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This Agreement is entered into between Wilmington Trust (the "Bank"), where you maintain your enrolled account(s), and you as a client of the Bank who has enrolled in Wilmington Trust On-Line Banking ("On-Line Banking," "OLB," or the "Service") for your account(s). The enrolled client is referred to in this Agreement as "Client," "you," and/or "your." The Bank is referred to in this Agreement as "Bank," "us," and/or "our." You should carefully read this Agreement and the Bank's Security & Privacy Policy, as they may be amended from time to time, before you use On-Line Banking. If you use On-Line Banking or permit another to use On-Line Banking on your behalf, you agree to be legally bound by the terms and conditions stated in this Agreement.
Some of the provisions of this Agreement do not apply to business accounts (and are therefore only applicable to personal accounts). When this limitation is applicable, the Bank has indicated this fact.
The following terms will have the meanings specified below when used in this Agreement. Certain other capitalized terms are defined elsewhere in this Agreement in the context of the provisions in which they are used.
"Access Code" means your unique User ID and Password.
"ACH" means the Automated Clearing House.
"Business Day" means a day other than Saturdays, Sundays, and Bank holidays as scheduled by the Bank in Wilmington, Delaware.
"Bank to Bank Transfer Service" means that component of OLB Transfer Services through which a client may initiate Bank to Bank Transfers.
"Bank to Bank Transfers" mean fund transfers between accounts with the Bank and another U.S. chartered financial institution.
Your "Computer" means your computer and the related equipment.
"EFTA" means the federal Electronic Fund Transfer Act, 15 U.S.C.A. § 1693 et seq., as it may be amended from time to time.
"OLB Account Access" means the component of On-Line Banking that allows a Client to access his/her/its account information and conduct various banking functions.
"OLB Bill Payment Services" means the component of On-Line Banking through which a Client may initiate payments.
"OLB Transfer Services" means the component of On-Line Banking through which a client may initiate fund transfers: (1) between qualifying accounts with the Bank; and (2) between qualifying accounts with the Bank and another U.S. chartered financial institution.
"Payment Account" means any of your Wilmington Trust checking accounts from which you make bill payments.
"REG E" means Federal Reserve Board Regulation E implementing the EFTA, 12 C.F.R. § 205.1 et seq., as such regulation may be amended from time to time.
1a. Other Accounts, Loan Agreements and Services
These terms and conditions are in addition to those that apply to any accounts you may have with us, loan or credit agreements, or any other services you obtain from us, including your signature card(s), account and deposit disclosures, agreements, and fee schedules, the terms and conditions of any loan or credit agreements, any accompanying schedules and disclosures, and any change in terms notices. Our website "Terms of Use" and "Security & Privacy Statement" also govern your use of the Service.
If you have more than one account or other relationship with us, you may "link" the relationships together as we permit. Accounts that are linked under On-Line Banking must have one common owner and signer. Any signer, acting alone, must be authorized to access a linked account. However, each individual who elects to access accounts through On-Line Banking must select and use a separate Access Code (see Sections 4 and 5).
1b. Multiple Account Users
If you are an authorized user on an account with more than one authorized user, or you are a joint accountholder on a joint account, you are jointly and severally liable under this Agreement. Each of you acting alone, under your separate and unique Access Code, may perform transactions, obtain information, stop or change payments or transfers, or otherwise transact business, take actions or perform under this Agreement. We are not required to obtain the consent of or notify any other accountholder or authorized user about the actions of others. However, each of you will only be permitted to access accounts for which you are an owner or authorized user.
Note that when joint accountholders or authorized users each have their own individual Access Code, a joint accountholder or authorized user can only view pending payments and transfers that that accountholder/user has requested. That accountholder/user cannot view pending transactions, transaction status and transaction history initiated by other joint accountholders/ users. However, a joint accountholder/user can view all completed transactions initiated by other accountholders/users within account detail statements.
Each of you individually releases us from liability and agrees not to make a claim or bring any action against us for honoring or allowing any actions or transactions where the person performing the action or transaction is one of you or is otherwise authorized to use your On-Line Banking service. Each of you agrees to indemnify us and hold us harmless from any and all liability (including, but not limited to, reasonable attorneys' fees) arising from any such claims or actions.
2. Electronic Fund Transfer Act and Regulation E
The EFTA and REG E govern some of the transactions permitted through On-Line Banking. Some of the terms and conditions of this Agreement are disclosures required by REG E.
3. Computer Requirements
In order to use On-Line Banking, you will need the type of computer, related equipment, and software described in our On-Line Banking FAQs found under the HELP link. You are responsible for the installation, maintenance, and operation of your Computer and your software. The risk of error, failure, or nonperformance is your risk and includes the risk that you do not correctly operate your Computer or your software. The Bank is not responsible for any errors or failures from any malfunction of your Computer or your software. The Bank is not responsible for any Computer virus-related problems that may be associated with the use of On-Line Banking. The Bank will have no liability to you for any damages or other loss, direct or consequential, which you may suffer or incur by reason of your use of your Computer or your software. THE BANK MAKES NO WARRANTY TO YOU REGARDING ON-LINE BANKING, YOUR COMPUTER OR YOUR SOFTWARE, INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Access Code
You will need your Access Code to gain access to On-Line Banking. Use of your Access Code is the agreed upon security procedure between you and the Bank. Keep your Access Code confidential in order to prevent unauthorized use of such Access Code, possible loss to your accounts, and/or unauthorized use of On-Line Banking. Anyone to whom you give or disclose your Access Code will have full access to your accounts, even if you attempt to limit that person's authority. If you forget your Password and/or your User ID, contact the Bank. Upon verification, your User ID will be provided and a new temporary password will be assigned to you. You will be required to select a new Password when you next log in to the Service.
5. Security
The Bank is committed to the security of its clients' accounts and account information. Similarly, you must take every precaution to ensure the safety, security, and integrity of your On-Line Banking accounts and transactions. The Access Code is the access device to your accounts and other services provided in this Agreement; providing the Access Code to another person constitutes a grant of authority to access your accounts. The following guidelines, although not exclusive, should assist you in helping to maintain the security of your accounts:
Please observe these guidelines and remember that you may be held liable for the use of your Access Code and for the use of the Service until you have properly signed out (see Section 16).
6. Hours of Service Availability
On-Line Banking is generally available 24 hours a day, seven days a week, except as noted in Section 7 below.
7. Changes/Interruptions in Services
We may on a regular basis perform maintenance on our equipment or systems that may result in interrupted service or errors in the Service. We also may need to change the scope of the Service 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.
You may be unable to access the Service, any ISP or the Internet at any given time, and disconnections may occur from time to time. During your online session, you will be automatically disconnected following approximately 15 minutes of inactivity. (You may then sign on again, if desired.)
8. On-Line Banking Services
To enroll in On-Line Banking, you must have at least one account with the Bank. Currently, there are three separate components to the Service:
You must enroll in each of these services separately by completing the appropriate online process. Alternatively, you may enroll in each of these services by visiting a Delaware branch office or by calling our Client Services Center. You must be enrolled in OLB Account Access in order to be able to enroll in OLB Bill Payment Services or OLB Transfer Services. (If you are already enrolled in our Bill Payment Services and you enroll in OLB Account Access, you are automatically enrolled in OLB Bill Payment Services). Once the enrollment process has been completed, you will be able to begin using the Services.
The Bank may from time to time introduce new or additional services to On-Line Banking. The Bank will notify you of such new services when they become available. By using these new services when they become available, you agree to be bound by the rules concerning these services which will be sent to you and/or posted on our website.
9. Description of On-Line Banking Functions
Depending on your choice of enrollment in OLB Account Access or OLB Bill Payment Services, you may perform some or all of the following transactions:
9a. OLB Account Access Services
Features of this service include the following:
All features of OLB Account Access are limited by and subject to the terms and conditions described herein.
9b. OLB Bill Payment Services
The Bank's OLB Bill Payment Services contain a payment system that permits you to initiate and authorize payment requests from your Payment Account to merchants, businesses or individuals you specify that are located within the United States ("Payee").
You can arrange, at your option, for the payment of your current, future, one-time and recurring bills from a Payment Account. You may pay your loan and other credit accounts with the Bank, you may select Payees from the Bank's master list of merchants or businesses that have agreed to receive payments from the Bank, and/or you may pay a merchant, business or individual that is not included in the Bank's master list. By furnishing the Bank with the names and account numbers of your Payees and certain other information, you authorize the Bank to follow your payment instructions to these payees that the Bank receives from you through your use of OLB Bill Payment Services. The Bank reserves the right to refuse to make a payment to any Payee you identify for security, credit, legal/regulatory or other reasons, as the Bank may determine at any time and from time to time in its sole discretion.
You have the option of setting up two types of bill payments: (1) one-time payments, which may be set up as current or future payments; and (2) recurring payments, which are payments of a fixed amount that are paid at a regular time interval, such as monthly (e.g., rent, mortgage payment, etc.). After you have initiated a bill payment request, the Bank will automatically execute bill payments according to your instructions until you have properly notified the Bank, in accordance with the Bank's procedures in effect at that time, of any cancellation of or change to your instructions. When you initiate a payment request, you authorize the Bank to charge your Payment Account by the same amount as the payment(s).
Any current payment request that you initiate on a day other than a Business Day, or after 11:00 PM ET on a Business Day, will be deducted from your Payment Account on the following Business Day. Any current payment request that you initiate before 11:00 PM ET on a Business Day will be deducted from your Payment Account on that Business Day.
For any future payment, whether one-time or recurring, if your requested payment date falls on a day other than a Business Day, the payment will be deducted from your Payment Account on the Business Day prior to your requested payment date. If the requested payment date for a future payment falls on a Business Day, the payment will be deducted from your Payment Account on that Business Day.
The Bank will not be obligated to make any payment unless your Payment Account has sufficient funds available to cover the payment on the date the Bank debits your Payment Account.
9c. 9c. OLB Transfer Services (including Bank to Bank Transfers) Only Applicable to Personal Accounts
The Bank's OLB Transfer Services enable you to transfer funds between your accounts with us. In addition, this service enables you to transfer funds via an ACH transaction both (1) from any account held by you at another U.S. chartered financial institution to a savings, checking or money market account at the Bank and (2) from any of your qualifying accounts at the Bank to any other account held by you at another U.S. chartered financial institution, assuming that the transfer is permitted by the financial institutions and by law. This latter feature is referred in this Agreement as the "Bank to Bank Transfer Service." All accounts that qualify for the Bank to Bank Transfer Service are referred to in this section as "Accounts."
Your ability to transfer funds between certain accounts is limited by federal law, as stated in the deposit agreement(s) that you received when you opened your deposit account(s). For example, you can make no more than six transfers and withdrawals from a savings or money market savings account during each statement period to another one of your account(s) at the Bank or to a third party by means of a pre-authorized or automatic transfer or telephonic agreement, order or instruction. No more than three of the six transfers or withdrawals may be made by check, draft, debit card or similar order made by you and payable to third parties. Transfers and bill payments made using On-Line Banking and other transfer methods described in the deposit agreements are counted against the permissible number of transfers. These limitations do not apply to checking accounts.
For purposes of the OLB Transfer Services, the minimum amount that you may transfer from your credit accounts is as follows: (1) $50.00, for credit card accounts; (2) $100.00 for Stand-by Line of Credit accounts; and (3) $500.00 for home equity line of credit accounts.
The Bank reserves the right to limit the frequency and dollar amount of transactions from your accounts for security, credit, legal/regulatory or other reasons, as the Bank may determine at any time and from time to time in its sole discretion.
The Bank will not be obligated to make any transfer unless the account from which you are transferring funds has sufficient funds available to cover the transfer on the date the Bank debits such account.
Any request for a current transfer between accounts at the Bank that you initiate on a day other than a Business Day, or after 11:00 PM ET on a Business Day, will be processed as follows: (1) a hold for the amount of the transfer will be immediately placed on the account from which you have requested that the transfer be made; and (2) the funds will be transferred to your account on the following Business Day. Any current transfer request that you initiate before 11:00 PM ET on a Business Day will be transferred between your accounts on that Business Day.
The remaining terms and conditions in this Section 9c apply only to the Bank to Bank Transfer Service unless otherwise indicated. The Bank may employ one or more service providers in offering the Bank to Bank Transfer Service to you. Any reference to the Bank in this section also includes such service providers unless otherwise indicated.
You access and use the Bank to Bank Transfer Service only through the Bank's On-Line Banking service. The Bank reserves the right to obtain such information as the Bank deems reasonably necessary to ensure that you or persons to whom you may transfer funds are not using the Transfer Service in violation of law, including, but not limited to, laws and regulations designed to prevent "money laundering" or the transfer of funds to or from persons or organizations whose accounts are blocked under regulations of the Office of Foreign Asset Control (OFAC) or the United States Treasury Department.
The Bank may verify any Account that you add to the Bank to Bank Transfer Service from time to time. You authorize the Bank to validate the Accounts, which may be done through the use of a test transfer in which one or more low value payments will be credited to and/or debited from the Account. The test credit will always occur before any test debit and will always be of the same or lesser amount, so that the balance in any of your Accounts will never be less than the actual balance.
Once the test transfer is complete, the Bank may ask you to access your Account to tell us the amount of the test credit or debit or any additional information reported by your bank with this test transfer. The Bank may also verify Accounts through requiring the entry of information you ordinarily use to access the Account provider's web site, or by requiring you to submit proof of ownership of the Account.
You understand that in order to complete Bank to Bank Transfers, it is necessary for the Bank to access the websites and databases of other institutions where you hold Accounts, as designated by you and on your behalf, to retrieve information and effect the Bank to Bank Transfers you request. By using the Transfer Service, you represent and warrant to the Bank that you have the right to authorize and permit us to access your Accounts to effect such fund transfers or for any other purpose authorized by this Agreement, and you assure the Bank that by disclosing and authorizing it to use such information you are not violating any third party rights. You warrant and represent that the information you are providing the Bank is true, current, correct and complete. You hereby authorize and permit the Bank to use information submitted by you to accomplish these purposes and to configure the Transfer Service to be compatible with the Accounts.
For as long as you are using the Transfer Service, you give to the Bank the right to access the Accounts, effect Bank to Bank Transfers as described above, with full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with effecting Bank to Bank Transfers, including verifying the content and authenticity of any Bank to Bank Transfer instruction for the purposes of security procedures applicable to Accounts, as fully to all intents and purposes as you might or could in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN THE BANK IS EFFECTING A BANK TO BANK TRANSFER FROM OR TO ANY OF YOUR OR A RECIPIENT'S ACCOUNTS, THE BANK IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OR ON BEHALF OF ANY THIRD PARTY. You agree that the Bank, its affiliates, service providers and partners will be entitled to rely on the foregoing authorization and agency. YOU AGREE THAT THE BANK WILL NOT BE LIABLE FOR ANY COSTS, FEES, LOSSES OR DAMAGES OF ANY KIND INCURRED AS A RESULT OF (1) ITS ACCESS TO THE ACCOUNTS; (2) ANY DEBIT AND/OR CREDIT OR INABILITY TO DEBIT AND/OR CREDIT THE ACCOUNTS IN ACCORDANCE WITH YOUR BANK TO BANK TRANSFER INSTRUCTIONS; (3) ANY INACCURACY, INCOMPLETENESS OR MISINFORMATION CONTAINED IN THE INFORMATION RETRIEVED FROM THE ACCOUNTS; (4) ANY CHARGES IMPOSED BY ANY PROVIDER OF ACCOUNTS AND (5) ANY FUND TRANSFER LIMITATIONS SET BY THE FINANCIAL INSTITUTIONS OR OTHER PROVIDERS OF THE ACCOUNTS.
Not all types of accounts are eligible for Bank to Bank Transfers. Be sure to check with the Bank for restrictions regarding transfers among your retirement (401k, IRA, etc.), savings, trusts, loans, custodial, business, corporate and other account types. The Bank is not responsible for any costs or losses incurred from Bank to Bank Transfers that are not permitted under such restrictions by the provider of your Account or those imposed by applicable law.
You may initiate Bank to Bank Transfers between any two of your Accounts about which you have provided the necessary information to the Bank. Bank to Bank Transfers can be between Accounts within the same financial institution or at an unrelated financial institution (although transfers between Accounts at the same institution may be effected more quickly by contacting the institution directly).
Some of these services may not be available at all times. The Bank may from time to time make available additional or new features to the Bank to Bank Transfer Service, including but not limited to, a next day service and a higher limit service. You will be approved or declined for any such additional service at our sole discretion, and additional terms and conditions may apply. Please ensure that you have sufficient funds to effect any Bank to Bank Transfer from your Accounts. The Bank may at any time decline to effect any fund transfer that it believes may violate applicable law.
You may not make Bank to Bank Transfers in excess of limits described on the Bank to Bank Transfer Service. The Bank reserves the right to change from time to time the dollar amount of Bank to Bank Transfers you are permitted to make using our Bank to Bank Transfer Service. Without limiting the foregoing, in the event that your use of the Bank to Bank Transfer Service has been suspended and reinstated as provided herein, you understand and agree that your use of the Bank to Bank Transfer Service thereafter may be subject to lower dollar amount limitations than would otherwise be permitted by us.
The Bank reserves the right to decline to effect any Bank to Bank Transfer, to submit Bank to Bank Transfer instructions or orders or to carry out change or cancellation requests.
You authorize the Bank to select any means to execute your Bank to Bank Transfer instructions. You understand that to effect your Bank to Bank Transfer instruction the Bank utilizes the ACH. Using applicable ACH Rules, the Bank debits one of your Accounts and credits another of your Accounts. Once your Account has been debited, the Bank credits its service provider's transfer account at the service provider's clearing bank. After our service provider and/or its clearing bank are reasonably certain that the debit will not be returned (in most cases, this is usually between 3-4 banking days), our service provider will credit your Account. The sole purpose for our service provider's transfer account is to complete your Bank to Bank Transfer requests and for performing the Bank to Bank Transfer Service. The service provider earns no interest on the funds in the transfer account. If the debit side fails or is returned for any reason and the credit side has been released and cannot be collected, you authorize the Bank to collect from the Account to which the credit side of the Bank to Bank Transfer was sent. The Bank reserves the right to resubmit a debit, or a portion of the debit, in the event of an insufficient or uncollected funds return and if the Bank cannot collect the amount credited. To effect this collection, you understand and authorize us to debit the credited Account or the debited Account in either the same dollar amount as the original Bank to Bank Transfer or a portion of the debit. There may be a fee associated with such collection imposed by the financial institution holding the Account.
You understand and agree that the Bank may from time to time impose additional charges in connection with your Bank to Bank Transfer transactions. The Bank will notify you of such fee in advance of the transaction. If you choose to proceed with the transaction, you authorize the Bank to debit your account in the amount indicated.
You understand and agree that in the event the Bank is unable to execute your Bank to Bank Transfer request utilizing the ACH, the Bank may utilize other established payment mechanisms in order to complete your Bank to Bank Transfer instructions, such as wire transfer or check.
In the event that the Bank at any time incurs a problem with your use of the Transfer Service, including without limitation a failed attempt to debit any of your Accounts or to collect with respect to any of your fund transfers as described above, and without limiting any other right or remedy that the Bank may have under this Agreement or otherwise, the Bank reserves the right to suspend your right to use the Bank to Bank Transfer Service, immediately and without prior notice to you. You understand and agree that such action is reasonable for the Bank to take in order to protect itself from loss. In the event of such suspension, you may request reinstatement of your service by contacting us using any of the methods provided for under this Agreement. The Bank reserves the right in its sole discretion to grant or deny reinstatement of your use of the Bank to Bank Transfer Service. In the event that the Bank agree to reinstate you, the Bank reserves the right to, and ordinarily will, initially reinstate your Bank to Bank Transfer Service subject to lower per-transaction and monthly dollar limits and/or with other restrictions than otherwise might be available to you. Based upon your subsequent usage of the Bank to Bank Transfer Service, the Bank in its sole discretion may thereafter restore your ability to effect Bank to Bank Transfers subject to such higher limits as may then be in effect.
You understand that the Bank must rely on the information provided by you, and you authorize it to act on any instruction which has been or reasonably appears to have been sent by you, to submit Bank to Bank Transfer instructions on your behalf. You understand that financial institutions receiving the Bank to Bank Transfer instructions may rely on such information. The Bank is not obliged to take any further steps to confirm or authenticate such instructions and will act on them without getting further confirmation. You understand that if you provide the Bank with incorrect information or if there is any error in your instruction, the Bank will make all reasonable efforts to reverse or delete such instructions, but you accept full responsibility for losses resulting from any of your errors, duplication, ambiguities or fraud in the information that you provide. You agree not to impersonate any person or use a name that you are not authorized to use. If any information you provide is untrue, inaccurate, not current or incomplete, without limiting other remedies, the Bank reserves the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information.
The Bank is not responsible for errors, delays and other problems caused by or resulting from the action or inaction of financial institutions holding the Account. Although the Bank will try to assist you in resolving any such problems, you understand that any such errors, delays or other problems are the responsibility of the relevant financial institution. Any rights that you may have against another financial institution for such errors, delays or other problems are subject to the terms of the agreements you have with such financial institution, including any time limits during which complaints must be made.
As a condition of using the Bank to Bank Transfer Service, you warrant to the Bank that you will not use the Bank to Bank Transfer Service for any purpose that is unlawful or is not permitted, expressly or implicitly, by the terms of this Agreement or by any applicable law or regulation. You further warrant and represent that you will not use the Bank to Bank Transfer Service in any manner that could damage, disable, overburden, or impair the Bank to Bank Transfer Service or interfere with any other party's use and enjoyment of the Bank to Bank Transfer Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Bank to Bank Transfer Service. You agree that these warranties and representations will remain in full force and effect even if this Agreement terminates for any reason.
You understand that the financial institution at which an Account is maintained may contact the Bank to verify the content and authority of Bank to Bank Transfer instructions and any changes to those instructions. You understand that, as your agent, the Bank may provide to such financial institution such information as may be required to verify the instructions and may constitute a valid security procedure under the rules governing such Account.
You agree to allow the Bank to authorize any financial institution at which you have an Account to accept funds and Bank to Bank Transfer instructions in accordance with any authorization procedures as may be agreed from time to time between you and such financial institution, or between us, on your behalf, and such financial institution, without verifying the instructions under the established security procedures, regardless of whether such security procedures were agreed to by you directly or by us on your behalf. In addition, you agree that the Bank may authorize such financial institutions to charge and debit your accounts based solely on these communications.
If fund transfer instructions identify a bank or beneficiary by name and account number, the relevant financial institution may execute those instructions by reference to the number only, even if the number does not correspond to the name. You understand that such financial institutions may not investigate discrepancies between names and numbers. In addition, you agree that the Bank has no responsibility to investigate discrepancies between names and numbers.
In accessing and using the Bank to Bank Transfer Service, you confirm that, if any of your Accounts is a joint account, your joint account holder has consented for you to use your Accounts for the Bank to Bank Transfer Service. The Bank will end your use of the Bank to Bank Transfer Service if any joint account holder notifies us that (1) they never consented to your use of our Bank to Bank Transfer Service, (2) the joint account can no longer be operated on your instructions alone, or (3) they are withdrawing consent for you to operate the joint account.
You authorize the Bank to select any means the Bank deem suitable to provide your Bank to Bank Transfer instructions to the applicable financial institution. These choices include banking channels, electronic means, fund transfer systems, mail, courier, or telecommunications services, intermediary banks and other organizations. You agree to be bound by the rules and regulations that govern the applicable fund transfer systems, such as CHIPS or ACH as published by the National Automated Clearinghouse Association (NACHA). The Bank will make all reasonable efforts to ensure that your Bank to Bank Transfer requests are processed on time; however, the Bank reserves the right to hold funds beyond the normal period, and any interest earned will be the property of the Bank.
If the Bank does not provide a Bank to Bank Transfer instruction on time, if the Bank causes an incorrect amount to be removed from an Account or if the Bank causes funds from an Account to be transferred to any account other than the Account specified in the applicable Bank to Bank transfer instruction, the Bank will be responsible for returning the improperly transferred funds and/or for directing any misdirected funds to the proper Account.
You agree that your Bank to Bank Transfer instructions constitute authorization for the Bank to complete the Bank to Bank Transfer. You represent and warrant to the Bank that you have enough money in the applicable Accounts to make any Bank to Bank Transfer you request that the Bank make on your behalf through the Bank to Bank Transfer Service. You understand and agree that the Bank is not liable under any circumstances for any losses or damages if, through no fault of the Bank, you do not have enough money to make the Bank to Bank Transfer and the Bank to Bank Transfer is not completed or is later reversed or if your financial institution does not permit the Bank to Bank Transfer or the Bank to Bank Transfer would exceed the credit limit on any applicable overdraft line.
You also understand and agree that the Bank is not responsible for any losses or damages if circumstances beyond our control (such as fire, flood, communication or Internet problems or failure of other financial institutions systems) prevent the Bank from making a Bank to Bank Transfer or if the Bank's website was not working properly and you knew about the breakdown when you started the Bank to Bank Transfer.
YOU UNDERSTAND AND AGREE THAT OUR BANK TO BANK TRANSFER SERVICE IS PROVIDED "AS-IS." EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR AS REQUIRED BY LAW, THE BANK ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE BANK TO BANK TRANSFER SERVICE IS AT YOUR SOLE RISK, THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BANK TO BANK TRANSFER SERVICE IS DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR THE OBTAINING OF SUCH MATERIAL AND/OR DATA.
EXCEPT AS EXPRESSLY SET FORTH ON THE BANK'S WEBSITE OR IN THIS AGREEMENT, THE BANK DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR THIRD PARTY RIGHTS, AND THE BANK MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BANK TO BANK TRANSFER SERVICE, THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE BANK TO BANK TRANSFER SERVICE, THE ACCURACY OF ANY INFORMATION RETRIEVED BY US FROM THE ACCOUNTS OR THAT THE BANK TO BANK TRANSFER SERVICE WILL MEET ANY USER'S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE BANK WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, ECONOMIC, PUNITIVE OR OTHER DAMAGES OF ANY KIND RESULTING FROM THE USE OF OR THE INABILITY TO USE THE BANK TO BANK TRANSFER SERVICE, ANY INACCURACY OF ANY INFORMATION OR AMOUNT RETRIEVED BY US FROM THE ACCOUNTS, ANY BREACH OF SECURITY CAUSED BY A THIRD PARTY, ANY TRANSACTIONS ENTERED INTO BASED ON THE BANK TO BANK TRANSFER SERVICE, ANY LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF A USER'S TRANSMISSIONS OR DATA OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE BANK HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify, defend and hold harmless the Bank, its affiliates, partners, officers, directors, employees, consultants, service providers and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from your use of the Bank to Bank Transfer Service, the Bank's reliance on the information, instruction, license and/or authorization provided by you under or pursuant to this Agreement, your violation of the terms of this Agreement or your infringement, or infringement by any other user of your Accounts, of any intellectual property or other right of any person or entity.
You understand and agree that the Bank's service provider is not a bank, a broker-dealer firm, or any other kind of financial institution. You represent and warrant that you are who you claim to be; you are the rightful owner of all content and the Accounts linked for the purposes of Bank to Bank Transfer Service; and you are rightfully authorizing us to access the Accounts.
You agree that our rights and remedies arising out of any breach of your representations and warranties in this Agreement, the limitations on our liability and our rights to indemnification under this Agreement are continuing and will survive any termination of this Agreement, notwithstanding the lack of any specific reference to such survivability in these provisions. The Bank's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of the Bank's right to subsequently enforce such provision or any other provisions of this Agreement.
10. On-Line Banking Fees
Depending on which component(s) of On-Line Banking you enroll in and/or use, you will be charged the applicable fees for On-Line Banking, Bill Payment Services and/or OLB Transfer Services. For a description of these fees, please see the Bank's fee schedule previously provided to you for Personal and/or Commercial Accounts, as applicable, as the fee schedule exists and as it may be amended from time to time. Once you have subscribed, you will be charged any applicable monthly fees whether or not you use On-Line Banking, and these fees will be deducted from your Payment Account.
The Bank reserves the right to change or add any fees for On-Line Banking, Bill Payment Services and/or OLB Transfer Services by the procedures outlined in Section 24 for amending this Agreement. In addition to these fees, the service charges and fees provided for in the Bank's fee schedules, and in any applicable deposit, installment loan, line of credit, and credit card agreements will continue to apply. You authorize the Bank to deduct all applicable fees from the account to which they apply.
11. Scheduling On-Line Banking Payments
ANY PAYMENT MADE THROUGH OLB BILL PAYMENT SERVICES REQUIRES SUFFICIENT TIME FOR YOUR PAYEE TO RECEIVE YOUR PAYMENT AND PROPERLY CREDIT YOUR ACCOUNT. TO AVOID THE IMPOSITION OF A FINANCE CHARGE OR OTHER CHARGES BY THE PAYEE, YOU MUST SPECIFY A PAYMENT REQUEST DATE THAT IS SUFFICIENTLY IN ADVANCE OF THE DUE DATE OF YOUR PAYMENT. ALL PAYMENTS THROUGH OLB BILL PAYMENT SERVICES MUST BE SCHEDULED SO THAT THE REQUESTED PAYMENT DATE IS AT LEAST FIVE BUSINESS DAYS PRIOR TO THE DATE THAT PAYMENT IS DUE. YOU ARE RESPONSIBLE FOR ANY LATE PAYMENT FEES, COSTS OR FINANCE CHARGES. THE BANK WILL NOT BE RESPONSIBLE FOR ANY CHARGES IMPOSED OR OTHER ACTION TAKEN BY A PAYEE RESULTING FROM A LATE PAYMENT, INCLUDING, BUT NOT LIMITED TO, FINANCE CHARGES AND LATE FEES.
12. Right to Stop Payments and Transfers Provisions Only Applicable to Personal Accounts
Under the EFTA, you have certain stop payment rights and obligations for "preauthorized electronic fund transfers," or "PEFT." A PEFT is an electronic fund transfer (including a payment) that is authorized in advance to recur at substantially regular intervals. One-time transfers or payments, however, are not PEFTs and are instead governed by Section 12.2.
12.1 Preauthorized Electronic Fund Transfers Provisions Only Applicable to Personal Accounts
If you are enrolled in OLB Bill Payment Services and/or the Bank to Bank Transfer Service, by using the features available within On-Line Banking, you can stop any PEFT that you have authorized the Bank to make. Alternatively, you can stop any such PEFT by calling us (see Section 15 for the telephone number). If you call, we may also require you to send us your request in writing within fourteen (14) days after you call. In general, whether you initiate the stop payment yourself or contact us to initiate the stop payment, you must do so no later than 11:00 PM ET on the Business Day prior to your requested payment/transfer date. If you properly delete or update a PEFT payment instruction or direct us to do so within this timeframe and the Bank does not do so, the Bank will only be liable for your actual losses or damages. We will charge you a fee as set forth in the Fee Schedule for each stop payment order you give that involves a payment or transfer to a party other than the Bank.
If you wish to discontinue or change your PEFT payments initiated by persons or companies other than the Bank, such as insurance companies, utilities or mortgage companies, you must contact them directly.
12.2 All Other Electronic Fund Transfers
If you are enrolled in OLB Bill Payment Services and/or the Bank to Bank Transfer Service, you can stop a one-time electronic fund transfer or payment that you have authorized the Bank to make by following the procedures set forth in Section 12.1 above. However, you should note that the EFTA does not obligate us to honor this request, and we do not guarantee that the stop will be made in time.
13. Periodic Statements
Payments or transfers you make using On-Line Banking will be indicated on the periodic statements we provide or make accessible by mail or delivery service. We may also provide or make accessible to you statement information electronically or by some other means. You agree to notify us promptly if you change your address or if you believe there are errors or unauthorized transactions in any statement or statement information (see Section 14).
14. Client's Responsibility
You must have enough available funds or credit in any account from which you initiate or authorize us to initiate a payment or transfer, or for you to initiate or authorize any other transaction involving the payment or transfer of funds.
You are responsible for all transactions that you initiate or authorize, including any transactions that you may unintentionally or inadvertently initiate, and any losses, charges, or penalties incurred as a result. If you permit other persons to use On-Line Banking or your Access Code, you are responsible for any transactions they initiate, including any losses, charges, or penalties incurred as a result. You are responsible for properly signing out of the Service and our website by following the "Sign-Out" process.
In regard to OLB Bill Payment Services and/or the Bank to Bank Transfer Service, you are responsible for providing us with the proper payee or transferee identification information, including the payee's or transferee's address, telephone number, the transferee's ABA routing number, and your identification or account number with the payee or transferee. If any of your payee or transferee information changes after you enroll and/or initiate any payment or Bank to Bank Transfer instruction, you are responsible for making the change and/or notifying us of these changes. In some cases, you may have to re-enter the payee or transferee. We are not liable or responsible if you fail to give us the correct information, and you should take the matter up with the payee or transferee receiving the funds.
The responsibilities set forth in this Section are in addition to your responsibilities set forth in other parts of this Agreement, including responsibilities set forth in the documents described under Section 1a.
15. Reporting Unauthorized Transactions or Theft or Loss of Access Code
If you believe that any of your accounts has been accessed without your permission, an unauthorized transaction has been made or may be made from your account without your permission or your Access Code has been lost or stolen, alert the Bank IMMEDIATELY by calling us at 877-982-5483 or write to us at:
Wilmington Trust
Attention: Direct Client Services - OLS
P.O. Box 8894
Wilmington, DE 19899
16. Client Liability
If you do not notify the Bank IMMEDIATELY of an event described in Section 15, you could lose all of the money in your account (plus your maximum overdraft line of credit, if any). Contacting the Bank immediately, especially by telephone, will help you reduce your potential losses. See Section 15 for Bank's contact information.
If we complete a payment or transfer that you initiate or authorize and we subsequently learn that you have insufficient funds for the transaction, you agree that we may, in our sole discretion, reverse the transaction or offset the shortage with funds from any other deposit or credit account(s) you have with us to the extent permissible by applicable law and the terms of any other relevant agreements. We may also charge you an overdraft or return fee as set forth in the Fee Schedule for each such payment or transfer.
16.1 Additional Client Liability Provisions Only Applicable to Personal Accounts
If someone uses your Access Code without your permission or your Access Code has been lost or stolen, you can lose no more than $50.00 if you notify the Bank within two Business Days of discovering any loss, theft or unauthorized use of your Access Code. However, you can lose as much as $500.00 if you do not notify the Bank within two Business Days of discovering the loss, theft, or unauthorized use and the Bank can show that it could have prevented someone from using your Access Code without your permission had we been timely notified.
If you do not report unauthorized transactions that appear on any of your periodic statements within 60 days after such statements are provided to you, you risk unlimited losses on transactions made after the 60-day period has passed if the Bank can show that it could have prevented someone from taking the money had we been notified within this 60-day period.
If a good reason beyond your control (such as a long trip or a hospital stay) kept you from telling the Bank, the Bank, at its sole discretion, may extend the time periods.
This liability applies to transfers affecting your account balances only, and not to extensions of credit such as cash advances or credit purchases. Liability for such extensions of credit is governed by your credit agreement(s) and disclosures.
17. Bank's Responsibility and Liability
If the Bank does not complete a transfer or a payment to or from your account on time or in the correct amount, according to its agreement with you, the Bank will be liable for your direct losses or damages. The Bank is responsible for completing transfers and bill payments on time according to your properly entered and transmitted instructions. However, the Bank will not be liable for completing transfers and bill payments:
We do not warrant or guarantee that the Service, the Internet or our suppliers will be available on a specified date or time or that the Service and the Internet will have the capacity to meet your demand during specific hours. Neither the Bank nor its suppliers will be liable for any damage that you may suffer arising out of use, or inability to use, the Service or products provided hereunder. Neither the Bank nor its suppliers will be liable for unauthorized access to the Bank's transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of your data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of the Bank's or its supplier's negligence.
Notwithstanding the above, in no event will the Bank or its suppliers be liable for indirect, special, incidental, consequential, economic, punitive, or other damages, including but not limited to loss of data or revenue or profits, arising out of the installation, use or maintenance of On-Line Banking and/or its related equipment, software, or online services or the Internet, or any attorneys' fees you may incur. In any case, the Bank will only be liable for actual proven damages if the failure to make the transaction resulted from a bona fide error despite the Bank's procedures to avoid such error(s).
There may be other exceptions to the Bank's liability as stated elsewhere in this Agreement and in the documents set forth in Section 1a. above.
18. Notices and Communications
The Bank may not immediately receive email that you send, including messages you may send to us through the electronic messaging feature within On-Line Banking. Therefore, you should not rely on email or electronic messaging if you need to communicate to the Bank immediately. For example, if you need to report a lost or stolen Access Code or to report an unauthorized transaction from one of your accounts, you should contact the Bank immediately by calling Direct Client Services (see Section 15). The Bank will not take actions based on your email or electronic messaging requests until the Bank actually receives your message and has a reasonable opportunity to act.
Notices from you will be effective when received by mail at the address specified in this Agreement. Except as otherwise provided in this Agreement, all notices required to be sent to you will be effective when we mail or deliver them to the last known address that we have for you in our records or when we make such notices available to you through On-Line Banking, at this electronic site or at the last known email address that we have for you in our records.
19. Error Resolution Provisions Only Applicable to Personal Accounts
In case of errors or questions about payments or transfers that you initiate or authorize through On-Line Banking, please refer to the section relating to errors or questions about your electronic fund transfers contained in the Wilmington Trust Deposit Account Agreement and Disclosure/ Arbitration Agreement previously provided to you.
21. No Signature Required
When using On-Line Banking to pay bills, you agree that the Bank, without prior notice to you, may debit any payment account(s) to pay checks that you have not signed by hand or by legally acceptable form of electronic signature (e.g., digital signature). When using On-Line Banking to make transfers from credit accounts, you agree that the Bank, without prior notice to you, may take any action required to obtain cash advances on your behalf, including charging your linked credit account at the Bank, without your handwritten or legally acceptable electronic signature.
22. Third Party Networks
You may not resell or redistribute any services you receive through On-Line Banking or from our suppliers.
You acknowledge and agree that neither the Bank nor its suppliers are responsible for the content of your transmissions that may pass through any ISP or over the Internet. You agree to take reasonable steps to ensure that you will NOT use the services provided to you or the Internet for illegal purposes, for transmission of threatening, obscene, or harassing materials, or to interfere with or disrupt other users, services or equipment. Disruptions include, but are not limited to, distributing chain letters or mass mailings of unsolicited email ("spamming"), propagating computer worms and viruses, or using the services and the Internet to make unauthorized entry to any other machine. Violation of the foregoing may result in termination of access rights to the offending party or parties.
23. Third Party Software; Virus Protection
The Bank makes no representations or warranties regarding the accuracy, functionality, configuration, or performance of any third party software that may be used in connection with On-Line Banking, including, but not limited to, personal financial management software, internet browsers, and pop-up blocking software.
The Bank is not responsible for any electronic virus or viruses that you may encounter. We encourage you to routinely scan your Computer, diskettes, and software using a reliable virus protection product to detect and remove any viruses found. Undetected or unrepaired viruses may alter, corrupt, damage, or destroy your programs, files, and even your Computer. Additionally, you may unintentionally transmit the virus to other Computers, diskettes, and software.
24. Amendment of this Agreement
You agree that from time to time the Bank may amend or change the terms of this Agreement including amendments or changes to add further On-Line Banking services. The Bank may do so by notifying you by posting a notice at this electronic site, or by mail or delivery of a written notice of such amendments or changes.
Your continued use of On-Line Banking is your agreement to any amendment(s) to or change of the Agreement, unless prohibited by applicable laws.
No attempted amendment of this Agreement by you will be binding on the Bank unless accepted in writing by the Bank.
24.1 Additional Amendment of this Agreement Provisions Only Applicable to Personal Accounts
Where the EFTA and REG E apply, the Bank may amend this Agreement at any time by sending notice to you by mail or, to the extent permitted by law, by email or electronic communication through On-Line Banking, before the effective date of the amendment. Where the EFTA and REG E apply, at least 21 days' advance notice is always required if the change would result in:
If the EFTA and REG E apply, we are not required to give notice if an immediate change in terms or conditions is necessary to maintain or restore the security of an account or an electronic funds transfer system. However, if such a change is permanent, and disclosure would not jeopardize security, we will notify you in writing on or with the next scheduled periodic statement or within thirty days of making the change permanent.
If the EFTA and REG E do not apply to a particular transaction, and other state or federal laws do not specify any notice or other requirements for an amendment, we will decide what kind of notice (if any) we will give you and the method of providing any such notice.
25. Assignment
The Bank may assign its rights and delegate its duties under this Agreement to a company affiliated with the Bank or to any other party.
26. Termination
The Bank reserves the right to terminate this Agreement and your use of On-Line Banking, in whole or in part, at any time without prior notice.
Either you or the Bank may terminate this Agreement and your On-Line Banking access at any time upon giving written notice of the termination to the other party. If you terminate On-Line Banking, you authorize the Bank to continue making transfers and bill payments you have previously authorized and continue to charge OLB Fees until such time as the Bank has had a reasonable opportunity to act upon your termination notice. Once the Bank has acted upon your termination notice, the Bank will make no further transfers or payments from your accounts, including any transfers or payments you have previously authorized. If the Bank terminates your use of On-Line Banking, the Bank reserves the right to make no further transfers or payments from your accounts, including any transactions you have previously authorized.
In the event that you or the Bank terminates this Agreement and your On-Line Banking access, you will still continue to be bound by and must comply with any other agreements, disclosures and fee schedules governing your accounts with us.
27. No Waiver
The Bank will not be deemed to have waived any of its rights or remedies unless such waiver is in writing and signed by the Bank. No delay or omission on the part of the Bank in exercising its rights or remedies will operate as a waiver of such rights or remedies or any other rights or remedies. A waiver on any one occasion will not be construed as a bar or waiver of any rights or remedies on future occasions.
28. Captions
The captions of sections hereof are for convenience only and will not control or affect the meaning or construction of any of the provisions of this Agreement.
29. Resolution of Disputes
Unless you have elected to reject our Arbitration Agreement as set forth in and in accordance with the terms and conditions contained in our Deposit Account Agreement and Disclosure/Arbitration Agreement (the "Deposit Account Agreement"), we may elect to have any disputes, claims or other matters relating to this On-Line Banking Client Agreement resolved by binding arbitration in accordance with the terms set forth in the Deposit Account Agreement.
30. Governing Law
Regardless of where you live or work or where you access On-Line Banking, this Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware and the federal laws of the United States of America. The law governing any deposit account subject to this Agreement will be as set forth in the Deposit Account Agreement.
31. Enforcement
In the event that either party brings legal action to enforce this Agreement or collect overdrawn funds on accounts accessed under this Agreement, the prevailing party will be entitled, subject to applicable law, to payment by the other party of its reasonable attorneys' fees and costs, including fees on any appeal, bankruptcy proceedings, and any post-judgment collection actions, if applicable. If there is a lawsuit, you agree that it may be filed and heard in the State of Delaware if allowed by applicable law.
32. Severability
Should any part of this Agreement be held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible to reflect the original intent of the Agreement, and the remaining portions will remain in full force and effect.
Rev. 06/2005
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Questions about products or services? Call 1-800-814-8386, M-Th. 8 AM - 7 PM, Fri. 8 AM - 6 PM, and Sat. 9 AM - 1 PM ET.
Questions about your account? Call 1-800-523-2378, M-F 7 AM - 10 PM, and Sat. 9 AM - 1 PM ET. Need technical assistance? Call 1-877-982-5483, M-F 8:30 AM - 11 PM, and Sat. 9 AM - 1 PM ET. Para asistencia en Espaņol, llame 1-800-523-2378 y oprima el numero dos. |
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