First-Citizens Bank & Trust Company
Welcome to First Citizens Online Banking
First-Citizens Bank & Trust Company is pleased to offer you the many benefits of First Citizens Online Banking. Using your personal computer and the Internet, you will be able to obtain information concerning your accounts, transfer funds between your accounts, arrange for the payment of your bills, and conduct other banking transactions as described in this Agreement, subject to the limitations of your software.
In this Agreement, "First Citizens," "Bank," "we," "our," and "us," refer to First-Citizens Bank & Trust Company. "You," and "your" refer to the individuals, corporations, partnerships, limited liability companies, and sole proprietorships subscribing to or using First Citizens Online Banking. "First Citizens Online Banking" means the Online Banking service provided by First Citizens. "Bill Payment Service" and "Service" refer to the electronic bill payment system available through First Citizens Online Banking. "Electronic message" means an electronically transmitted message, which allows the text to be displayed on equipment in the recipient's possession (such as a modem-equipped personal computer). An electronic message is considered written notice for purposes of this Agreement. "Primary Account" refers to the account you have designated as the account from which your applicable First Citizens Online Banking service charges will be paid. "Account" or "accounts" refer to your accounts that may be accessed through First Citizens Online Banking. "Access Password" or "password" is the Personal Identification Number (or PIN) which has been assigned to you or which you select to access First Citizens Online Banking. "Customer ID" means your ATM/Check Card number or a number assigned to you by us. "Payee" is a person, business, or any other entity to which you direct payments through the Bill payment service. "Agent" has the same meaning as used in the First Citizens Deposit Account Agreement. "Payment instructions" are instructions you give us through First Citizens Online Banking to make a payment on your behalf from funds in your checking account using the Bill Payment Service. "Transfer instructions" are instructions you give us through First Citizens Online Banking to transfer funds between accounts you can access through First Citizens Online Banking. "Business day" means any day Monday through Friday, except bank holidays. "First Citizens Online Banking" means First Citizens Online Banking accessed over an Internet connection and viewed via a web browser.
Our Agreement with You
Your use of First Citizens Online Banking is governed by this Agreement, our Fee Schedule and Interest Disclosures, your application for First Citizens Online Banking and Bill Payment Service, any instructions we provide you on using First Citizens Online Banking, and any other agreements applicable to the deposit or loan accounts you access through First Citizens Online Banking, including our Deposit Account Agreement, any applicable overdraft protection agreement, and any other applicable loan agreement, as they all may be amended from time to time. Any use of First Citizens Online Banking by you, or by anyone you authorize, is your acknowledgment that you have received this Agreement, understand it, and agree to be bound by it. In the event of any conflict between this Agreement and any other agreement governing your deposit or loan accounts, this Agreement will control.
Access to First Citizens Online Banking
To use First Citizens Online Banking, you need a computer, with modem or equivalent communications connection device, Internet service with a service provider of your choice, your password, and your Customer ID. We will assign you a password to use the first time you sign on to First Citizens Online Banking. At the time you first sign on, you must then select a new password. You may change your password at any time, but not more than once on the same day. We will require that you change your password periodically. It is your responsibility to remember your password; we do not maintain a record of it. To use First Citizens Online Banking, you also need a web browser meeting the minimum requirements described below, which may change from time to time.
To access and retain communications from us regarding Online Banking, your computer (hardware and software) must meet the following requirements.
If we upgrade the minimum system requirements, we will notify you of the revised requirements and you are asked to confirm your consent to receive electronic disclosures; you will have the right to withdraw your consent by following the process described above.
Use of Your Password
When you or any authorized user signs on to First Citizens Online Banking using your Customer ID and password, you authorize us to follow the instructions we receive relating to your accounts and to charge and credit your accounts according to those instructions. Since your password is the principal security measure to protect access to your accounts, you agree that you will not give your password or make it available to any unauthorized person. If you do give your password or make it available to another person, you authorize that person to access your accounts through First Citizens Online Banking and to give us First Citizens Online Banking instructions relating to your accounts as an authorized user. You also authorize us to comply with those instructions even if that person exceeds your authorization.
Except to the extent prohibited by applicable law or regulation, you will be deemed to have expressly authorized any First Citizens Online Banking transaction 1) initiated by you, at your direction, or with your consent (whether expressed or implied), 2) initiated by an agent with respect to any account which you may access through First Citizens Online Banking, 3) initiated by a member of your household, whether or not related to you, 4) initiated by any person (or that person's agent) who is the owner or co-owner of any account which you may access through First Citizens Online Banking, 5) which results in the transfer of funds between accounts you may access through First Citizens Online Banking, even if subsequent transfers out of the accounts benefit someone else, 6) which is to or for your benefit (for example, the payment of a debt for which you are partially or fully liable), or 7) which you contend is unauthorized, unless you cooperate fully with us in our investigation of the transaction, assign to us your right of recovery against the wrongdoer if we reconstitute your account, and cooperate fully with us in the recovery of any loss we sustain and the prosecution of any wrongdoer. Any person initiating the foregoing transactions will be deemed an authorized user except to the extent prohibited by applicable law or regulation.
If You Believe Your Password is Lost, Stolen or Used Without Your Authority
Please tell us AT ONCE if you believe your password has been lost, stolen, or used without your authority. Telephoning is the best way of keeping your possible losses down. Call us at 1-888-612-4444, or write First Citizens, Customer Contact Center, 994017, PO Box 29, Columbia, SC 29202. You could lose all the money in your account, plus the maximum amount of any line of credit linked to your account. If you believe your password has been lost or stolen, and you tell us within two business days after you learn of the loss or theft, you can lose no more than $50 if someone used your password without your permission to make an unauthorized electronic fund transfer (as defined by federal law). If you do NOT tell us within two business days after you learn of the loss or theft of your password, and we can prove we could have stopped someone from using your password without your permission if you had told us, you could lose as much as $500. Losses could include not only money in your account, but also advances on any credit line associated with your account.
Reliance on Your Instructions
We may rely and act on instructions we receive through First Citizens Online Banking from you, from anyone to whom you gave your password or made your password available, from anyone acting at your direction or with your consent (express or implied), from anyone acting with authority from you (express or implied), from any person who is an agent with respect to any account which you may access through First Citizens Online Banking, and from any co-owner or other person having an interest in the account. All such instructions will be considered as having been given to us directly by you, and shall have the same authority as your written signature in authorizing us to comply with the instructions.
Services Available Through First Citizens Online Banking
You may use First Citizens Online Banking to conduct the following account transactions: 1) obtain information concerning your deposit and certain of your loan accounts, 2) transfer funds between certain of your deposit accounts, 3) transfer funds from your deposit accounts to make payments on certain loan accounts with us, 4) transfer funds from your Home Equity Line of Credit to certain deposit and loan accounts or to make payments on certain loan accounts with us, 5) request us to stop payment on checks, 6) reorder checks, and 7) request copies of checks/withdrawals and statements and 8) direct us to make payments to third parties from your checking account using First Citizens Online Banking Bill Payment Service. Your use of First Citizens Online Banking to conduct these services is subject to the terms and limitations stated in this Agreement and the applicable instructions we provide you. We may introduce additional First Citizens Online Banking services from time to time and will notify you, as these new services become available. By using any new First Citizens Online Banking services when they become available, you agree to be bound by this Agreement, any amendments to this Agreement regarding the new services, and any additional rules, which we provide you concerning the new services. In addition, we may change or remove services as we revise or update First Citizens Online Banking; in this case, we may terminate or modify this Agreement as to prior versions of First Citizens Online Banking and limit access only to revised or updated services.
Accounts You May Access
You may use First Citizens Online Banking to obtain balance information and transaction histories for certain deposit and loan accounts. Balance information and transaction histories reported through First Citizens Online Banking may not include transactions, which have occurred since the close of business on the previous banking day. Balance information shown for your deposit accounts may include Current Balance and Available Balance. These balance amounts may differ. The Available Balance provides the most current balance information. Transaction history information is available for your current statement cycle plus the previous two statement cycles.
Transfers Between First Citizens Accounts
First Citizens Online Banking permits you to transfer funds from a deposit account or from your home equity line of credit account to any other deposit account, a line of credit or credit card, and installment loans you can access through First Citizens Online Banking. The "transfer date" is the date you enter for the transfer of funds from one account to another. Transfer of funds from a deposit account or HELOC to another deposit account will generally be processed simultaneously on the transfer date regardless of the day or time of the transfer. For example, if you transfer funds from Account A to Account B, the funds will be debited from Account A and credited to the available balance in Account B simultaneously on the transfer date. The funds will be available immediately upon the transfer for withdrawal from Account B through an ATM or debit card transaction or at a teller window, and will also be available to honor checks or other items presented for payment against Account B in the nightly processing following the transfer. Transfers of funds from a deposit or HELOC to a loan account will be processed as follows: 1) the transfer will be debited from your deposit account/HELOC when we execute the transfer on the transfer date (regardless of the day or time we receive your instructions); and 2) the transfer will be credited to your loan account during our nightly processing of the loan account. The transfer will be credited to your loan account on the transfer date if 1) the transfer date you designate is a business day, and 2) we receive your instruction to transfer the funds to your loan account no later than 9:00 p.m. Eastern Time on the transfer date. If you designate a non-business day as the transfer date, or if we receive your transfer instructions after 9:00 p.m. Eastern Time on the transfer date, the transferred funds will be credited to your loan account as of the next business day following the transfer date. You are permitted to change or cancel any future or recurring transfer instructions you have given us using First Citizens Online Banking. To do so, you must enter your change/cancellation instructions through First Citizens Online Banking and transmit the information to us prior to 9:00p.m. Eastern Time on the transfer date.
Bill Payment Service
The Bill Payment Service feature of First Citizens Online Banking allows you to instruct us to pay bills designated by you in accordance with the instructions we provide you. Your Bill Payment Service transactions will be processed for the Bank by CheckFree Corporation ("CheckFree"), a major provider of electronic banking transaction processing services. References to "we" and "us" in this section refer to both the Bank and CheckFree. In addition to this Agreement, you may have to agree to CheckFree terms and conditions to access and/or use any of the First Citizens Online Banking services processed for the Bank by CheckFree.
a. Payment Instructions - In General. In designating a payee for bill payment, you must provide us with detailed "payment instructions," including the payee's name and address, your account number (if any) with the payee, the payment amount, the "payment date" (as defined in subsection c. below), and the frequency of payments. You authorize us to follow your payment instructions and to rely on the accuracy of all information you provide. Payment instructions we receive from you are not processed instantaneously; rather, your instructions are processed with other transactions affecting your account during our nightly processing of your account after the close of each banking day. Payment instructions received on a non-business day or after 3:00 p.m. on a business day will not be processed or considered received until the next business day. Payment will be made, and your account will be charged, according to the provisions set forth below. We reserve the right to select the method in which to remit funds on your behalf to the payee. Payment methods may include, but are not limited to, an electronic payment, an electronic to check payment, or a laser draft payment.
b. Designation of Payees. Before we can pay a bill for you, you must set up the payee on the Service. Because it may take several days to complete set-up processing, you must provide us with payment instructions for a new payee (or to reestablish a payee you previously deleted from your payee list) at least five business days before the first payment date you designate for that payee. The payment of taxes, payments into court, and payments to payees located outside the continental United States through Bill payment service are prohibited, whether or not the Bill payment service executes the transaction. You will be solely responsible for any claims or damages resulting from your scheduling of these types of payments or from any payments to prohibited payees, whether or not we refuse to make the payment or the payment is delayed or improperly processed. We reserve the right to refuse to pay any person or entity to which you may direct a payment. We will notify you promptly if we decide to refuse to pay a person or entity designated by you; however, we are not required to notify you regarding a prohibited payee or any payment prohibited under this Agreement.
c. Payments. The "payment date" that you enter with your payment instructions is the date you want the payee to receive your payment and also is the date we will charge your account for the amount of the payment. If your payment is processed as a check, the date your account is charged is the date the payment is posted. We must receive your payment instructions for a particular payment at least four business days before the payment date you designate. If we receive your payment instructions less than four business days before the payment date, we may not make the payment. In order to ensure adequate time for the payee to receive the payment, the "payment date" you enter must be (1) at least four business days after the date you enter your payment instructions and (2) no later than the date you want the payee to receive the payment ("the payment due date"). Some payees require payment to be received before 5 p.m. on the payment due date; in this case, the payment date you enter must be at least one business day before the actual payment due date. The payment date you specify must be a business day. If the actual payment due date falls on a non-business day, you must select a payment date that is at least one business day before the payment due date. If you specify a payment date that is not a business day, we will consider the immediately previous business day as the payment date, and we will charge your account on that date. The payment date you enter with your payment instructions should be prior to any late date or grace period. If your payment instructions do not meet all of these requirements, you bear the risk that the payee will not receive your payment by the payment due date, and you will be responsible for any and all late fees, penalties, finance charges and other actions taken by the payee.
d. Bill Pay Account. All bills paid through the Bill payment service must be paid from the checking account you have designated. You authorize us to charge your checking account according to your payment instructions. You agree that you will have funds available in your checking account for each payment by 3:00 p.m. on the payment date you have designated in your payment instructions. If you do not have sufficient funds in your designated account to cover the transaction, the transaction may not be completed or, in our discretion and without notice to you, we may complete the transaction with the payee and make additional attempts to debit your account for the amount plus associated service fees and charges or otherwise seek recovery of the amount and service fees and charges from you. In either event, you are responsible and agree to reimburse us for all insufficient funds and related service fees and charges, and you remain liable to us for all funds we have advanced plus applicable service fees and charges until we are paid in full. If we are unable to complete the payment transaction according to your payment instructions for other reasons (such as incomplete or inaccurate information), the transaction will not be completed. We will attempt to notify you by e-mail or US mail, but we shall have no obligation or liability if we do not complete a transfer or payment because there are insufficient funds in your account to process the transaction or because of incomplete or inaccurate information, and you are responsible for either making alternate arrangements for the payment or rescheduling the payment through Bill Payment services.
e. Limitations. We are only responsible for exercising ordinary care in processing and sending payments upon your authorization in accordance with this Agreement. We will not be liable in any way for damages you incur if you do not have sufficient funds in your account to make the payment on the processing date, for delays in mail delivery, for changes to the payee's address or account number unless you have advised us of the change sufficiently in advance, for the failure of any payee to correctly account for or credit the payment in a timely manner, if you have not provided correct payment information, if you have been advised that the payment processing center is not working properly but you execute a transaction anyway, or for any other circumstances beyond our control.
f. Warranty Disclaimer. The Bill payment service is provided "AS IS" without any warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
Security Alerts are sent to you automatically when changes are made online to your email address, Customer ID, Password, or answers to Security Questions. Security Alerts also are sent when we suspend or terminate access to your Online Banking account. We will send Security Alerts to you at the Profile email address we have for you in our records and to your Alerts Inbox, which you will see when you log in to your Online Banking account. Security Alerts are included in our Online Banking service and are not optional.
Account Alerts are sent to you only if you complete our Account Alerts enrollment process. You must enroll online for Account Alerts and will be prompted to select the accounts and types of transactions for which you will receive the Alerts. Examples of transactions you may select for Account Alerts include: drops in your account balance below your specified threshold, debits and/or credits above or below your specified amounts, insufficient funds in your account to cover a check or electronic debit that is presented for payment to your account, payments of checks or electronic debits that overdraft your account, and daily balance summaries. When you enroll for Account Alerts you will be asked to designate email address contact points to which the Account Alerts will be delivered ("Contact Points"). In addition to your designated Contact Points, your Account Alerts will also be delivered to your Alerts Inbox within Online Banking. Your enrollment for Account Alerts constitutes your consent to our delivery of Account Alerts to your designated Contact Points. You are responsible for notifying us of any changes to your email address and Contact Points, and we will have a reasonable time to make such changes (but no less than two (2) business days). You may make additions, deletions, and modifications to your Alerts selections at any time. To modify or discontinue your Account Alerts, log in to your Online Banking account and change your selections from the Set Alerts page.
General Information about Alerts
Alerts are available only for your accounts that may be accessed through Online Banking. We will not include your full account number in an Alert; however, Alerts may contain our name and certain other information about your accounts depending upon the Alert, such as information pertaining to your account balances, debits or credits to your account, or insufficient funds. Anyone with access to your email may be able to access the contents of the Alerts. It is your responsibility to secure your computer, secure and protect your Customer ID and Password and otherwise secure and protect your email from unauthorized access, and provide us with timely and accurate information about your email address and designated Contact Points, in order to protect the confidentiality of your information. Alert balances will not reflect pending transactions, and deposits mentioned in an Alert may not be available for immediate withdrawal. If you require additional details about a transaction contained in an Alert, you may log in to Online Banking to view transaction information or send us a secure email through Online Banking. You may also contact us at 1-888-612-4444 from 7 a.m. - 10 p.m. Monday thru Friday and 9 a.m. - 4 p.m. Saturday. We do not guarantee the delivery or accuracy of the contents of Alerts. We shall not be liable for any (a) delay, failure to deliver, or misdirected delivery of an Alert; (b) errors in the content of an Alert; or (c) actions taken or not taken by you or any third party in reliance on an Alert. We may change, suspend or terminate the Alerts service at any time without prior notice.
For savings and money market accounts, federal regulations limit the total of third party transfers (such as checks, automatic drafts and debit card purchases), pre-authorized transfers and online or telephone transfers to 6 per statement cycle. Withdrawals in person and transfers for purposes of repaying a First Citizens loan are unlimited. For security reasons, we may impose additional limits on the frequency, number, and dollar amounts of transactions you can perform using First Citizens Online Banking. In addition, as noted herein, we reserve the right to refuse to pay any person or entity to which you may direct a payment through First Citizens Online Banking. We will notify you promptly if we decide to refuse to pay a person or entity designated by you; however, this notification is not required if you direct us to make any payment which is otherwise prohibited under your agreement with us.
If your use of First Citizens Online Banking overdraws your account and the overdraft is not covered by an approved line of credit relating to the overdrawn account, you agree to make immediate payment to us of the amount of any such overdraft, together with related service charges. You also agree that we may charge the overdraft and related service charges against your other accounts with us to the extent permitted by law or by your Deposit Account Agreement.
Your Right to Stop Payment and Your Right to Receive Notice of Varying Amounts.
a. Stop Payment Procedure. If you have told us in advance to make regular payments or transfers out of your account, you can stop any of these payments or transfers by following the procedures outlined in this document. We begin processing bill payment instructions approximately four business days before the designated payment date. You may change or cancel any bill payment instructions you have given us using Online Banking (you will not be subject to our normal stop payment order fees) if you enter and transmit, through Online Banking, your change or cancellation instructions and we receive those instructions before 3:00 p.m. eastern time at least four business days before the designated bill payment date. Once the Bill Payment Service has started processing your payment, the payment cannot be changed or cancelled, and you must submit a stop payment request in the manner provided in the Service or as indicated in the Rules and Regulations for Checking, Savings and Money Market accounts. You may change or cancel the instructions you have given us to transfer funds from one of your accounts to another using Online Banking if you enter and transmit through Online Banking your change or cancellation instructions at any time prior to the time we actually execute your transfer instructions.
b. Failure to Stop Payment of Pre-Authorized Transfer. If you order us to stop one of these payments within the applicable time frame indicated above, and we do not do so, we will be liable for your losses or damages due to our failure except as otherwise limited in this Agreement.
One of the features of First Citizens Online Banking is electronic mail (First Citizens Online Mail), which allows you to communicate with us electronically. If you send us an electronic mail message, we will be deemed to have received it on the following business day. We will be diligent in responding to your e-mail. Do not rely on e-mail if you need to communicate with us immediately, for example, to report an unauthorized transaction from one of your accounts or to stop a pre-authorized payment. If you would like a secure way to contact us through First Citizens Online Banking, use the electronic forms provided with First Citizens Online Mail. First Citizens Online Mail messages sent to the Bank are the property of the Bank and we reserve the right to delete such messages from the system from time to time.
Fees and Charges
You agree that we may charge your checking or savings account for all fees and charges relating to First Citizens Online Banking in accordance with the applicable fee schedule. We reserve the right to change applicable fees and charges at any time. We will provide you with any notice required by law of any changes to our fees and charges. If your Primary Account does not have a sufficient balance to pay all applicable fees and charges due, we may exercise our right of setoff against any of your other accounts as provided by law or as indicated in the Rules and Regulations for Checking, Savings and Money Market accounts. Any applicable fees will be charged regardless of whether you use a service during the billing cycle.
Termination or Discontinuation
You may terminate or discontinue First Citizens Online Banking by giving us at least 10 days prior written notice. You may call us at 1-888-612-4444, or you may mail your notice to First Citizens, Customer Contact Center, PO Box 29, Columbia, S.C., 29202. You will not be entitled to the refund of any prepaid fees or charges. You must tell us your name, address, whether you are discontinuing First Citizens Online Banking, Bill payment service or both, and the effective date to stop the service. Note: First Citizens Online is required for Bill Payment Services. When Bill Payment is terminated, any prescheduled bill payments made through First Citizens Online Banking will also be terminated. Your final charge for the Bill Payment service will be assessed at the end of the month. If you terminate a Bill Payment service, you authorize us to continue making fund transfers, bill payments or other transactions you had previously authorized until we have a reasonable opportunity to act upon your termination notice. If you are not paying a monthly service charge for the service, we may convert your account to inactive status if you do not sign on to the service or have any transactions scheduled through the service during any consecutive ninety day period. If your account is considered inactive, you must contact us to have the service activated before you will be able to schedule any transaction through the service. We can refuse First Citizens Online Banking services to anyone. We may terminate your First Citizens Online Banking services at any time without prior notice and with or without cause. If more than one person can access an account through First Citizens Online Banking, we reserve the absolute right to terminate all First Citizens Online Banking access to the account upon the request of the account owner, any account co-owner, or any other person authorized to access the account. In addition, CheckFree may terminate your access to the Bill payment service without prior notice to you, with or without cause. Neither termination nor discontinuation shall affect your liability or obligations under this Agreement, and you will remain liable for payments, transfers and other transactions in process and for the payment of any accrued fees and charges.
Any notice we give you concerning First Citizens Online Banking and/or your accounts is effective when we send you an electronic message or when we mail or deliver the notice to you at the address we have for you in our account records. Any notice we send you will be deemed to have been received by you within three days of being sent. If any of your accounts has more than one co-owner, notice to any one co-owner will be considered effective notice to all. To the extent permitted by law or regulation, you agree that we may send you by means of an electronic message any information we are required by law or regulation to provide you orally or in writing. You may request a paper copy of the information up to sixty days after receiving our electronic message.
Change of Address
You agree to notify us promptly in writing of any address change, including regular mail and electronic mail addresses. You may call us at 1-888-612-4444 or send written instructions to us at First Citizens, Customer Contact Center, PO Box 29, Columbia, SC 29202.
Joint and Several Liability
If any one or more of your deposit accounts has co-owners, each co-owner will be jointly and severally liable for any obligation, which arises from the use of First Citizens Online Banking to access the account. This joint and several liability shall extend as well to any line of credit accessed through any such account.
We may on a regular basis perform maintenance on our equipment or system, which may result in interrupted service or errors in the service. We also may need to change the scope of our services from time to time. We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided. We make no representation that First Citizens Online Banking services (including the Bill payment service) will be uninterrupted or error free. Our sole obligation to you arising out of (i) the non-availability of First Citizens Online Banking, or (ii) an interruption or delay in providing First Citizens Online Banking shall be to use commercially reasonable efforts to resume such services. THE FOREGOING SHALL CONSTITUTE OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL THE BANK OR CHECKFREE (OR ANY OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBCONTRACTORS) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF WE ARE ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF ANY COMPUTER EQUIPMENT, THE FIRST CITIZENS ONLINE BANKING SERVICE AND/OR THE BILL PAYMENT SERVICE. WE MAKE NO WARRANTY, EXPRESSED OR IMPLIED, TO YOU CONCERNING FIRST CITIZENS ONLINE BANKING, BROWSERS, INTERNET SERVICES, OR OTHER SERVICES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, EXCEPT TO THE EXTENT LIMITED OR PROHIBITED BY LAW. IN NO EVENT SHALL ANY LICENSOR OR PROVIDER OF ANY SOFTWARE OR SERVICE PROVIDED BY OR THROUGH US HEREUNDER BE LIABLE TO YOU FOR ANY ERROR, LOSS OF DATA, MALFUNCTION, OR DEFECT OF OR CAUSED BY SUCH SOFTWARE OR SERVICE. ALL SUCH SOFTWARE AND SERVICES ARE PROVIDED "AS IS."
Liability for Loss of or Erroneous Data
Each party will bear the liability or the risk of any error or loss of data, information, transactions or other losses, which may be due to the failure of their respective computer system or third party communications provider on which each party may rely. We shall have no liability to you for any damage or other loss, direct or consequential, which you may incur by reason of your use of your computer system, including but not limited to damage or loss resulting from date related problems.
You agree that we are not responsible for any electronic virus that you may encounter using First Citizens Online Banking. We encourage you to routinely scan your PC and diskettes using any reliable virus protection product to detect and remove any viruses found. Undetected or unrepaired, a virus may corrupt and destroy your programs, files and even your hardware.
Ownership of Materials
The content and information on our site is copyrighted by First Citizens Bank and the unauthorized reproduction or distribution of any portions is prohibited.
We reserve the right to amend this Agreement at any time. We will provide you with any notice required by law of any changes to the terms of this Agreement. Your use of First Citizens Online Banking after we amend this Agreement will constitute your acceptance of such changes.
You may not assign this Agreement to any other person or entity. We may assign this Agreement to any company with which we are directly or indirectly affiliated. We may also assign or delegate certain of our rights or responsibilities under this Agreement to independent contractors or other third parties.
We will not be deemed to have waived any of our rights or remedies under this Agreement unless we send the waiver to you by electronic message or we otherwise mail or deliver to you a written waiver signed by us. No delay or omission on our part in exercising any of our rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies we may have. A waiver on one occasion will not be construed as a bar or waiver of any rights or remedies on future occasions.
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without regard to its conflicts of law provisions, and applicable federal law.
As used in this Agreement, the terms "payment" and "payments" refer to payments made using the Popmoney Service. The terms "transfer" and "transfers" refer to transfers using the A2A Transfer Service. The terms "transaction" and "transactions" refer to both payments made using the Popmoney Service and A2A transfers. Other terms used in this Agreement are defined in Section 42 below.
2. Description of Services.
(b) Account-to-Account (A2A) Transfer Service. The A2A Service transfer enables you to transfer funds between a Transaction Account you hold with us, or between your Transaction Account with us and your accounts at different financial institutions. You may choose one time or recurring transfers, and choose from a variety of alerts and reminders to help you stay up to date on your transfer activity.
3. Service Providers. We are offering you the Service through one or more "Service Providers" that we have engaged to render some or all of the Service to you on our behalf. You agree that we have the right under this Agreement to delegate to Service Providers all of the rights and performance obligations that we have under this Agreement, and that the Service Providers are intended third party beneficiaries of this Agreement and are entitled to all the rights and protections that this Agreement provides to us.
4. Amendments. We may amend this Agreement and any applicable fees and charges for the Service at any time by posting the changes on the Site. The changes will be effective at the time they are posted unless a delayed effective date is expressly stated. Any use of the Service after a notice of change will constitute your agreement to such changes. Further, we may, from time to time, revise or update the Service and/or related applications or material, which may render all prior versions obsolete. Consequently, we reserve the right to terminate this Agreement as to all prior versions of the Service, and/or related applications and material, and limit access to only the Service's more recent revisions and updates. We also reserve the right to terminate the Service in its entirety.
5. Our Relationship with You. We are an independent contractor for all purposes, except that we act as your agent with respect to the custody of your funds for the Service. We do not have control of, or liability for, any products or services that are paid for with our Service. We also do not guarantee the identity of any user of the Service (including but not limited to Accounts and/or Receivers to which or to whom you send payments).
6. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without our prior written consent, which we may withhold in our sole discretion. We reserve the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time to any party. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties.
7. Notices to Us. Unless stated otherwise in this Agreement, you may contact us regarding the Service by mail at the address below. We may also be reached by telephone at the number below for questions and other purposes concerning the Service, but such telephone calls will not constitute legal notices under this Agreement.
8. Notices to You; Your Consent to Receive Electronic Communications.
(a) You agree that we may provide any notice to you relating to the Service by: (i) posting it on the Site, (ii) sending you an in-product message within the Service, (iii) emailing it to an email address that you have provided us, (iv) mailing it to any postal address that you have provided us, or (v) sending it as a text message to any mobile phone number that you have provided us, including but not limited to the number that you have listed in your service setup. For example, you may receive certain notices (such as notices of payment, alerts for validation and receipt of transfers) as text messages on your mobile phone.
(b) All notices by any of the above methods shall be deemed received by you at the earlier of: (i) your confirmation of receipt, or (ii) within twenty-four (24) hours after they are sent or posted, except for notice by postal mail, which shall be deemed received by you no later than three (3) business days after it is mailed. You may request a paper copy of this Agreement and any legally required disclosures, and terminate your consent to receive required disclosures through electronic communications, by contacting us as described in Section 6 above. We reserve the right to terminate the Service if you withdraw your consent to receive electronic communications.
9. Calls to You. By providing us with a telephone number (including a mobile phone number), you consent to receiving autodialed and prerecorded message calls from us at that number for non-marketing purposes. For example, we or our Service Provider may contact you in connection with validating or processing a transaction that you have requested through the Service.
10. Receipts and Transaction History. You may view at least six months of your Service transaction history by logging into your online banking account and looking at your Service transaction history. You agree to review your Service transactions by this method instead of receiving receipts or periodic statements specific to the Service transactions. Your Service transactions will also be reflected in your regular Account statements.
12. Privacy of Others. If you receive information about another person through the Service, you agree to keep the information confidential and only use it in connection with the Service.
13. Eligibility. The Service is offered only to individual residents of the United States who can form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not offered to minors. By using the Service, you represent that you meet these requirements and that you agree to be bound by this Agreement.
14. Prohibited Transactions, Communications, Activities. You agree that you are independently responsible for complying with all applicable laws in all of your activities related to your use of the Service, regardless of the purpose of the use, and all transactions you initiate, and communications you send, through the Service. We and our Service Providers have the right but not the obligation to monitor and remove communications content that we find in our sole discretion to be objectionable in any way. In addition, you are prohibited from using the Service for any transactions, communications or activities that:
(a) involve payments or transfers to or from persons or entities located outside of the United States and its territories;
(b) violate any law, statute, ordinance or regulation;
(c) involve violations of this Agreement;
(d) involve payments or transfers related to: (1) tobacco products, (2) prescription drugs and devices; (3) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (4) drug paraphernalia; (5) ammunition, firearms, or firearm parts or related accessories; (6) weapons or knives regulated under applicable law; (7) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; (8) goods or services that are sexually oriented; (9) goods or services that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (10) goods or services that defame, abuse, harass or threaten others; (11) goods or services that include any language or images that are bigoted, hateful, racially offensive, vulgar, obscene, indecent or discourteous; (12) goods or services that advertise or sell to, or solicit others; (13) goods or services that use the Site for commercial purposes of any kind other than to facilitate a transaction within the Service; (14) goods or services that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;
(e) relate to gambling, gaming and/or any other activity with an entry fee and a prize including, but not limited to, casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes;
(f) relate to transactions that (1) support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or multi-level marketing programs, (2) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (3) are for the sale of items before the seller has control or possession of the item, (4) are by payment processors to collect payments on behalf of merchants, (5) constitute money-laundering or terrorist financing; (6) are associated with the following "money service business" activities: the sale of traveler's checks or money orders, currency dealers, exchanges or check cashing, or stored value, or (7) provide credit repair or debt settlement services;
(g) involve airlines and scheduled or non-scheduled charters/jets/air taxi operators; collecting donations as a charity or non-profit organization; dealing in jewels, precious metals and stones; acting as a money transmitter or selling stored value cards; selling stocks, bonds, securities, options, futures (forex) or an investment interest in any entity or property; providing escrow services; offering online dating services; providing file sharing services or access to newsgroups; or selling alcoholic beverages; and/or
(h) are tax payments or court ordered payments.
(i) impose an unreasonable or disproportionately large load on our infrastructure;
(j) facilitate any viruses, trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;
(k) constitute use of any robot, spider, other automatic device, or manual process to monitor or copy the Service or the portion of the Site through which the Service is offered without our prior written permission;
(l) constitute use of any device, software or routine to bypass technology protecting the Site or Service, or interfere or attempt to interfere, with the Site or the Service; or
(m) may cause us or our Service Providers to lose any of the services from our internet service providers, payment processors, or other vendors.
We encourage you to provide notice to us by the methods described in Section 6 above of any violations of this Section 13. We have no obligation to research or resolve any claim resulting from a prohibited payment or transaction. All research and resolution for any misapplied, mis-posted or misdirected prohibited payments or transactions will be the sole responsibility of you and/or the Sender, and not ours. In no event shall we or our Service Providers be liable for any claims or damages resulting from or related to your violation of this Section 13 or any other provision of this Agreement.
We have the right but not the obligation to monitor for, block and/or reverse, as applicable, any of the above prohibited transactions.
We and our Service Providers reserve the right to monitor and remove any comments you post or submit through the Service.
15. Transaction Authorization.
(a) A2A Transfers. The A2A Transfer Service enables you to transfer funds: between your Account(s) that you maintain with us on the one hand, and your Account(s) that are maintained by other financial institutions, on the other hand. You represent and warrant that (i) you are either the sole owner or a joint owner of the Transaction Account and the Recipient Account, and (ii) you have all necessary legal right, power and authority to transfer funds from the Transaction Account to the Recipient Account. If you are a joint owner of the Transaction Account, Recipient Account, or both, then you represent and warrant that (i) you have been authorized by all of the other joint owners to operate such Accounts without their consent (including without limitation to withdraw or deposit any amount of funds to such Accounts or to even withdraw all funds from such Accounts); and (ii) we may act on your instructions regarding such Accounts without liability to such other joint owners. Further, you represent and warrant that the Recipient Account is located in the United States.
When we receive an A2A Transfer Instruction from you, you authorize us to debit your Transaction Account for the indicated amount, transfer the funds on your behalf to the Recipient Account designated by you, and debit your Transaction Account for any fees applicable to the transfer as set forth in the applicable Fee Schedule. If we credit the transfer amount to your Recipient Account, but the debit to your Transaction Account is returned to us for any reason, including, but not limited to, insufficient funds in the Transaction Account, you authorize us to reverse from your Recipient Account the amount of the returned debit.
(b) Popmoney Service. By providing us with names and/or telephone numbers and/or email addresses of Receivers to whom you wish to direct payments, you authorize us to follow the Payment Instructions that we receive through the Popmoney Service. When we receive a Payment Instruction from you, you authorize us to debit your sending Transaction Account and remit funds on your behalf. You also authorize us to credit your receiving Transaction Account for payments returned to us from Receivers to whom you sent payment(s).
Receivers of payments who are not already registered for the Popmoney Service will be invited to register. Once registered, you as a Receiver authorize us to credit your Transaction Account for payments remitted to you on behalf of a Sender without further approval from you. You agree that we will not be liable in any way for any payments that you may receive, regardless of whether you authorized the Sender to send them to you. If you do not register, then funds will not be transferred to you from the Sender's Transaction Account, and the payment transaction will be cancelled.
16. Initiating Popmoney Transactions; Receiving Payments.
(a) Initiation of Popmoney Transactions.
(i) You may initiate (a) a one-time payment transaction to a Receiver for which processing shall be initiated immediately, (b) a one-time payment transaction to a Receiver for which processing shall be initiated at a later specified date up to one (1) year, and (c) a recurring series of payment transactions to a Receiver for which processing shall be initiated on the specified dates. Further details about each of these options can be found on the Popmoney Website.
(ii) Payment transactions initiated to Receivers are processed in two ways. You can provide all the required information about the Receiver, including his/her Transaction Account, necessary to complete an ACH Network transfer of funds. Alternatively, you can provide contact information about the Receiver (including an email address or mobile telephone number) and the Popmoney Service may contact the Receiver and request that the Receiver (i) provide information so that we may validate the identity of the Receiver at the Popmoney Website, and then (ii) provide Transaction Account information in order to complete the payment transaction (a "Two-Step Transfer"). If the Receiver maintains a Transaction Account with an institution that participates in the Popmoney Service, the Receiver may access the Popmoney Service at his or her financial institution's website or mobile application to complete the payment transaction and receive the payment.
(iii) You understand and agree that when you initiate a payment transaction from a Transaction Account using the Popmoney Service, the processing of the payment transaction will begin and the debiting of your Transaction Account will occur as early as the day of such initiation. However, the payment funds will be transferred into the Receiver's Transaction Account no earlier than the next Business Day after you initiated the payment transaction. If you request a one-time payment transaction to be initiated on a specified date or a recurring series of payment transactions to be initiated on specified dates, then the processing of the payment transaction will begin on the specified date and the debiting of your Transaction Account will occur as early as the specified date(s). However, the payment funds will be transferred into the Receiver's Transaction Account no earlier than the next Business Day following the specified date. In addition, in the case of all Two-Step Transfers, the deposit of the payment funds into the Receiver's Transaction Account (even if debited or withdrawn from your Transaction Account) may be delayed if the Receiver has not provided the Popmoney Service with certain required information such as his or her Transaction Account information.
(b) Receiving Payments.
(i) If another person wants to send you a payment transaction using the Popmoney Service to a Transaction Account you hold with us, he or she can do that from a Transaction Account at a financial institution that participates in the Popmoney Service or at the Popmoney Website.
(ii) You understand and agree that there may be a delay between the time you are notified of the pending payment transaction and the deposit of the payment funds into your Transaction Account, and you may be required to take additional steps to facilitate the deposit of the payment of funds into your Transaction Account. You authorize the Sender, the financial institution which holds the Sender's Transaction Account and the Popmoney Website to send emails to you and text messages to your mobile phone in connection with the Sender's initiation of payment transactions to you, and, as a Receiver, you may also receive electronic gift cards or requests from others for payment through the Popmoney Service.
17. Transaction Processing.
(a) We will use reasonable efforts to complete all of your transactions properly. However, we shall incur no liability if we are unable to complete any transactions initiated by you because of the existence of any one or more of the following circumstances:
(i) if the Transaction Account does not contain sufficient funds to complete the transactions or the transaction would exceed applicable overdraft limits;
(ii) the Service is not working properly and you know or have been advised by us about the malfunction before you execute the transaction;
(iii) the transaction is refused as described in Section 18 below;
(iv) you have not provided us with the correct information, including, but not limited to, the correct Transaction Account or Recipient Account information; and/or,
(v) circumstances beyond our control (including, but not limited to, fire, flood, network or system down time, issues with the other financial institution(s) involved in the transaction, or interference from an outside force) prevent the proper execution of the transaction.
(b) It is your responsibility to ensure the accuracy of all information that you enter into the Service and to inform us as soon as possible if you become aware that the information entered is inaccurate. You may not use a P.O. Box as a postal address. We will make a reasonable effort to stop or recover a transaction directed to the wrong Recipient Account once informed, but we do not guarantee such recovery and will bear no responsibility or liability for damages resulting from incorrect information entered by you or any other party to a transaction.
18. Transfer/Payment Methods and Amounts. We may, at our sole discretion, impose limits on the amount of money you can transfer, send or receive through the Service. We also reserve the right to select the method in which to transfer or remit funds on your behalf, and the method to return funds to you in the event that your Transaction Account or the Recipient Account is closed or otherwise unavailable to us. Methods we use to return funds to you may include, but are not limited to, electronic payment or an electronic to check payment.
19. Transaction Cancellation Requests and Refused Transactions.
(a) You may cancel a transaction at any time until it begins processing (as indicated in the pending transactions list within the Service). Transactions may not be stopped once they begin processing, and the Service will not permit you to cancel a transaction once processing has begun. We will have no liability for failing to cancel a transaction once processing has begun.
(b) Popmoney Service payments not claimed by the Receiver will automatically be cancelled twelve (12) days after the payment is generated. When a Sender sends money, the Receiver is not required to accept it. You agree that you as a Sender will not hold us liable for any damages resulting from a Receiver's decision to accept or not to accept a payment made through the Service.
(c) We will, to the extent permitted by law, make reasonable attempts to return any unclaimed, refused, refunded, prohibited, or denied payment or transfer to your Transaction Account. If our attempt to return the transaction amount to your Transaction Account is unsuccessful (for example, the Transaction Account has been closed), we will make a reasonable attempt to mail you a paper check. If after ninety (90) days (or longer, depending on our then-current standard for unclaimed checks) that check has not been cashed, we will stop payment on it, and transfer funds to an "unclaimed funds" account, and will subsequently handle the unclaimed funds as required or otherwise permitted by applicable law.
20. Failed Or Returned Transactions.
(a) In using the Service, you are requesting us to make transfers or payments for you from or to your Transaction Account. If we are unable to complete the transaction for any reason associated with your Transaction Account (for example, there are insufficient funds in your Transaction Account to cover the transaction), the transaction may not be completed. In some instances, you will receive a return notice from us. In each such case, you agree that:
(i) You will reimburse us immediately upon demand the transaction amount that has been returned to us;
(ii) For any amount not reimbursed to us within fifteen (15) days of the initial notification, a late charge equal to one and a half percent (1.5%) monthly interest or the legal maximum, whichever rate is lower, for any unpaid amounts may be imposed;
(iii) You may be assessed a fee by our Service Provider and by us if the transfer is returned because you have insufficient funds in your Transaction Account to cover the requested transfer or if we cannot otherwise collect the funds from you; the fee amount will be as set forth in the Bank's Schedule of Fees. You hereby authorize us to deduct these amounts from your designated Transaction Account by ACH debit;
(iv) You will reimburse us and our Service Provider for any fees or costs we or they incur in attempting to collect the amount of the return from you; and
(v) We and our Service Providers are authorized to report the facts concerning the return to any credit reporting agency.
(b) In using the Service, you understand that transfers may be returned or that Receivers and/or the United States Postal Service may return payments to us for various reasons such as, but not limited to, an invalid Recipient or Receiver Account number, or an expired forwarding address. We will use reasonable efforts to research and correct the transaction and re-send it to the intended Receiver or Recipient Account, or void the transactions and credit your Transaction Account. You may receive notification from us of these actions.
21. Your Liability For Unauthorized Transfers/Payments.
(a) If you tell us within two (2) Business Days after you discover your password or other means to access your online banking account has been lost or stolen, your liability for an unauthorized transfer or payment is no more than $50.00 should someone access your account without your permission.
(b) If you do not tell us within two (2) Business Days after you learn of such loss or theft, and we can prove that we could have prevented the unauthorized use of your password or other means to access your online banking account if you had told us, you could be liable for as much as $500.00. If your monthly account statement contains transactions that you did not authorize, you must tell us at once.
(c) If you do not tell us within sixty (60) days after the statement was sent to you, you may lose any amount transferred or paid from your account without your authorization after the sixty (60) days if we can prove that we could have stopped someone from taking the money had you told us in time. If a good reason (such as a long trip or a hospital stay) prevented you from telling us, we may in our sole discretion extend the period.
22. Mobile Phone Users. Your phone service provider is not the provider of the Service. Users of the Service may receive SMS (short message service) messages relating to their payment such as invitations to register and other notices that they may request. In an invitation to register via SMS text message, we will send you a verification code which you will need to enter to direct your payment to your designated bank account. You will receive SMS messages related to your transactions from time to time. Data and messaging charges from your telecommunications provider may apply, and you are responsible for any such charges. In the event your enrolled mobile or cellular device is lost or stolen, you agree to update your enrollment information and make the appropriate changes to disable the use of such devices. You understand that there are risks associated with using a mobile device, and that in the event of theft or loss, your confidential information could be compromised. If you have questions about mobile service, you may send a text message with the word "HELP" to this number: 69322. To stop receiving text messages on your mobile phone, text "STOP" to this number: 69322.
23. Taxes. It is your responsibility to determine what, if any, taxes apply to transfers or payments you make or receive using the Service, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority. We are not responsible for determining whether taxes apply to your transactions, or for collecting, reporting or remitting any taxes arising from any transaction.
24. Service Fees and Additional Charges. Applicable fees will be disclosed in a Fee Schedule that you may access from a link within online banking. Certain fees may also be disclosed on the screen at the time you initiate a transaction. You agree to pay all applicable fees and authorize us to deduct them from your designated Transaction Account with us. Any fees related to your deposit accounts and account activity will continue to apply. You are responsible for any and all telephone access fees and/or Internet service fees that may be assessed by your telephone and/or Internet service provider.
25. Address or Account Changes. It is your sole responsibility and you agree to ensure that the contact information in your user profile within the Service is current and accurate, including, but not limited to, your name, address, phone numbers and email addresses. Changes can be made either within the Service or by contacting us as described in Section 6 above. Any changes in your Transaction Account or the Recipient Account should also be made in accordance with the procedures outlined within the Service's Help files. All changes you make within the Service are effective immediately. We are not responsible for any transaction processing errors or fees incurred if you do not provide accurate Transaction Account, Recipient Account, or contact information or any other information necessary for us to process the transaction.
26. Our Right to Refuse Transactions. We reserve the right to refuse to make any payment or transfer to a Recipient Account or Receiver. We will notify you or the Sender promptly if we refuse to process the transaction. This notification is not required if you attempt to make a prohibited transaction under this Agreement.
27. Information Authorization. Your enrollment in the Service may not be fulfilled if we cannot verify your identity or other necessary information. Through your enrollment in the Service as a Sender, you agree that we and our Service Providers reserve the right to request a review of your credit rating at our own expense through an authorized bureau and you hereby authorize us to do so. In addition, you agree that we reserve the right to obtain financial information regarding your account from a Receiver to whom you sent a payment.
28. Service Cancellation by You. In the event you wish to cancel the Service, you may telephone us as described in Section 6 above. Any transaction (s) we have already processed before the requested cancellation date will be completed by us.
29. Service Cancellation, Termination, or Suspension by Us, and Other Remedies for Breach. If we have reason to believe that you have engaged in any of the prohibited activities described in this Agreement or have otherwise breached your obligations under this Agreement, we may terminate, suspend or limit your access to or use of the Site or the Service; notify law enforcement, regulatory authorities, impacted third parties, and others as we deem appropriate; refuse to provide our services to you in the future; and/or take legal action against you. In addition, we, in our sole discretion, reserve the right to terminate this Agreement, access to the Site, and/or use of the Service for any reason and at any time. Neither termination nor suspension shall affect your liability or obligations under this Agreement.
30. Errors, Questions, and Complaints.
(a) In case of errors or questions about your transactions or transaction history, or if you need more information about a transaction, call us as soon as possible at the toll-free number listed in Section 6 above, and/or write us at the address provided in Section 6 above. We must hear from you no later than sixty (60) days after the transaction in which the problem or error appears is first posted in your transaction history.
(b) When you notify us, you must:
i. Tell us your name;
ii. Describe the error or the transaction in question, and explain as clearly as possible why you believe it is an error or why you need more information; and,
iii. Tell us the dollar amount of the suspected error.
(c) If you notify us verbally, we may require that you send your complaint in writing within ten (10) Business Days after your verbal notification. We will tell you the results of our investigation within ten (10) Business Days after we hear from you, and will correct any error promptly. However, if we require more time to confirm the nature of your complaint or question, we reserve the right to take up to forty-five (45) days to complete our investigation. If we decide to do this, we will provisionally credit your Transaction Account within ten (10) Business Days for the amount you think is in error. If we ask you to submit your complaint or question in writing and we do not receive it within ten (10) Business Days, we may not provisionally credit your Transaction Account.
(d) If it is determined there was no error we will mail you a written explanation within three (3) Business Days after completion of our investigation. You may ask for copies of documents used in our investigation. We may revoke any provisional credit provided to you if we find an error did not occur.
31. Intellectual Property. "Popmoney" is a trademark of CashEdge Inc. or its affiliates. All other marks and logos related to the Service are either trademarks or registered trademarks of ours or our licensors. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress or those of our licensors. You may not copy, imitate, or use any of the above without our prior written consent, which we may withhold in our sole discretion, and you may not use them in a manner that is disparaging to us or the Service or display them in any manner that implies our sponsorship or endorsement. All right, title and interest in and to the Service, the portion of the Site through which the Service is offered, the technology related to the Site and Service, and any and all technology and any content created or derived from any of the foregoing, is our exclusive property or that of our licensors. Moreover, any suggestions, ideas, notes, drawings, concepts, or other information you may send to us through or regarding the Site or Service shall be considered an uncompensated contribution of intellectual property to us, shall also be deemed our exclusive intellectual property, and shall not be subject to any obligation of confidentiality on our part. By submitting any such materials to us, you automatically grant (or warrant that the owner of such materials has expressly granted) to us a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display, create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed, and you warrant that all so-called "moral rights" in those materials have been waived, and you warrant that you have the right to make these warranties and transfers of rights.
32. Links and Frames. Links to other sites may be provided on the portion of the Site through which the Service is offered for your convenience. By providing these links, we are not endorsing, sponsoring or recommending such sites or the materials disseminated by or services provided by them, and are not responsible for the materials, services or other situations at or related to or from any other site, and make no representations concerning the content of sites listed in any of the Service web pages. Consequently, we cannot be held responsible for the accuracy, relevancy, copyright compliance, legality or decency of material contained in sites listed in any search results or otherwise linked to the Site. For example, if you "click" on a banner advertisement or a search result, your "click" may take you off the Site. This may include links from advertisers, sponsors, and content partners that may use our logo(s) as part of a co-branding agreement. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, advertisers on the Site may send cookies to users that we do not control. You may link to the home page of our Site. However, you may not link to other pages of our Site without our express written permission. You also may not "frame" material on our Site without our express written permission. We reserve the right to disable links from any third party sites to the Site.
33. Password and Security. If you are issued or create any password or other credentials to access the Service or the portion of the Site through which the Service is offered, you agree not to give or make available your password or credentials to any unauthorized individuals, and you agree to be responsible for all actions taken by anyone to whom you have provided such credentials. If you believe that your credentials have been lost or stolen or that someone may attempt to use them to access the Site or Service without your consent, you must inform us at once at the telephone number provided in Section 6 above. See also Section 19 above regarding how the timeliness of your notice impacts your liability for unauthorized transfers.
34. Applicable Agreements. Your use of the Service is governed by this Agreement, the First Citizens Bank Personal Online Banking Agreement, and the First Citizens Bank Deposit Account Agreement (collectively, "Governing Agreements"). In the event of a conflict between this Agreement and the other Governing Agreements, the terms of this Agreement shall govern with respect to your use of the Service and transactions conducted using the Service. You agree that the Governing Agreements are the complete and exclusive statement of the agreement between us and you relating to the Service and your use of the Service, and that they supersede any proposal or prior agreement, oral or written, and any other communications between us and you relating to the Service. If there is a conflict between the terms of the Governing Agreements and something stated by an employee, contractor or Service Provider of ours (including but not limited to their customer care personnel), the terms of the Governing Agreements will prevail.
35. ARBITRATION PROVISION.
PLEASE READ THIS PROVISION CAREFULLY: IT PROVIDES THAT CERTAIN DISPUTES MAY BE RESOLVED BY BINDING ARBITRATION AT THE ELECTION OF EITHER PARTY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR RATHER THAN A JUDGE OR JURY. THE RIGHT TO APPEAL THE ARBITRATOR'S DECISION MAY BE LIMITED OR UNAVAILABLE.
(a) Agreement to Arbitrate. Except as provided below in "EXCEPTIONS TO APPLICABILITY OF ARBITRATION," either you or we may require that any "Claim" (as defined below) be resolved exclusively and finally by binding arbitration, even if suit already has been filed in court. "Claim" means any claim, controversy or dispute (whether pre-existing, present, or future) based on any theory of law or remedy, made by you or anyone connected with you or claiming through or for you (including a co-owner, representative, or trustee in bankruptcy) that arises from or relates to this Agreement.
(b) Exceptions to Applicability of Arbitration. This Arbitration Provision does not limit your or our right to seek temporary injunctive relief from a court pending any arbitration proceeding. We also retain the right and option to exercise our right of set off under applicable law or contract and to exercise judicial remedies to enforce any monetary obligations incurred in connection with your account.
(c) No Class Action Claims. No Claim may be arbitrated on a class action basis. Arbitration shall proceed on an individual basis, including Claims made and remedies sought as part of a class action, private attorney general or other representative action. No Claim may be consolidated with the dispute of any other person. With arbitration, you cannot act as a class representative or participate as a member of a class, even if the Claim has been asserted in court.
(d) Arbitrator. Any Claim subject to arbitration shall be resolved by binding arbitration administered by the American Arbitration Association ("AAA") before a single neutral arbitrator in the state where we maintain your account. Judgment on the arbitrator's award may be entered by any court having jurisdiction. The AAA Rules for Resolving Commercial Financial Disputes, including (as applicable) the Supplementary Procedures for Large, Complex Commercial Disputes ("Rules"), in effect on the date arbitration is filed, shall govern the arbitration, subject to this Arbitration Provision. The arbitrator may allow discovery of relevant non-privileged documents. The arbitrator does not have authority to award punitive, exemplary, statutory or consequential damages or damages for lost profits. The party initiating arbitration pays the initial filing fee. Expenses and fees of the arbitrator are shared equally by the parties unless the arbitrator specifically assesses all or part of the expenses and fees in the award. The arbitrator's award or denial of a Claim must be made in writing and generally state the reasons for the decision.
(e) This Arbitration Provision is made pursuant to a transaction involving interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. § § 1-16. This Arbitration Provision survives: (a) termination of or changes to the Agreement, your account, or your relationship with us concerning your account; (b) bankruptcy; and (c) our transfer of your account.
36. Law and Forum for Disputes. This Agreement shall be governed by and construed in accordance with applicable federal law and the laws of the State of North Carolina, without regard to its conflicts of laws provisions. To the extent that the terms of this Agreement conflict with applicable state or federal law, such state or federal law shall replace such conflicting terms only to the extent required by law. Unless expressly stated otherwise, all other terms of this Agreement shall remain in full force and effect. You agree that any claim or dispute you may have against us that is not subject to arbitration under Section 33 above shall be resolved by a court located in Wake County, North Carolina. You agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
37. Waiver of Jury Trial. Both parties agree to waive any right to have a jury participate in the resolution of any dispute or claim between the parties or any of their respective Affiliates arising under this Agreement.
38. Indemnification. You agree to defend, indemnify and hold harmless us and our Affiliates and Service Providers and the employees and contractors of each of these, from any loss, damage, claim or demand (including attorneys fees) made or incurred by any third party due to or arising out of your breach of this Agreement and/or your use of the Site or the Service, including, but not limited to, all transactions conducted using the Service by anyone using your online banking password and Customer ID whether with our without your authorization to the extent permitted by law.
39. Release. If you have a dispute with one or more other users of the Site or the Service, you release us and our Affiliates and Service Providers and the employees and contractors of each of these, from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. In addition, you waive and release any and all provisions, rights and benefits conferred either (i) by California Civil Code §1542, which states that a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if not known by him must have materially affected his settlement with the debtor, or (ii) by any law of any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to § 1542 of the California Civil Code.
40. No Waiver. We shall not be deemed to have waived any of our rights or remedies hereunder unless such waiver is in writing and signed by one of our authorized representatives. No delay or omission on our part in exercising any rights or remedies shall operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion shall not be construed as a bar or waiver of any rights or remedies on future occasions.
41. EXCLUSIONS OF WARRANTIES. THE SITE AND SERVICE AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF OUR SERVICE, AND OPERATION OF OUR SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. SOME STATES DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THIS PARAGRAPH GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
42. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT FROM TIME TO TIME, THE SERVICE OR ACCESS TO THE SITE MAY BE DELAYED, INTERRUPTED OR DISRUPTED PERIODICALLY FOR AN INDETERMINATE AMOUNT OF TIME DUE TO CIRCUMSTANCES BEYOND OUR REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION, DISRUPTION OR FAILURE IN THE PROVISION OF THE SERVICE, WHETHER CAUSED BY STRIKES, POWER FAILURES, EQUIPMENT MALFUNCTIONS OR OTHER REASONS. IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AND CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE CAUSED BY OR ARISING OUT OF ANY SUCH DELAY, INTERRUPTION, DISRUPTION OR SIMILAR FAILURE.
IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AND CONTRACTORS OF ANY OF THESE, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOSS OF GOODWILL OR LOST PROFITS (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) ARISING IN ANY WAY OUT OF THE INSTALLATION, USE, OR MAINTENANCE OF THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND NOTICE WAS GIVEN REGARDING THEM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE FOREGOING LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN NO EVENT SHALL WE OR OUR AFFILIATES OR SERVICE PROVIDERS OR THE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AND CONTRACTORS OF ANY OF THESE BE LIABLE FOR ANY CLAIM ARISING FROM OR RELATED TO THE SERVICE OR THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED THAT YOU DO NOT STATE IN WRITING IN A COMPLAINT FILED IN A COURT OR ARBITRATION PROCEEDING AS DESCRIBED IN SECTIONS 33 AND 34 ABOVE WITHIN TWO (2) YEARS OF THE DATE THAT THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THESE LIMITATIONS WILL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY.
THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES AND SERVICE PROVIDERS AND THE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AND CONTRACTORS OF EACH OF THESE, TO YOU AND/OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THE SERVICE AND THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED AND THIS AGREEMENT SHALL BE LIMITED TO DIRECT OUT OF POCKET DAMAGES UP TO A MAXIMUM OF $500 (FIVE HUNDRED DOLLARS). THE FOREGOING SHALL CONSTITUTE YOUR EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF US AND OUR AFFILIATES AND SERVICE PROVIDERS AND THE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AND CONTRACTORS OF EACH OF THESE, FOR THE SERVICE AND THE PORTION OF THE SITE THROUGH WHICH THE SERVICE IS OFFERED.
43. Complete Agreement, Severability, Captions, and Survival. This Agreement sets forth the entire understanding between us and you with respect to the Services and the portion of the Site through which the Services are offered. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The captions of sections hereof are for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Agreement. Sections 8, 9, 31, and 34-44 as well as any other terms which by their nature should survive, will survive the termination of this Agreement.
(a) "Account" means a checking, money market or savings account.
(b) "ACH Network" means the funds transfer system, governed by the NACHA Rules, that provides funds transfer services to participating financial institutions.
(c) "Affiliates" means companies related by common ownership or control.
(d) "Business Day" is every Monday through Friday, excluding Federal Reserve holidays or other days that banks in the United States are legally closed.
(e) "Payment Instruction" is the information provided by the Sender to the Popmoney Service for a payment to be made (such as, but not limited to, name, telephone number, and email address).
(f) "Receiver" is a person or entity that is sent a payment through the Popmoney Service.
(g) "Recipient Account" is the account to which the funds you transfer using the A2A Service, or send as payments using the Popmoney Service, will be credited.
(h) "Sender" means: (a) for the A2A Service, the Transaction Account holder initiating a transfer through the Service; and (b) for the Popmoney Service, a person or entity that sends a payment through the Service.
(i) "Service Provider" means companies that we have engaged to render some or all of the Service to you on our behalf.
(j) "Site" means the online banking website through which the Service is offered.
(k) "Transaction Account" means, as applicable, the Account (i) from which we will debit the funds you transfer using the A2A Service, or send as payments using the Popmoney Service, and your Service fees, or (ii) to which funds, payments and credits to you, as applicable, will be returned and credited.
(l) "Transfer Instruction" is the information entered by you within the A2A Service for a transfer of funds to a Recipient Account.