standard Time) on a business day will be posted to your Account immediately. Transfers initiated after 4:00 p.m. on a business day or initiated on a day that is not a business day will be posted at the beginning of the next business day. The SYSTEM identifies Transfers based upon the login ID of the initiating user. You agree to communicate with any other persons with authorized access to your Accounts concerning any transfers from your Accounts in order to avoid overdrafts. You authorize the BANK to initiate any reversing entry or reversing file, and to make or cause to be made the corresponding Account debit, in order to correct any mistaken credit entry made in connection with the Services.
Overdrafts (Order of Payments, Transfers, and other withdrawals) – If your Account has insufficient funds to perform all Transfers you have requested for a given business day, then: (a) Transfers involving currency disbursements, such as ATM withdrawals, will have priority; (b) Transfers initiated through the SYSTEM which would result in an overdraft of your Account may, at our discretion, be cancelled; and (c) in the event a Transfer initiated through the SYSTEM which would result in an overdraft of your Account is not cancelled, overdraft charges may be assessed pursuant to the terms of the applicable Deposit Agreement.
Limits on Amounts and Frequency of Transfers – The number of Transfers and the amounts which may be transferred through the SYSTEM are limited pursuant to the terms of the Deposit Agreements and disclosures for the affected Accounts. If a hold has been placed on the deposits made to an Account from which you wish to transfer funds, you cannot transfer the portion of the funds held until the hold expires.
Periodic Statements – You will not receive a separate SYSTEM statement. Transfers to and from your Accounts using the SYSTEM will appear on the respective periodic paper statements for your Accounts. We strive to provide complete, accurate, and timely Account information through the SYSTEM (“SYSTEM Information”); however, the periodic paper statements issued by the BANK remain the official record of your Accounts and the activity in your Accounts. Accordingly, unless otherwise required by law, we will not be liable to you if any SYSTEM Information is unavailable, delayed, or inaccurate.
Change in Terms – We may change any term of this Agreement at any time. If the change would result in increased fees for any Service, increased liability for you, the elimination of any Service, or stricter limitations on the frequency or dollar amount of Transfers, we agree to give you notice in paper form at least 21 days before the effective date of any such change, unless an immediate change is necessary to maintain the security of an Account or our funds transfer system. If advance notice of the change is not required, and disclosure does not jeopardize the security of the Account or our funds transfer system, we will notify you in paper form of the change in terms within 30 days after the change becomes effective. Notices and notifications provided to you as required under this paragraph may be posted on the Web Site. We reserve the right to waive, reduce, or reverse charges or fees in individual situations. You acknowledge and agree that changes to fees applicable to specific Accounts are governed by the applicable Deposit Agreements and disclosures.
Provisions Governing Transfers – Certain types of Transfers involving debits or credits to accounts held by “consumers” (i.e., natural persons) at U.S. financial institutions such as the BANK (“EFTA Transfers”) are subject to the provisions of the Electronic Fund Transfer Act (the “EFTA”). The EFTA does not apply to corporate or other business accounts. With respect to the Services covered by this Agreement, the EFTA generally will apply to Transfers between Accounts at the BANK and may also apply to certain other types of Electronic Funds Transfers (if you are a “consumer”), but it generally will not apply to Bank-to-Bank Transfers. Bank-to-Bank Transfers and other funds transfers to which the EFTA does not apply (“Article 4A Transfers”) will be subject to Article 4A of the Uniform Commercial Code. (See the section titled EFTA Transfers below for provisions specifically applicable to EFTA Transfers and the section titled Article 4A Transfers below for provisions specifically applicable to Article 4A Transfers. Both EFTA Transfers and Article 4A Transfers are subject to all other provisions of this Agreement unless the context clearly indicates otherwise.)
EFTA Transfers – The following paragraphs apply to EFTA Transfers involving your Accounts: Errors or Questions – In Case of errors or questions about your EFTA Transfers, call or write us at the telephone number or address listed on the “location” page of the Web Site, as soon as you can, if you think your paper statement or receipt is wrong or if you need more information about a Transfer listed on your paper statement or receipt. We must hear from you no later than 60 days after we sent the FIRST paper statement on which the problem or error appeared. When you contact us: (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 or by e-mail, we will require that you send us your complaint or question in writing by postal mail or fax 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 it takes us to complete our investigation. If we ask you to put your question in paper writing and we do not receive it within 10 business days, we may not credit your Account. For errors involving a new Account (one in which the transaction in question occurred within 30 days after the first deposit), a point-of-sale transaction, or a foreign-initiated transaction, we may take up to 90 days to investigate your complaint or question. In the case of a new Account, we may take up to 20 business days to credit the Account for the amount you think is in error. We will send you the results within three business days after we finish our investigation. If we decide that there was no error, we will send you a written explanation and will debit your Account to reverse any provisional credit we have made. You may ask for copies of the documents that we used in our investigation.
Our Liability for Failure to Make a Transfer – If we do not complete a Transfer to or from your Account on time or in the correct amount, according to our agreement with you when you have properly instructed us to do so, we will be liable to you for your losses or damages caused as a result. However, there are some exceptions. We will NOT be liable for any indirect, incidental, special, or consequential damages in connection with our failure to make a Transfer, including loss of profits, revenue, or data, whether in an action in contract or tort or based on a warranty theory. We will also NOT be liable, for instance: (1) If through no fault of ours you do not have enough money in your Account to make a Transfer. (2) If a legal order directs us to prohibit withdrawals from the Account. (3) If your Account is closed or if it has been frozen. (4) If the Transfer would cause your balance to go over the credit limit of an established line of credit or the credit limit for any credit arrangement set up to cover overdrafts. (5) If you or anyone authorized by you, commits any fraud or violates any law or regulations. (6) If any electronic terminal, telecommunication device, or any part of our funds transfer system is not working properly and you knew about the problem when you started Transfer. (7) If you have not properly followed the on-screen instructions for using the SYSTEM. (8) If circumstances beyond our control (such as fire, flood, or interruption in telephone service or other communication lines) prevent the Transfer, despite reasonable precautions that we have taken. (9) If your losses are not a result of our gross negligence or willful misconduct.
Your Liability for Unauthorized Transfers – CONTACT US AT ONCE if you believe your password has been lost, stolen, used without your authorization, or otherwise compromised, or if someone has transferred or may transfer money from your Accounts without your permission. You could lose all the money in your Accounts (plus your maximum overdraft line of credit, if any). An immediate telephone call to us is the best way to reduce any possible losses. If someone used your password without permission and you contact us within two business days after you learn of the loss, theft, compromise, or unauthorized use, you can lose no more than $50. If you do NOT contact us within two business days after you learn of the loss, theft, compromise, or unauthorized use of your password, and we can prove that we could have stopped someone from using your password to access your Accounts without your permission if you had told us, you could lose as much as $500. Also, if your paper statement shows Transfers that you did not make, contact us at once. If you do not tell us within 60 days after the paper statement was mailed, you may not get back any money you lose through transactions made after the 60-day time period if we can prove that we could have stopped someone from taking the money if you had told us in time. If a good reason (such as a long trip or hospital stay) kept you from telling us, we will extend the time periods described above.
Article 4A Transfers – The following paragraphs apply to Article 4A Transfers involving your Accounts: Authorization. Upon receipt of requests for Transfers transmitted through the SYSTEM (each, a “Payment Order”), the BANK is authorized to transfer funds from any Account specified in the Payment Order (a “Sending Account”) to any other account specified in the Payment Order (a “Receiving Account”) and to charge to the Sending Account the amount of the Payment Order and any applicable fees and charges.
Unauthorized Use of Access Code. You are responsible for the Access Code, and we will have no liability for losses occasioned by unauthorized use of the Access Code to issue Payment Orders.
Security Procedure. By executing this Agreement, you have selected use of the Access Code (i.e., your login ID and password in combination with your PIN) as the security procedure to authenticate and initiate, amend, or request cancellation of Payment Orders through the SYSTEM (the “Security Procedure”). All Payment Orders through the SYSTEM must be given in accordance with the provisions of this Agreement and in compliance with the procedures for using the SYSTEM described in any user materials we may provide to you.
You agree that the Security Procedure is a commercially reasonable method of providing security against unauthorized Payment Orders, in light of your circumstances, and you acknowledge that you have freely and voluntarily elected to utilize the SYSTEM to initiate Payment Orders and designated the Security Procedure from among the various procedures offered by us (which afford differing degrees of security). You agree to assume all risks associated with using the Security Procedure (including, without limitation, risk of unauthorized use or compromise of the Security Procedure) and all damages, costs, expenses, losses, and liabilities resulting from any failures of the Security Procedure. You also agree to notify us immediately of any compromise or suspected compromise of the integrity of the Security Procedure.
A Payment Order initiated through the SYSTEM shall, when received by us, be effective as your Payment Order and shall bind you, whether or not actually authorized by you and regardless of the actual identity of the transmitter thereof, if such Payment Order is accepted by us in good faith and in accordance with the Security Procedure, and shall be deemed conclusively correct as to amount.
We may, in our sole discretion, use any means to verify Payment Orders in addition to the Security Procedure, and we also may, in our sole discretion, decline to execute any Payment Order.
Duty to Report Discrepancies or Errors. Not more than 30 days after the mailing or delivery of a statement or 30 days after the mailing or delivery of an advice of a Transfer effected pursuant to a Payment Order (whichever occurs earlier), you must examine it and immediately notify us of any discrepancy or error therein. Your failure to notify us of any discrepancy or error within such 30-day period will relieve us of any interest liability with respect to the Transfer. Your failure to notify us of any discrepancy or error within one year of the mailing or delivery of such statement or advice will relieve us of any liability for any Transfer reflected in the statement or advice.
Amendment or Cancellation. If you seek to amend or cancel any Payment Order, such amendment or cancellation must be received by us at a time and in a manner affording us a reasonable opportunity to act on the amendment or cancellation before we act on the Payment Order. If you request us to reverse a Transfer previously effected pursuant to a Payment Order, we will take such actions as we deem reasonable (in our absolute discretion) to reverse the Transfer, subject to our customary fees and charges and to your providing us satisfactory assurances of payment of any and all costs and expenses which we might incur in taking such actions. We do not, however, by undertaking any such actions, guaranty that we will reverse a Transfer, nor do we otherwise accept responsibility for any amounts transferred prior to our receipt of an amendment or cancellation of a Payment Order as provided above.
Effect of Separate Funds Transfer Agreement. If you have executed, or execute in the future, a separate Funds Transfer Agreement with us which is inconsistent in any respect with the provisions of this Article 4A Transfers section, the provisions of this section will control as to any Article 4A Transfers effected through the SYSTEM and the provisions of the separate Funds Transfer Agreement will control as to Transfers effected in any other manner. Disclaimer of Warranty and Limitation of Liability – We make no warranty of any kind, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, in connection with the Online Banking Services provided to you under this Agreement. We do not and cannot warrant that the SYSTEM will operate without errors, or that any or all of the Services will be available and operational at all times. We will be responsible only for performing the Services expressly provided for in this Agreement, and will not be liable, except as provided by applicable law, for any errors, delays, or unauthorized Transfers or other transactions or actions so long as we have acted in accordance with the terms and conditions set forth in this Agreement. We will not be liable for any decision, in our sole discretion, not to effect a Transfer, nor will we be liable if you fail to report any error or discrepancy reflected in a statement, receipt, or advice as required by this Agreement or any applicable disclosure or to report any breach of confidentiality or compromise of your Access Code. In no event will we or any of our officers, directors, employees, agents, or contractors be liable to you for indirect, consequential, special, punitive, or exemplary damages (including loss of profits, revenue, data, or use by you or any third party), whether in an action in contract or tort or based on a warranty, even if we have been advised of the possibility of such damages. Except to the extent required otherwise by applicable law, we also will not be responsible for any loss, damage, liability, or claim: (i) arising, directly or indirectly, from any error, delay, or failure in performance of any of our obligations under this Agreement which is caused by fire or other natural disaster, weather conditions, strike, civil unrest, acts of terrorism, inoperability of the SYSTEM or any communications facilities, war or other hostilities, interference of civil and/or military authorities, restrictions imposed by any government or governmental agencies, or other events or circumstances beyond our reasonable control; (ii) arising in any way out of the installation, use, maintenance, or operation of your computer hardware equipment or software or any Internet access services, from your failure to exercise reasonable care to prevent compromise of your password or the confidentiality of you Account information, from your intentional disclosure of your password or any Account information to any person, from any dishonest, fraudulent, criminal, malicious, or reckless act or omission on your part, from any misuse by any person of the facilities or services of an internet service provider or other provider of telecommunications services (including, without limitation, the use or reproduction of malicious software such as computer viruses, trojan horses, and worms), or from your breach of any provision of this Agreement, the Deposit Agreements, or any other applicable document; or (iii) exceeding the aggregate amount paid by you for the Services.
Intellectual Property – The SYSTEM and its contents are the exclusive property of the BANK and its suppliers and are protected under applicable U.S. and international intellectual property laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as otherwise expressly provided herein), create new works from, distribute, perform, display, or in any way exploit any of the content of the SYSTEM or of the Web Site, or any related software, in whole or in part. Trademarks, service marks, logos, graphics, sounds, or images on the SYSTEM and the Web Site may not be reproduced or distributed unless expressly permitted by the BANK. You may not use the SYSTEM or any Service in any manner that would be illegal, immoral, or a violation of any federal, state, or local law or ordinance.
Products and Services Availability – The SYSTEM can be accessed from countries all over the world and may contain references to services, programs, and products of the BANK that have not been announced or authorized in your jurisdiction. These references do not imply that the BANK intends to announce or make available such services, programs, or products in your country. Not all products or services that may be described are available in all countries, and nothing on the SYSTEM or the Web Site constitutes an offer or solicitation of these products or services.
Third-Party Web Sites – The SYSTEM and the Web Site may provide links to third-party web sites, which are not under the control of the BANK. The BANK makes no representations about third-party web sites. When you access a non-BANK web site, you do so at your own risk. The BANK is not responsible for the reliability of any data, opinions, advice, or statements made on third-party web sites. The BANK provides these links merely as a convenience. The inclusion of such links does not imply that the BANK endorses, recommends, or accepts any responsibility for the content of such web sites.
Third-Party Products and Services – The BANK’s web site may mention third-party products and services for informational purposes. The BANK makes no recommendations or endorsements about third-party products and services. REFERENCES TO THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED BY BANK “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT- ABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
Your Right to Terminate – You may terminate this Agreement at any time by providing us with written notice by postal mail or fax. Your access to the SYSTEM will be suspended within three business days of our receipt of your notice of termination. You will remain responsible for all outstanding fees and charges incurred prior to the date of termination.
Our Right to Terminate – You agree that we may terminate this Agreement or limit your access to the SYSTEM and the Services for any of the following reasons: (1) Without prior notice if you have insufficient funds in any of your Accounts. Your access may be reinstated, in our sole discretion, once sufficient funds are available to cover any fees, pending Transfers, and debits. (2) Upon three business days notice, if you do not contact us to designate a new Primary Checking Account immediately after you close your Primary Checking Account. (3) Upon reasonable notice, for any other or no reason, in our sole discretion.
Effect of Termination – If this Agreement is terminated, no Transfers will be made through the SYSTEM after the date of termination, including any Transfers scheduled in advance or pre-authorized recurring Transfers.
Communications between BANK and You – Unless this Agreement provides otherwise, you can communicate with us in any one of the following ways: Telephone – During the Bank’s business hours (Monday-Thursday 8:30 a.m. to 4:30 p.m. and Friday 8:30 a.m. to 6:00 p.m.), you can contact us by telephone at (786) 552-0524, Facsimile -You can contact us by fax at (786) 552-0554, Electronic Mail – You can email us at email@example.com, or Postal Mail -You can write to us or visit us at: Banesco BANK Operations Manager 150 Alhambra Circle, Suite 100 Coral Gables, Florida 33134
Miscellaneous – The terms and conditions of the Deposit Agreements and disclosures for each of your Accounts, as well as your other agreements with BANK, continue to apply notwithstanding anything to the contrary in this Agreement. This Agreement is also subject to applicable federal laws and the laws of the State of Florida (except to the extent this Agreement can and does vary such rules or laws). If any provision of this Agreement is found to be unenforceable, all remaining provisions will continue in full force and effect. The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions. Any waiver (express or implied) by either party of any default or breach of this Agreement must be in writing and shall not constitute a waiver of any other or subsequent default or breach. You may not assign this Agreement. This Agreement is binding upon your heirs, successors, and assigns and the BANK’s successors and assigns. Certain of the obligations of the parties pursuant to this Agreement that by their nature would continue beyond the termination, cancellation, or expiration of this Agreement shall survive termination, cancellation, or expiration of this Agreement. This Agreement, together with the Enrollment Form and Fee Schedule, constitutes the entire agreement between you and the BANK by which the BANK offers and you accept Online Banking Services. Notwithstanding the existence of other account and customer relationship agreements between you and the BANK which are not superseded by this Agreement, you and the BANK acknowledge and represent that no other understandings or agreements relative to on-line banking services exist in writing or by implication, other than as expressly contained herein. Any legal action or proceeding relating to this Agreement or the Services (an “Action”) must be brought in a federal or state court sitting in Miami-Dade County, Florida, and you agree that any Action may be heard and determined in any such court. To the extent you may effectively do so, you hereby waive the defense of an inconvenient forum to the maintenance of any Action in Miami-Dade County, Florida. You and the Bank irrevocably waive the right to a trial by jury in any Action.