E-Sign Disclosure and Agreement for the Digital Banking Services

As part of your relationship with us, we want to ensure you have all of the information you need to effectively manage your Digital Banking Services. We are required by law to give you certain information “in writing,” which means you are entitled to receive it on paper. We may, however, provide some of this information to you electronically, instead, with your prior consent. This City Bank Digital Banking Services E-Sign Disclosure and Agreement (the “E-Sign Disclosure and Agreement”) describes how City Bank (“City Bank,” “Bank,” “we,” or “us”) communicates with you electronically, provides additional detail about the Electronic Communications (as that term is defined below) that we provide you, and sets out hardware and software requirements you need to receive these Electronic Communications. Please review this E-Sign Disclosure and Agreement as it applies to Electronic Communications and will be effective until expressly withdrawn by you. Any capitalized terms not defined in this E-Sign Disclosure and Agreement shall have the meaning assigned to them in the City Bank Digital Banking Services Agreement.

Electronic Communications

You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Electronic Communications”) that we provide in connection with the Digital Banking Services. Electronic Communications include, but are not limited to, agreements and policies you agree to in connection with the Digital Banking Services (e.g., the City Bank Digital Banking Services Agreement) as well as disclosures related to services offered through the Digital Banking Services, including updates to such agreements, policies, and disclosures. We may provide these Electronic Communications to you by emailing them to you at the primary email address listed in your Digital Banking Services account or by making them accessible in the Digital Banking Services. Electronic Communications will be provided online and viewable using in-app display features, browser software or .pdf files. In such cases, you will be able to print the Electronic Communication and/or have it emailed to you.

Required Hardware and Software

You are responsible for maintaining all software and hardware necessary for receiving, viewing and maintaining record of the Electronic Communications. By your acceptance of this E-Sign Disclosure and Agreement, you represent that you will maintain all hardware and software necessary to receive, view and maintain (including, but not limited to saving and/or printing) any Electronic Communications provided to you. You must have: (a) a valid email address on file with City Bank; (b) a computer and/or mobile device (e.g., personal computer, mobile phone, tablet, Apple Watch, or similar device) with internet access and an appropriate operating system, such as Microsoft®, Windows, iOS or Android operating system; and (c) and sufficient storage space to save Electronic Communications (whether presented online, in emails or .pdf) or the ability to print Electronic Communications. Please visit the Apple Store or Google Play Store for the current supported OS versions for mobile devices. We will notify you if there are any material changes to the hardware or software needed to receive Electronic Communications from us. By giving your consent, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Electronic Communications for your records. You may print or save a copy of these Electronic Communications for your records as they may not be accessible online at a later date.

You are responsible for the installation, maintenance, and operation of your computer and/or mobile device. We are not responsible for any errors or failures from any malfunction of your computer and/or mobile device, for any virus, other problems or changes that may be associated with the use of your computer and/or mobile device, including, for example, the cost of your internet or mobile service provider.

Additional Copies

Additional copies of any Electronic Communication may be provided to you without charge by contacting the Bank within 90 days of the original date of the communication. You may also request paper copies of any Electronic Communication within 90 days of the communication by contacting City Bank at 1-800-OUR-BANK, but the Bank reserves the right to assess a reasonable fee for providing such paper copies.

Withdrawal of Electronic Acceptance of Disclosures and Notices

You may withdraw your consent to receive Electronic Communications by contacting City Bank at 1-800-OUR-BANK. If you fail to provide or if you withdraw your consent to receive Electronic Communications, City Bank reserves the right to deny your request for enroll in the Digital Banking Services, terminate your Digital Banking Services, or charge you fees for paper copies.

Federal Law; Termination and Changes

You acknowledge and agree that your consent to Electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you and we both intend that the E-SIGN Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. We reserve the right, in our sole discretion, to discontinue the provision of your Electronic Communications, or to terminate or change the terms and conditions on which we provide Electronic Communications. We will provide you with notice of any such termination or change as required by law.

Accept or Decline

By clicking “Accept” on the Website or the Mobile App, you are agreeing to receive disclosures electronically as stated in this E-Sign Disclosure and Agreement and you are agreeing to the following City Bank Digital Banking Services Agreement.

If you DO NOT want to consent to electronic delivery of disclosures, PLEASE EXIT THE WEBSITE OR THE MOBILE APP NOW.

If you consent to electronic delivery of disclosures, including the following City Bank Digital Banking Services Agreement, please click the “Accept” button on the Website or the Mobile App.

DIGITAL BANKING SERVICES AGREEMENT

9/12/2022

PLEASE REVIEW THE FOLLOWING CITY BANK DIGITAL BANKING SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY.  BY CLICKING “I ACCEPT” BELOW OR OTHERWISE USING OR ACCESSING THE SERVICES DESCRIBED HEREIN, YOU ARE ACCEPTING THIS AGREEMENT AND AGREEING TO BE BOUND BY ALL TERMS AND CONDITIONS SET FORTH HEREIN.  BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT THE TERMS AND CONDITIONS OUTLINED IN THIS AGREEMENT WILL APPLY TO AND GOVERN YOUR USE OF ANY AND ALL DIGITAL, MOBILE AND ONLINE BANKING SERVICES OFFERED BY CITY BANK, AND THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT, AND YOU WILL CREATE A VALID AND BINDING LEGAL CONTRACT BETWEEN YOU AND CITY BANK. 

For purposes of this Agreement, the terms “City Bank,” “Bank,” “we,” and “us” mean City Bank and any of City Bank’s affiliates. “You,” “your,” and “Customer” refer to the accountholder authorized by City Bank to use the Digital Banking Services (as defined herein), and anyone else authorized by that accountholder to exercise control over the accountholder’s funds through the City Bank Website, Mobile Application or Digital Banking Services. “Account” or “accounts” means your accounts at City Bank. “Business Days” mean Monday through Friday, excluding bank holidays.

THE TERMS AND CONDITIONS OF THIS AGREEMENT PROVIDE, AMONG OTHER THINGS, THE FOLLOWING WAIVERS:

• Waiver of “two or more signature” requirements on accounts;
• Waiver of right to trial by jury;
• Waiver of certain liability we might have to you (or limitations regarding the same); and
• Waiver of any challenge to the personal jurisdiction of any state or federal court in Lubbock County, Texas, consent to the exclusive jurisdiction such courts, and your agreement with us that Texas law will control this Agreement, without regard to conflict-of-law rules.
  

1.         What This Agreement Covers.   This Agreement covers your use of City Bank’s Digital Banking Services.  City Bank’s “Digital Banking Services” provide access to your deposit account(s), loan account(s), and ATM and check card information via the internet. Access for Digital Banking Services will be provided through our Website (defined below) or through software (“Mobile App”) designed for your mobile, tablet or wearable device (each, a “Mobile Device”).  Our “Website” refers to all city.bank websites and all other web pages maintained by us and accessible through city.bank or through our Mobile App. It also includes any other website or web pages you can access only after you, or a person for whom you are acting as an authorized representative, enter into this Agreement as a condition to accessing the Website. It does not include any website that has its own separate agreement governing online access, or any other Third Party Website not hosted and/or maintained by City Bank.

You understand that these industry standards are dynamic and constantly developing.  By consenting to the enrollment process you acknowledge and understand that there are risks to electronic delivery of account statements and notices, including but not limited to delay or failure of delivery due to technical difficulties, weather conditions, and matters beyond our reasonable control.  You have considered the historical and potential future content of your account statement(s), the risk associated with electronic delivery of account statements and our security procedures, and you find that our security measures are reasonable.  If in the future you conclude that our security procedures cease to be reasonable, you must terminate this Agreement immediately.  

2.         The terms and conditions of this Agreement are in addition to, and shall supplement the terms, conditions, rules, and regulations that apply to any of your existing City Bank accounts or services of City Bank which you currently use.  Without limiting the foregoing, this Agreement is in addition and supplemental to: a) any deposit agreement you have regarding any bank account(s) you have with City Bank; b) the General Terms of Use found on our Website; c) the terms or instructions appearing on a screen when enrolling for, activating, accessing, or using any services on our Website or through the Mobile App; d) our rules, procedures and policies, as amended from time to time, that apply to the Digital Banking Service, e) any then-current rules and regulations of any funds transfer system or payment system used in connection with any account you access through the Bill Pay Services; and f) state and federal laws and regulations, as applicable.  Your deposit agreements will continue to apply to your relationship with us, and if this Agreement conflicts with another agreement, or another agreement has terms that are not addressed in this Agreement, then the other agreement will control and take precedence, unless this Agreement specifically states otherwise. The other agreement will only control with respect to the Account or service it is associated with, and only to the extent necessary to resolve the conflict or inconsistency. 

The information you provide to City Bank and its third-party service providers, including your personal information, is subject to the terms of City Bank’s Privacy Policy, available at https://www.city.bank/privacy-policy, and City Bank’s Digital Privacy Policy, available at https://www.city.bank/digital-privacy-policy. By entering into this Agreement, you represent that you have read, understood, and accepted City Bank’s Privacy Policy and Digital Privacy Policy.

In addition, you understand and agree you are still subject to the terms and conditions of any agreement you have with any unaffiliated third-party service providers, including, but not limited to your internet service provider (e.g., AT&T, Comcast, Time Warner, etc.), mobile service provider (e.g., AT&T, Verizon, Sprint, T-Mobile, etc.) or any third-party provider of or marketplace for the Mobile App (e.g., Apple, Inc., or Google, Inc. (Android)), and this Agreement does not amend or supersede any of those separate third-party service provider agreements. You understand that such services may provide for fees, charges, limitations and restrictions which might impact your use of the Digital Banking Services (e.g., data use charges, text messaging charges, etc.), and you agree to be solely responsible for all such fees, charges, limitations and restrictions. You agree that only your mobile service provider is responsible for the performance and operation of its products and services, including your mobile device and the mobile service provider’s own network. You agree to resolve any problems with your mobile service provider without involving City Bank, Apple, Inc. or Google, Inc. (Android). You must comply with applicable third-party terms when using the Digital Banking Services (e.g., you cannot be in violation of your wireless provider agreement when using the Digital Banking Service).

3.         Digital Banking Services, Transfers and Payments.  Subject to the terms and conditions of this Agreement, you may use the Digital Banking Service(s) we offer to you from time to time to access your demand deposit account(s), certificates of deposit and loans through the Website or Mobile App, perform authorized transactions through the Website or Mobile App, and conduct the Digital Banking Services contained in this Agreement. The available categories of eligible accounts and Digital Banking Services are described on our Website and may change from time to time, at our sole option. 

The Digital Banking Services (or “Services”) include, but are not limited to, the ability for you to:

• View current balance information for your City Bank accounts
• Review transaction history for your accounts
• View branch locations
• View contact telephone numbers and additional contact details
• Receive and send electronic messages to City Bank
• Enroll in account alerts and notifications
• View rewards level and rewards status for rewards bank accounts, if applicable
• Make internal funds transfers between your City Bank accounts
• Make external finds transfers from your City Bank accounts to other bank accounts
• Turn debit card functionality on and off for fraud purposes (e.g., for lost or stolen debit cards)

Some of the above Digital Banking Services may not be available for certain accounts or customers. In some instances, balances and transaction history may only reflect activity conducted through the close of the previous Business Day. When we introduce new features or eliminate features, we will notify you through updates to our Website or Mobile App accordingly. You shall be solely responsible for acquiring and maintaining a computer or any other electronic device and equipment that can handle and access the Digital Banking Service, and for all costs associated with accessing the same through your electronic device of your own choice (e.g., personal computer or Mobile Device). City Bank reserves the right to add or remove various components of the Services in Bank’s sole discretion. We reserve the right to modify the scope and type of activities offered via the Services at any time in our sole discretion. We also reserve the right to refuse to make any transaction you request through the Services for a variety of reasons as set forth in any of the agreements listed in Section 2 governing your use of the Services.

By using the Digital Banking Services, you are providing Bank and Bank’s third-party service providers express consent to use aggregated and anonymized engagement and usage data Bank obtains from your use of the Digital Banking Services for monitoring and quality control purposes, analysis of aggregated Digital Banking Services user data, and any other purpose necessary to provide the Digital Banking Services under this Agreement.

4.         Owners, Authorized Representatives and Delegates.  By accessing any Digital Banking Services provided hereby, you agree that you have the right to provide us with instructions, make any decision, obtain any information or make any request associated with the Account(s) and related Digital Banking Services which are the subject hereof. You further agree that each of your authorized representatives, as designated to us in writing, will be acting as your agent and will be bound by this Agreement and any separate agreement governing the Account(s). All transactions that an authorized representative performs on an Account(s) or through the Digital Banking Services, including those you did not want or intend, are transactions authorized by you. You are solely responsible for those transactions, and we are not responsible for them.

If you make a person an authorized signer on an Account, we may in our discretion treat that authorized signer as an authorized representative for purposes of access, use and modification of the Digital Banking Services. If you notify us that an authorized representative is no longer authorized, only transactions that you did not want or intend and that the authorized representative performs after you notify us, and we have a reasonable opportunity to act on the notice, will be considered unauthorized.

For business accounts, the owner of the Account may manage the authority of your authorized representatives through the Website or the Mobile App. The owner of the Account who initially enrolls in the Digital Banking Services will be designated as the Administrator of the Account(s) and will have full access to all of the features and benefits of Digital Banking Services.  We offer the ability to create multiple usernames and passwords for various persons within your organization to have access to your Account(s) through the Digital Banking Services, each with the access level you designate. In some circumstances, we also permit you to link other business accounts you own or control. Multiple usernames and linking Accounts are discussed below. 

An authorized representative acting within the authority established using the Website will be called a “Delegate” throughout this Agreement. You agree that you, and not we, are responsible for supervising all of your Delegates and monitoring the actions they take on your behalf, whether or not we provide tools for managing their authority.  All transactions that a Delegate performs on an account within the scope of the authority you grant through the Website, including any transactions you did not want or intend, are transactions authorized by you. You are solely responsible for those transactions, and we are not responsible for them. If you revoke or change the authority of a Delegate using the Website, only transactions that you did not want or intend and that the Delegate performs after you change their authorization, and we have a reasonable opportunity to act on that notice, will be considered unauthorized transactions. To notify us that you want to terminate a Delegate appointment you have made on the Website, you must access the Website using your username and password, select the applicable link to manage access to your accounts on the Account Services page, and follow the directions to delete the Delegate, or you must contact City Bank customer service by calling 1-800-OUR-BANK (1-800-687-2265) with your notification to remove the Delegate. 

THE BANK WILL HAVE NO LIABILITY TO YOU FOR UNAUTHORIZED PAYMENTS AND TRANSFERS MADE USING THE ACCESS CODES YOU ASSIGN THAT OCCURS BEFORE YOU HAVE NOTIFIED US OF POSSIBLE UNAUTHORIZED USE AND WE HAVE HAD A REASONABLE OPPORTUNITY TO ACT ON THAT NOTICE.  

For each Delegate, you may designate the activity level - Inquiry or Cash Management - for each linked account. You agree that by granting Cash Management access you are authorizing a Delegate to transfer funds, wire funds, perform stop payment requests, originate ACH transactions (only if you have signed a separate ACH Processing Agreement), perform account maintenance and view account transactions for any Account linked to the Digital Banking Services. Inquiry access allows a Delegate to transfer funds within accounts linked by the Digital Banking Services, perform stop payment requests, and view account transactions for the linked accounts. 

If you have multiple businesses that you are authorized to obtain Digital Banking Services for, and want to link the accounts of the other business to the accounts covered by this Agreement, you will need to agree separately to this Agreement for each of your businesses. Upon doing so, you may link the accounts of the businesses, at your risk and that of the businesses, but not of City Bank, so that you and any Delegate of any of the businesses may use a common username and access code for the Digital Banking Services for all linked accounts.  This can only be done if you are authorized to link the accounts of the different business and use all the functions of Digital Banking Services for each business.  You further agree to inform the bank if the authority over any linked account of any authorized agents or employees given access to the account through Business Internet Banking Services decreases or otherwise changes in any manner.  City Bank is not liable if your authority over any account decreases until you inform us of the change by notifying us at 1-800-OUR-BANK (1-800-687-2265) or at City Bank, Attn: Digital Banking, P.O. Box 5060, Lubbock, Texas 79408-5060, and only after we have had a reasonable time to act on such notification.

You are responsible for ensuring that each Delegate maintains the confidentiality of his or her username, password, or other login identification.

You agree that each Delegate will access and use each Account, and Digital Banking Services, in accordance with the authority given to the Delegate by the delegating owner. Each time the Delegate accesses, views, or transacts on an Account or through Digital Banking Services, you represent and warrant to us that the Delegate’s action is authorized by the delegating Owner. If we receive conflicting instructions, or if we believe that an Account’s security or our security may be at risk as a result of a Delegate, we may at our sole discretion terminate the Delegate’s access to the Service, an Account, or the Digital Banking Service, or prevent the individual from being a Delegate, without prior notice to you or any account Owner.

The authority of a Delegate will terminate: (a) when we are notified by an Owner through the appropriate channel that the Delegate’s authority is terminated and we have a reasonable opportunity to act on the notice, (b) when we are notified by an Owner that the Owner appointing the Delegate ceases to be an Owner on the Account and we have a reasonable opportunity to act on the notice, (c) in the case of Consumer accounts and sole-proprietor Business accounts, upon our receiving written notice of the death or incapacity of the delegating Owner from a court of competent jurisdiction or from a source that we consider official and reliable and we have a reasonable opportunity to act on the notice, or (d) at our sole discretion if an Owner or Delegate breaches any provision of this Agreement.

5.         Use of Services. You agree that you will learn how to use the Digital Banking Services from the instructions contained within the Services, and you agree that you will contact us at the service contact information in Section 14 of this Agreement if you have any questions about or problems with the Services. If the Digital Banking Services are modified, you are responsible for understanding how to use any modifications. You may not copy (other than a copy for personal or business use), modify, distribute, transmit, display, perform, reproduce, transfer, resell, lease, rent, distribute access to or republish any of the contents of these Services without the prior written consent of Bank, which may be withheld in its sole discretion. Unless otherwise subject to the provisions of Regulation E for consumer customers as further described in the Deposit Agreement, Bank will not be liable to you for any losses caused by your failure to properly use the Services, your personal computer or your Mobile Device.

You agree not to use the Services in any way that would: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Service to impersonate another person or entity; (c) violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-money laundering or bank secrecy); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) potentially be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt the computer networks connection to the Service; (i) interfere with or disrupt the use of the Service by any other user; or (j) use the Service in such a manner as to gain unauthorized entry or access to the Bank’s computer systems or the computer systems of others.

6.         Waiver of requirement for two or more signatures.  You agree that any requirement of verifying two or more signatures on any item, such as checks, will not apply to electronic or telephone transfers, and we will have no liability when making these kinds of transfers without the requisite verification. This means that any person who is an authorized signer on your Account is authorized by you to individually make electronic or telephone transfers, even though that person’s authority to transfer or withdraw funds from your account by some other means (e.g., by check) must be exercised jointly with one or more other persons. This provision controls and takes precedence over any conflicting provision in any other agreements you have with us.

7.         Accessing Accounts and Digital Services through the Website or Mobile App.  You authorize City Bank to provide you (and in the case of a business account, to your authorized users and Delegates) access to your Accounts and the Digital Banking Services through the Website or Mobile App. You may access your Accounts and our Digital Banking Services through the Website or Mobile App to obtain information and perform transactions as authorized on the Website, or through the Mobile App.  To access your Accounts and the Digital Banking Services through our Website or through the Mobile App you must have a username, a password and the required hardware and software as described on the Website. You must also comply with any other security procedures and policies we may establish from time to time.  Your username and password for access through our Website and through the Mobile App may be different.  Subject to the terms of this Agreement, you will generally be able to access your Accounts and the various Digital Banking Services through the Website or Mobile App 7 days a week, 24 hours a day. At certain times, the Digital Banking Services may not be available due to system maintenance or circumstances beyond our control.  

8.         Mobile Banking Equipment and Software.  You must obtain the Bank’s Mobile App in the Apple or Google (Android) app stores and install it on your Mobile Device in order to become approved and use the Digital Banking Services. You must comply with the Mobile Device hardware, software, and other requirements, as well as applicable Security Procedures, as set forth in this Agreement and in any related documentation or any supplemental information and/or instructions provided by Bank. 

For the Remote Deposit Capture Service in particular, you understand that failure to comply with Mobile Device hardware, software and other requirements regarding the Services may result in you being unable to generate a Sufficient Image Copy in order to create an Electronic Image to complete a Remote Deposit Capture Service deposit.

In addition to other limitations on Bank’s liability contained elsewhere in this Agreement, you understand, acknowledge and agree that Bank is not responsible for any loss or damages resulting from any errors or failures of your Mobile Device or data processing systems, including, but not limited to any Mobile Device virus or malware attack (such as a keystroke logging program or similar malware), any attack by a person attempting or actually gaining unauthorized access to the data owned by you, or any Mobile Device network problems that may be associated with your access and use of our Services.

For avoidance of doubt, you understand, acknowledge and agree that all data provided by you to Bank (including, but not limited to, electronic images or Substitute Checks) retained on any processing equipment or processing software (including your Mobile Device used by you in conjunction with the Services), and all data produced, compiled or otherwise provided by Bank to you, in any form or format, is your sole and exclusive property and copies thereof shall be provided to you at your request from time to time and at any time. Once such data owned by you is delivered by Bank to you, retrieved by you from Bank, or otherwise created as a byproduct of a transaction between you and Bank and retained by you, such data owned by you is solely within your possession and control.

The license granted to you for the Digital Banking Services as accessed via the Bank’s Mobile App is a non-transferable license to use the Digital Banking Services on an iOS or Android Operating System product that you own or control and as permitted by the usage rules and terms of service governing the Apple, Inc. App Store or the Google, Inc. Android App Store, as applicable. In addition, you acknowledge that neither Apple, Inc. nor Google, Inc. (Android) has any obligation whatsoever to furnish any maintenance and support services with respect to Digital Banking Services accessed via the Bank’s Mobile App.

9.         Terminating Your Access to the Digital Banking Services.  We reserve the right to terminate your access to the Digital Banking Services, if you violate any terms of this Agreement (including the failure to pay fees under any applicable fee schedule) or any other agreement you have with us, and you agree that we may suspend or terminate your access to any one or more of your Accounts and Services if you do so. We will not be required to reinstate or re-activate your access.  Furthermore, if you close all of your Accounts and terminate your Services, or withdraw from the Services, we may suspend or terminate your access without prior notice to you. In some cases, if you close your Accounts, you may also lose access to your Digital Services and we may terminate your access to the Services. We will not be required to reinstate or re-activate your access. Also, if you have no open and eligible Accounts linked to the Services, or do not use the Services for a period of 12 consecutive months, we may, in our sole discretion, terminate your access without prior notice to you.

10.       Security.  

A.  Generally. In order to maintain secure communications and reduce fraud, you agree to protect the security of your account numbers, codes, marks, signs, public keys, usernames, passcodes, pass phrases, security questions, and/or any other means of identification.  City Bank reserves the right to block access to the Digital Banking Services to maintain or restore security to City Bank systems if City Bank reasonably believes your security features have been or may be obtained or are being used or may be used by an unauthorized person(s). You are liable and responsible for all Digital Banking Services transactions made using your means of identification, whether those transactions are made by you or any person you authorize, permit or enable to have your means of identification (even if the person exceeds your authority) or by any person who obtains through you, by whatever means, your means of identification. If you have given someone your means of identification and wish to terminate their authority, or if you know or believe that your means of identification otherwise is compromised, you must notify City Bank so that City Bank can take the necessary steps to change the means of identification. You agree to defend, hold harmless and indemnify City Bank from and against any and all claims of any nature arising out of any such access by a person you have authorized, permitted or enabled to have access to your City Bank accounts via the Digital Banking Services. For Business Accounts, you agree that we may send notices and other communications including access code confirmations, to the current mailing or electronic address shown in our records, whether or not that address includes a designation for delivery to the attention of any particular individual. You further agree that City Bank will not be responsible or liable to you in any way if information is intercepted by an unauthorized person, either in transit or at your place of business.  You agree to: 1) keep your access code secure and strictly confidential, providing it only to authorized signers on your account(s); 2) instruct each person to whom you give your access code that he or she is not to disclose it to any unauthorized person; and 3) immediately notify us and select a new access code if you believe your access code may have become known to an unauthorized person. 

CITY BANK WILL HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED PAYMENT OR TRANSFER MADE USING YOUR ACCESS CODE THAT OCCURS BEFORE YOU HAVE NOTIFIED US OF POSSIBLE UNAUTHORIZED USE AND WE HAVE HAD A REASONABLE OPPORTUNITY TO ACT ON THAT NOTICE. 

We may suspend or cancel your access code even without receiving such notice from you, if we suspect your access code is being used in an unauthorized or fraudulent manner.

For business Accounts, by using the Digital Banking Services, you acknowledge and agree that this Agreement sets forth security procedures for digital  banking transactions which are commercially reasonable. You agree to be bound by instructions, whether authorized or unauthorized, which we implement in compliance with these procedures, unless you have given us prior notice of possible unauthorized use (and we have a reasonable opportunity to act on such notice). You also agree to comply with all of our present and future security procedures with respect to transactions and services covered by this Agreement. This includes, but is not limited to, protection of Login IDs, passwords and other personal and business information. Our security procedures are contained in this Agreement and in other written procedures we may provide to you.

B.   Security Procedures. The Bank’s Digital Banking Services utilize a comprehensive security strategy to protect your accounts and transactions conducted over the internet.  To access the Digital Banking Services, you understand that you will be required to enter your Login ID and password. The Services may include your name and certain information about your account, such as the last four (4) digits of your account number or specific account transaction information. You understand and acknowledge that transmission of your masked account number and specific information, including dollar amounts or individual payees and payors, does not constitute transmission of personal or private information, and you hereby authorize us to send such information via the Services. Use of our normal security procedures for maintaining confidentiality and security of information constitutes fulfillment of our obligations to exercise due care.

As part of the Security Procedures, Bank may employ various authentication technologies, including, but not limited to, use of Login IDs, passwords and other “Additional Authentication Information” (“AAI”) that Bank may require you to provide at Bank’s sole discretion. Bank employs various security and authentication technologies to ensure you are communicating directly with Bank, and also to ensure your personal computer or Mobile Device is communicating with a legitimate Bank computer. You are responsible for the establishment and maintenance of your internal procedures reasonably adapted to insure the confidentiality and security of Security Procedures. YOU UNDERSTAND AND AGREE THAT YOU WILL BE RESPONSIBLE FOR MAINTAINING SECURITY AND CONTROL OVER YOUR LOGIN ID AND PASSWORD PROVIDED BY BANK, AND SHALL USE SECURITY FOR SUCH ITEMS COMPARABLE TO THE SECURITY AND CONTROL YOU WOULD USE FOR CASH, BUT IN NO EVENT LESS THAN REASONABLE SECURITY AND CONTROL IN THE CIRCUMSTANCES.

If you have reason to believe that any Security Procedure has or may have become known by unauthorized persons, you shall immediately notify the Bank by telephone and confirm such oral notification in writing to Bank within twenty-four (24) hours of the oral notification. Bank will replace the Security Procedures in accordance with the Bank’s standard security requirements related to the Services. To the maximum extent permitted by applicable law, you will be solely liable for all transactions initiated before the Bank has received such notification and has had a reasonable opportunity to act on such notification. Bank reserves the right to change any or all of the Security Procedures offered and/or used at any time by giving oral or written notice to you. You agree that your use of the Services after the Bank provides notice of such changes constitutes your acceptance of the new Security Procedures. You acknowledge that the purpose of Security Procedures is to authenticate the identity of the person initiating the action, not to detect errors in any transmission or content. Bank is not agreeing to any Security Procedures or other procedure for the detection of errors. You represent that for RDC Services, you consider the Security Procedures to be commercially reasonable with respect to the size, type, and frequency of deposits you anticipate submitting.

No Bank employee or any company affiliated with or a third-party service provider of Bank will contact you via email or phone requesting your mobile ID or mobile password. If you are contacted by anyone requesting this information, DO NOT GIVE ANY OF YOUR INFORMATION OUT, and please contact us immediately to report the details of the incident.

11.       Copyrights and Other Intellectual Property. Except where otherwise expressly noted, all contents of the Services, including the graphics, icons and overall appearance of the Services, are the sole and exclusive property of Bank, its subsidiaries or affiliates, or third parties with whom Bank utilizes to provide any portion of the Services. Certain of Bank’s trademarks and/or service marks are also included in the Services. The posting of the contents of the Services neither constitutes a waiver of any of Bank’s proprietary rights nor any other party's proprietary rights, including but not limited to, copyrights, trademarks, service marks, patents, and other intellectual property, nor a transfer by implication, estoppel, or otherwise of any such rights or of any license to the Services user or to any third party. Contents of the Services are protected by United States and international copyright laws, both as individual works and as a collection and by United States and international trademark laws. You agree not to delete any copyright, trademark or similar notice from any Contents you obtain from the Services.

The display of third-party trademarks within the Services does not grant you a license of any kind. Any downloading of contents of the Services or any other service linked to the Services may be a violation of federal trademark and copyright laws. Bank and you acknowledge and agree that, in the event of any third-party claim that the Services or your possession or use of the Services infringes that third party’s intellectual property rights, Bank and its third-party service providers are solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

12.       Links to Other Services. City Bank may establish links between the Digital Banking Services and one or more services operated by third parties. City Bank has no control over any such other services or the contents therein. The existence of any such links shall not constitute an endorsement by City Bank of such services, the contents of the services, or the operators of the services.

13.       Transmissions to and from the Digital Banking Services. Except where expressly indicated otherwise, transmissions to and from the Digital Banking Services or directed to City Bank, including emails, are not sent in a secure form, can be intercepted by third parties, and may not be immediately received by the appropriate business unit at City Bank. Please do not use email to send us communications which contain confidential information, which we require to be in writing, or which need our immediate attention. Please contact us at the information listed in Section 14 of this Agreement instead. Any transmission to this Digital Banking Services, including emails, shall be deemed and remain the property of City Bank. City Bank shall be free to use, for any purpose, any ideas, concepts, know-how, or techniques provided by a Digital Banking Services user to City Bank through the Digital Banking Services.

14.       Digital Banking Services Contact. City Bank and any of its third-party service providers are the developers of the Digital Banking Services. If you have any questions, complaints or claims with respect to the Digital Banking Services, you may contact us by phone at 1-800-OUR-BANK or by writing to us at 5219 City Bank Parkway, Lubbock, Texas 79407, Attention: Digital Banking.

15.       Use of Email Address. We may send messages relating to the Digital Banking Services to the email address we have on file for you and notify you that responses to your payment inquiries or customer service inquiries are available, or as otherwise described in any applicable agreements governing the Digital Banking Services. Bank will not, however, include any account numbers, access codes or similar non-public personal information in any email response to you. If, for any reason, your email address changes or becomes disabled, please contact City Bank immediately so that we can continue to provide you with automated messages.

16.       Location-Based Information. If you use any location-based feature of the Digital Banking Services, you agree that your geographic location and other related personal information may be accessed and disclosed via the Digital Banking Services. If you wish to revoke the Digital Banking Services access to such geographic location information, you must cease using the location-based features of the Digital Banking Services.

17.       E-Docs. You may enroll to receive digital (paperless, online-only) statements and documents for certain accounts and for your Digital Banking Services (“E-Docs”).  By enrolling in E-Docs, you agree to replace your mailed (paper) statements and documents, including notices, with an electronic versions (usually in a PDF format) that you can view on the Website or Mobile App, save to your computer, or print at your convenience. Once enrolled in E-Docs, you agree that any legal notices or disclosures that normally accompany your mailed statement or that we would otherwise deliver to you by mail concerning your Account or Digital Banking Services may be delivered to you electronically. In some cases, paper statements, legal notices and disclosures that you receive electronically must continue to be mailed even if you elect to receive them electronically. We may, at our sole discretion, offer you additional options and preferences for the delivery of various types of communications related to your Accounts or Digital Banking Services.  

You elect and authorize us, at our discretion, to electronically deliver your account statement(s), documents and notices that we are required to provide to you under applicable Federal and State statutes and their implementing regulations, as amended from time to time, including: Truth in Savings Act, Fair Credit Reporting Act, Electronic Funds Transfer Act, Equal Credit Opportunity Act, Privacy of Financial Information and additional Federal law and the laws of the state in which your account is located.  If there is more than one Depositor that is a party to the account, notice to any one Depositor will be effective for all.

The digital statement and document option is only available to you if you enroll your accounts in E-Docs and provide us with a valid email address for E-Docs. Unless otherwise required by law, if you enroll to receive digital statements and documents, we will no longer mail paper statements to you for the selected account(s).  Details for receiving digital statements and documents, and the effect on delivery of paper statements, are provided on the Website and in the Mobile App.

If you currently receive a monthly account statement with check image(s) in paper format, once you enroll in E-Docs, you will continue to receive check images with your statements. You may also view online images of the individual checks posted to your account through the Digital Banking Services, and you may request that a photocopy of a cancelled check be mailed to you for an additional fee.

If you believe your digital statement is lost or that someone has obtained access to your digital statement without your permission, contact any Customer Service Representative.  Notwithstanding any provisions to the contrary contained in this Agreement, we shall be responsible only for performing the E-Docs services as expressly provided for in this Agreement.  We shall be liable only for material losses which are the direct result of our own negligence or intentional misconduct in performing these E-Docs services.  We shall have no liability for failure to perform any E-Docs services or for any disruption or delay in performing said services in the event such failure, disruption or delay is due to circumstances beyond our reasonable control (including, but not limited to, failure or disruption of electronic power, computer equipment, telecommunications systems, your internet service provider, or weather conditions).  We shall have no liability for any consequential, special, punitive damages or indirect loss under any circumstances, except to the extent that we are liable under this Agreement.  You agree to indemnify and hold us and our directors, officers, employees, and agents harmless for all claims, demands, judgments, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with the performance of the statement-Docs service.  You agree that this indemnification shall survive the termination of this Agreement.

If you enroll in E-Docs, your year-end tax documents may be made available through the Website just like your digital documents and statements and to the valid email address provided for the E-Docs service. Customers are not required to complete a separate enrollment process in order to view their tax documents online. This option is available to you regardless of whether or not we also send you mailed (paper) tax documents.

We may terminate delivery of digital statements and documents to you for one or more Accounts or Digital Banking Services, without notice.

18.        System Requirements. Your digital statements, documents, legal notices and disclosures will be presented to you on the Website or through the Mobile App. You must have computer or mobile software that meets the requirements provided on the Website in order to view, print, and/or save your digital statements, documents, disclosures, and legal notices.

19.        Alerts and Mobile Text Messaging.  Your enrollment in the Digital Banking Services (including your enrollment in the optional Zelle® Services described below) includes access to mobile text messaging related services (collectively, "Text Services") and Alerts.  By enrolling in the Digital Banking Services, you are providing Bank with your express consent permitting us to contact you as necessary to provide the Digital Banking Services (including sending text messages and push notifications to your Mobile Device).  Such activities may include, but are not limited to, providing account alerts, confirming account activity, confirming mobile remote capture deposits, undertaking fraud prevention (such as one-time passcode alerts and authentication messages), servicing, or for any other purpose as provided in this Agreement.  You agree that we may send text messages and push notifications through your communication service provider in order to deliver them to you and that your communication services provider is acting as your agent in this capacity.  We may use a telephone number, email address or other delivery location we have in our records for you or other such contact information as you may provide to us for these services so that we may send you certain information about your applicable account.  You agree to immediately notify Bank if you cease using the mobile phone number or change the mobile phone number you have provided to Bank. 

Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys' fees) arising from your provision of a phone number, email address, or other delivery location that is not your own or your violation of applicable federal, state or local law, regulation or ordinance.  Your obligation under this paragraph shall survive termination of the Agreement.  The Alerts and Text Services are provided for your convenience and do not replace your monthly account statement(s), which are the official record of your accounts.  You understand and agree these services may not be encrypted and may include personal or confidential information about you such as your account activity or the status of your account.  You also understand that there may be a disruption in service when you change your communications service provider.  Messages may be delayed or impacted by factor(s) pertaining to your internet service provider(s), phone carriers, or other parties.  We will not be liable for losses or damages arising from any disclosure of account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the messages sent through the Alerts and Text Services.  The Text Services are only available to customers who have an eligible account with us, and you may be automatically enrolled to receive certain Alerts.  While you have to have an eligible account to use the service, once it is activated, if you have other types of accounts with us, you may have access to those other accounts as well.  There is no service fee for the Alerts and Text Services but you are responsible for any and all charges, including, but not limited to, fees associated with text messaging imposed by your communications service provider.  Message and data rates may apply.  Such charges include those from your communications service provider.  Message frequency depends on user preferences.

20.       Bill Pay.  You may direct City Bank to make payments from your City Bank demand deposit and other eligible accounts to third parties (“payees”) whom you have selected to receive payment.  You may make payments through the Service to any business, merchant, or professional that generates a bill or invoice for products or services provided to you on your behalf (“Business Payee”) or to any individuals, family, or friends for non-business purposes (“Individual Payees”).  Payments may be made only to payees with a U.S. payment address.  You may schedule payments to be initiated on the day that you enter the payment information, on a future date, or on the same date each month, subject to the restrictions in this Agreement.  Although you can enter payment information through the Service 24 hours a day, 7 days a week, payments can be “initiated” only on Business Days.  Bills cannot be initiated on holidays or weekends.  If a scheduled bill payment falls on a holiday or weekend, it will be paid on the Friday before the weekend, or the last working day before the holiday.  The date on which a payment is “initiated” is the date on which we act on your payment instructions.

As you are initiating your payment, you will be asked whether you want your payment to be sent by electronic transmission or by check.  In order to send a payment by electronic transmission, your designated payee must be on our list of businesses that are set up to accept electronic transfers.  To determine whether your payee is on the list simply type in the payee name and search.  All payments not made by electronic transmission are made with a check to your designated payee.

Payments are “processed” two times each Business Day: at 7:00 a.m. CST and at 2:00 p.m.  CST.  You have the right to stop or change any scheduled bill payment until the time it is processed.  The following scenarios illustrate City Bank’s bill pay schedule:

Scenario One:  Any payments entered between 7:01 AM CST and 1:59 PM CST on any Business Day can be modified or deleted any time prior to 2:00 PM CST.

Scenario Two:  Any payments entered between 2:01 PM CST and 6:59 AM CST on any Business Day can be modified or deleted any time prior to 7:00 AM CST.

Stop Payments are not guaranteed.  Payees may present payments to their bank before the stop payment has been properly processed.  Payments that are in process CANNOT be canceled or stopped.  If City Bank is successful in processing a stop payment request, please allow up to seven Business Days for the funds to be credited to your account.

Scheduling Payments:  There will be a delay between the time when you initiate a payment and when the payee receives that payment.  Any payments made using the Bill Pay Service require sufficient time for your payee to receive your payment and credit your account properly.  Therefore, you should initiate the payment sufficiently in advance of the due date of your payment.  We recommend that you initiate payments at least seven (7) full Business Days prior to the due date for payments by check and at least four (4) full Business Days for electronic payments.  We will not be responsible for any fees, expenses, late charges, or losses you may incur as a consequence of late payment if you fail to properly initiate the payment sufficiently in advance of the due date of your payment.

If City Bank does not properly complete a bill payment on time or in the correct amount, we will reimburse your for any late fees or penalties you are charged up to a maximum of $25.00 per scheduled payment to a Business Payee that is not received by the scheduled payment date as a result of the failure of a Business Payee to receive a payment made through the Service.  In order to be eligible for such reimbursement, you must meet the following conditions: (a) you must have properly scheduled the payment to be initiated on a date at least seven (7) Business Days prior to the bill’s actual due date if payment is being made by check and at least four (4) Business Days if by electronic payment (b) you must provide us with the correct Payee name, address, and account information, and with the correct payment amount (c) your checking account must contain sufficient funds to complete the payment (d) The late payment fee or penalty, or the method of its calculation, must be published by the payee prior to the bill’s actual due date. (e) You are an individual using Bill Pay for personal, family, or household purposes. (f) The Payee must be a Business Payee.  The Bank has the right to refuse any transaction if the Bank reasonably believes such refusal is necessary for security reasons.

For business accounts signed up for the Bill Pay services, you agree that the password security described in Section 10 of this Agreement sets forth security procedures for electronic fund transfers that are commercially reasonable. For payment requests from Business accounts, which are subject to Article 4A of the Uniform Commercial Code (“UCC 4A”), we are liable only for damages required to be paid under UCC 4A. In no event will we be liable for any exemplary, special, indirect, or consequential loss, damage, costs or expense of any nature, including, without limitation, lost profits, even if we have been informed of the possibility of such damages, except as may be required by law.

At the present time, there are no service charges for City Bank’s Bill Payment Services.  Please note, however, that you are responsible for all fees and charges that might otherwise apply to your City Bank accounts, such as normal account fees and service charges, non-sufficient funds or overdraft fees, etc.

21.       Electronic Fund Transfer (EFT) Provisions for Consumers

The provisions in this section apply only to electronic fund transfers that debit or credit a Consumer’s checking, savings or other deposit account and are subject to the Federal Reserve Board’s Regulation E (an “EFT”). All terms in this section not defined in this Agreement which are defined in Regulation E will have the meaning given in Regulation E.

Except for EFTs to or from brokerage accounts, your liability for an unauthorized EFT or a series of related unauthorized EFTs will be determined as follows:

·       If you notify us within 2 Business Days after learning of the loss or theft of your password, your liability will not exceed the lesser of $50 or the amount of unauthorized EFTs that occur before notice to us.

·       If you fail to notify us within 2 Business Days after learning of the loss or theft of your password, your liability will not exceed the lesser of $500 or the sum of:

•    $50 or the amount of unauthorized EFTs that occur within the 2 Business Days, whichever is less; and
•    the amount of unauthorized EFTs that occur after the close of 2 Business Days and before notice to us, provided we establish that these EFTs would not have occurred had you notified us within that 2-day period.

You must report an unauthorized EFT that appears on a periodic statement within 60 days of our transmittal of the statement to avoid liability for subsequent transfers. If you fail to do so, your liability will not exceed the amount of the unauthorized EFTs that occur after the close of the 60 days and before notice to us, and that we establish would not have occurred had you notified us within the 60-day period. You may, as applicable, also be liable for the amounts described in the immediately preceding paragraphs above.

If your delay in notifying us was due to extenuating circumstances, we may extend the times specified in the immediately preceding paragraphs above to a reasonable period. You must notify us of any unauthorized use or errors in person, by telephone at 1-800-OUR-BANK (1-800-687-2265), or in writing to: City Bank, Attn: Financial Loss Prevention Department, P.O. Box 5060, Lubbock, Texas 79408-5060.  If you notify us over the phone or in person, we may require that you send your complaint or question in writing within 10 Business Days of your notification to us. We will determine whether an error occurred within ten (10) Business Days after we hear from you, and will correct any error promptly. If we need more time to conduct our investigation, however, we will notify you of our need for an extension, which may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 Business Days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 Business Days, we may not credit your account.

For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 Business Days to credit your account for the amount you think is in error. We will tell you the results within 3 Business Days after completing our investigation. If we decide that there was no error, we will send you an explanation. You may ask for copies of the documents that we used in the investigation.

If you authorize a person to regularly debit your Account and the amount varies from the previous amount debited, the person debiting your Account is required to tell you, at least 10 days before each debit, when the debit will be made and how much it will be.

You may place a stop payment order on preauthorized EFTs by calling 1-800-OUR-BANK (1-800-687-2265) at least three (3) Business Days prior to the scheduled transfer date. We require your name and the account number associated with the transfer, and (a) the exact name of the payee, (b) the exact payment amount, and (c) the scheduled transfer date. Failure to provide correct and complete information may make it impossible for us to stop payment of the preauthorized EFT. You agree to indemnify and hold us harmless from and against any loss incurred by us as a result of our paying an EFT if any of the information relied upon in the stop payment order is incorrect or incomplete (or as a result of our not paying a preauthorized EFT for which a valid stop payment order is in effect). If we pay a preauthorized EFT despite a valid stop payment order, we may require you to provide us with an affidavit describing in detail the dispute.

22.       Internal Account Transfers. 

A.   Processing of Transfer Requests. Transfers can be made two ways. One-time transfers may be scheduled immediately or scheduled for a future date. One-time immediate transfers can be made from a linked City Bank checking or savings account to most linked City Bank accounts. Scheduled transfers can be made from a linked City Bank checking or savings, to a linked checking or savings account. Transfers from a deposit account are immediately reflected in the account’s available balance.

B.   Scheduled and Recurring Transfers. Transfers scheduled for a weekend or a non-Business Day will be processed on the prior Business Day. All other scheduled transfers will be processed from the funding account at the beginning of the Business Day requested.

C.   Transfers to Deposit Accounts. Transfers completed through the Internal Account Transfer Service before 7:00 p.m. Central Time on a Business Day are posted to your account the same day. Transfers completed after 7:00 p.m. Central Time on a Business Day or anytime on a Saturday, Sunday, or banking holiday will be posted on the next Business Day. When you instruct City Bank to transfer funds to or from your City Bank accounts through the Digital Banking Services, you authorize City Bank to withdraw the necessary funds from the City Bank account you designate. As with any funds transfer request, whether or not utilizing the Digital Banking Services, you agree that you will instruct City bank to make a withdrawal only when sufficient balance is or will be available in your designated City Bank account at the time of withdrawal. City Bank will not be obligated to act on any withdrawal instruction from you if sufficient funds, including overdraft lines of credit, are not available in the account you designate. 

Please note, transfers to any deposit account on any day that is not a Business Day (i.e., a Saturday, Sunday or bank holiday), will appear with our next Business Day’s date in the deposit account transaction history.

All transfers submitted to a deposit account are immediately reflected in the account’s available balance.

D.  Canceling Transfers. You can cancel a one-time immediate transfer prior to 7:00 p.m. Central Time on the date the transfer was submitted.

Future-dated and recurring transfers can be canceled prior to 7:00 p.m. Central Time on the bank’s Business Day the transfer is scheduled to be made. If the transfer’s status is In Process or Processed, you can no longer cancel it. After you cancel a future-dated transfer, the status changes to Canceled. Canceled transfers remain under Review Transfers.

The easiest and most convenient way to cancel a payment or transfer is through the method described above. You may, however, request to cancel a scheduled or recurring payment or a future-dated transfer by calling us at: 1-800-OUR-BANK.

23.      External Transfers.  Subject to the terms, conditions and limitations set forth in this Agreement, you may be permitted to use the Digital Banking Service(s) to perform “external transfers” from your City Bank account to another account you own at another financial institution (provided such external account is located at a United States financial institution).  External transfers are transfers that allow you to debit or credit your City Bank account from an account at another financial institution that is owned by you.  To access external transfers, you are required to provide the account and routing number of the account at the other financial institution to which you wish to debit or credit, and go through a verification process that uses micro deposits that may take anywhere from 1-3 Business Days to be deposited and debited from the other external account.  You may only use external transfers for accounts at other financial institutions which are owned by the same person who is the customer on the City Bank account to which external transfers are initiated through the Digital Banking Service(s).  By accessing and/or making an external transfer, you represent and warrant to City Bank that you are the owner of both the City Bank account and the external account at the other financial institution.  Once the external account has been verified by you (through the confirmation of the amount of the micro deposit in the other external account), you are then permitted to transfer money to or from the external account.  In the event that you do not own the other external account, despite your representation and warranty to the contrary, you hereby release, indemnify and hold City Bank harmless for all liabilities and losses resulting or arising from or out of external transfers to accounts that you do not own.  Except in the case of unauthorized access to your Digital Banking Service(s) for which you would not otherwise be liable to City Bank under this Agreement, in no event will City Bank bear any liability for any external transfer that is made to an account that is not owned by you (as the same is a violation of this Agreement).  You can only transfer funds to and from domestic (United States) financial institutions.  External transfers may take up to five (5) Business Days to process. 

24.       Remote Deposit Capture Service.

A.     The RDC Service; Payment for RDC Service. Subject to the terms and conditions herein, Customer subscribes to, and Bank agrees to provide, the Remote Deposit Capture Service (the “RDC Service”) to be used by Customer in accordance and in compliance with and the Check Clearing for the 21st Century Act (“Check 21”). The RDC Service enables you to create and submit electronic check images (also known as Image Replacement Documents (“IRD”)) to the Bank, for deposit to your deposit account(s) with the Bank, in lieu of the Original Checks (as defined herein) from which such check images were obtained. The dollar amount of each RDC deposit shall not exceed $5,000.00, with such dollar and daily limits to be set as determined by Bank in its sole discretion.

Bank retains the ability to either approve or deny your use of RDC Services in Bank’s sole and absolute discretion. If Bank approves you to use such RDC Service, then by using such RDC Service, you agree to the provisions set forth in this Agreement, you agree to pay any fees that Bank may charge in conjunction with such RDC Service (as set forth in Bank’s Fee Schedule) and you understand and agree that the meanings of the defined terms set forth in this Agreement and any Documentation (as defined below) made available to you by us for use with the RDC Service.

For any questions or to report any problems with the RDC product please contact us at the information listed in Section 14 of this Agreement.

In the event of any unforeseen issues or failure of this product for deposits, your deposits can be made in person at any Bank branch or by mailing deposits to:

Mail:

City Bank

C/o Mail Teller

PO BOX 5060

Lubbock, TX 79407

Physical:

5219 City Bank Parkway

Lubbock, TX 79407

B.     Definitions. The meanings of the defined terms set forth below are also applicable to this Agreement and any Documentation (defined herein). If any capitalized term defined below is used in Federal Reserve Board’s Regulation CC (Vol. 12 of the U.S. Code of Federal Regulations, part 229) promulgated to comply with Check 21, as it may be amended, substituted for, or recodified from time to time (“Reg. CC”), then such terms generally shall have the meaning assigned to it in Reg. CC. To the extent that any of the defined terms in this Agreement or in the Documentation use a term not defined herein but otherwise defined in Reg. CC, then such definition also incorporates the meaning assigned to the applicable term as set forth in Reg. CC. To the extent that any term used by Bank in providing you the RDC Services is a term that is not used or defined in this Agreement or in the Documentation, you and Bank agree to such terms commonly used with regard to remote deposit capture services shall have the meaning as defined in Reg. CC if such terms are so defined.

All other capitalized terms used that are not otherwise defined in this Agreement or in the Documentation shall have the meaning given to such term in Article 3 or Article 4 of the Uniform Commercial Code as amended from time to time (“UCC”) effective in Texas as adopted in the Texas Business and Commerce Code. In addition, you acknowledge that the Electronic Image of the Original Check submitted to us shall be deemed an “item” within the meaning of Article 4 of the Uniform Commercial Code as adopted in the Texas Business and Commerce Code. 

• “Check 21” means Federal Reserve Board Reg. CC, Subpart D, promulgated to implement the provisions of the Check Clearing for the 21st Century Act.
• “CTA” means the Check Clearing for the 21st Century Act, which became effective October 28, 2004.
• “Documentation” means the online help files or written instructions and materials made available or supplied by Bank that provide the description, methods of operation, and required procedures to engage in RDC activities.
• “Electronic Image” means a digital or electronic representation of an Original Check that is a Sufficient Copy and meets all of the Standards and is submitted by you to Bank for processing and collection as a Substitute Check.
• “Electronic Deposit” means a file that contains information regarding each Electronic Image(s) to be submitted by you to Bank that meets all of the requirements imposed from time to time by Bank as set forth in this Agreement and the Documentation.
• “Magnetic Ink Character Recognition Line” or “MICR Line” means the numbers, which may include the routing number, account number, check number, check amount and other information, that are printed near the bottom of a check in magnetic ink in accordance with the Standards.
• “Original Check” means the first paper check issued to or endorsed in your favor with respect to a particular payment transaction.
• “Processing Software” means the software for any Mobile Device hosted by the Bank that administers the RDC Services and captures Electronic Images for deposit.
• “Reconverting Bank” means: (1) the bank that creates a Substitute Check; or (2) with respect to a Substitute Check that was created by a person that is not a bank, the first bank that transfers, presents, or returns that Substitute Check or, in lieu thereof, the first paper or electronic representation of that Substitute Check.
• “Standards” means the applicable standards set forth in CTA, Check 21 or as promulgated by the American National Standards Institute (“ANSI”) for image quality and transmission protocols, including but not limited to, ANS X9.13, ANS 9.37 and ANS X9.100-140 (or any amendment or substitute for such standards as may be promulgated from time to time), whether such standard pertains to the MICR Line, the image quality of the Original Check, the placement of an image of the Original Check on the Substitute Check, or the manual or electronic transfer of a Sufficient Image Copy or other electronic representation of an Original Check or a Substitute Check, unless the Federal Reserve Board, by rule or order determines that a different standard is to apply.
• “Substitute Check” means a paper reproduction of an Original Check that: (1) contains an image of the front and back of the Original Check; (2) bears a MICR line that, except as provided under the applicable Standard, contains all the information appearing on the MICR line of the Original Check at the time that the Original Check was issued and any additional information that was encoded on the Original Check’s MICR line before an image of the Original Check was captured; (3) conforms in paper stock, dimension, and otherwise with ANS X9.100-140 (unless the Federal Reserve Board by rule or order determines that a different standard applies); and (4) is suitable for automated processing in the same manner as the Original Check.
• “Sufficient Copy” and “Copy” means: (1) A sufficient copy is a copy of an Original Check that accurately represents all of the information on the front and back of the Original Check as of the time the Original Check was Truncated or is otherwise sufficient to determine whether or not a claim is valid. (2) A copy of an Original Check means any paper reproduction of an Original Check, including a paper printout of an electronic image of the Original Check, a photocopy of the Original Check, or a Substitute Check.
• “Sufficient Image Copy” means an Electronic Image of an Original Check or Substitute Check that is capable of printing a Sufficient Copy of such Original Check or Substitute Check.
• “Truncate” means to remove an Original Check from the forward collection or return process and send to a recipient, in lieu of such Original Check, a Substitute Check or, by agreement, information relating to the Original Check (including data taken from the MICR line of the Original Check or an electronic image of the Original Check), whether with or without the subsequent delivery of the Original Check.

C.     Prohibited Transactions; Procedures; Retention of Original Checks. If you have met, in our sole discretion, the conditions we have established for use of RDC Services to make deposits via Electronic Images, we will provide for acceptance for deposit to your Account(s) the Electronic Images of Original Checks for collection as allowed under this Agreement and the Documentation.

However, you agree that you will not use RDC Services to submit any of the following: 

• Checks or items payable to any person or entity other than you (i.e. no third party deposits);
• Checks or items drawn on foreign financial institutions or payable other than in United States money;
• Checks or other items containing apparent alteration to any of the information on the front of the check or item, or which you know or suspect (or should know or suspect) are fraudulent or otherwise not authorized by the owner of the account on which the check or item is drawn;
• Original Checks or other items previously converted to a Substitute Check;
• Checks or items that are Remotely Created Checks (as defined in Reg. CC);
• Checks or items dated more than six (6) months prior to the date of deposit; or
• Checks or items prohibited by Bank’s current Documentation relating to RDC Services, or checks or items which are otherwise not acceptable under the terms of your account(s). 

Such Electronic Images shall be deemed received by us for deposit based upon time of receipt as well as successful receipt of Electronic Images that are complete, usable, and adhere to the Standards. If any Electronic Image is not complete, is not usable, or does not adhere to the Standards, the Electronic Image may not be processed by us, in which event your deposit will be adjusted and notification provided. You understand we will process only your Electronic Images that comply with the Standards and are Sufficient Image Copies, and we will use commercially reasonable efforts to present these Sufficient Image Copies for collection under the Check 21 framework. The daily cut-off time for RDC deposits is 5:00 p.m. Central Standard Time. Such daily cut-off times may be adjusted by Bank in its sole discretion from time to time upon notice to you. The availability of funds for deposits via RDC Services is set forth in the Funds Availability section below. 

All checks submitted through the RDC Service must be properly endorsed by you by signing the back of the check “For mobile deposit only – City Bank.”

Should a Drawee Financial Institution return an item to us unpaid, we will charge your respective account for such returned item and may either (i) return the item to you, or (ii) re-present it to the Drawee Financial Institution before returning it to you. Items may be returned as Image Exchange Items, rather than Substitute Checks. Should a Drawee Financial Institution or other third party make a claim against us or seek re-credit with respect to any Electronic Image, we may provisionally freeze or hold aside a like amount in your account pending investigation and resolution of the claim.

 You agree that you will submit to us for deposit to your account only Electronic Images that are Sufficient Image Copies of Original Checks for deposit via RDC Services. No Electronic Image submitted by you to us represents an Original Check that has already been collected. You further agree that you will retain each Original Check that is Truncated through any RDC Services activity for a reasonable period of time, but in no event fewer than fourteen (14) Business Days from the date of deposit Mobile RDC Terms & Conditions or such longer time as we may request from time to time with respect to any specific Original Check. You understand that in all cases you are solely responsible for safeguarding all items you retain, during the reasonable period of time described above, as required or permitted by RDC Services from destruction, alteration or theft.

Also, you understand that in certain instances we may request from time to time the Original Check to respond to claims made by the Drawer of the check. You should be able to retrieve and produce for us the Original Check in question within seventy-two (72) hours of a written request by us. In the absence of retaining the relevant Original Check, you understand and agree you shall be solely responsible for the cost of any claim brought by the Drawer of the check that for resolution would reasonably require access to relevant Original Check and shall indemnify us in accordance with the terms of the Bank indemnity provisions set forth in this Agreement. You understand and agree that after the reasonable period of time for retention of Original Checks has passed, you will destroy the Original Check in a method that renders it unusable or otherwise unreadable.

You shall have no right to cancel or amend any deposit after its receipt by Bank. However, if such request complies with the Security Procedures, Bank shall use reasonable efforts to act on a request by you for cancellation of a deposit prior to transmitting it to the Federal Reserve, but shall have no liability if such cancellation is not implemented or completed. You shall reimburse Bank for any expenses, losses, or damages Bank may incur in implementing or attempting to implement your request for the reversal of a deposit. 

You understand and acknowledge that we are relying on the truth and veracity of all Electronic Images submitted for deposit via Mobile RDC Services by you to us, and you warrant that such Electronic Images accurately reflect Original Checks that are, or at the time of the creation of the Substitute Checks, were, in your possession. You also understand that issues regarding returned item collection, returned deposit, and other issues regarding deposit of Items not specifically addressed in this Agreement shall be governed by the terms and conditions of the Deposit Agreement.

D.     Rejection of RDC Deposits. Bank may reject any RDC deposit which does not comply with the requirements in this Agreement. Bank shall notify Customer by phone or electronic transmission, including email and/or fax, of such rejection no later than the Business Day such deposit would otherwise have been transmitted by Bank to the Federal Reserve.

Furthermore, your deposit of a check image via RDC Services is subject to the Bank’s verification and final inspection process. The Bank is under no obligation to inspect or verify an Electronic Image to determine accuracy, legibility or quality of such image or MICR line information associated with such image, or for any other purpose. However, the Bank may correct or amend MICR line information associated with an Electronic Image to facilitate processing of the Electronic Image or a Substitute Check created from that Electronic Image.

Notices of rejection shall be effective when given. Bank shall have no liability to you by reason of the rejection of any such RDC deposit or the fact that such notice is not given at an earlier time than that provided for herein.

E.    Funds Availability Regarding RDC Deposits. 

• Your Ability to Withdraw Funds. These provisions apply only to demand deposit checking Accounts where deposits are made via Bank’s RDC Services. You agree that Electronic Images submitted via Bank’s RDC Services from your Mobile Device are not subject to the funds availability requirements of the Federal Reserve Board’s Regulation CC. Our policy is generally to make funds from your RDC Services available to you on the first Business Day after the day we receive your deposit. Funds that are deposited using RDC Services will not be deemed “received” by us until we have received an Electronic Image that meets all of the requirements for deposits (including all requirements to create a Substitute Check) stated in this Agreement and in any Documentation. Once the funds are available, you can withdraw the funds in cash and we will use the funds to pay items and transactions drawn on your account. For determining the availability of your deposits, every day is a Business Day, except Saturdays, Sundays, and federal holidays. If you make deposit via RDC Services by the cut-off time of 5:00 p.m. Central Standard Time on a day that is not a Business Day, we will consider such deposit made on the next Business Day we are open. 
• Longer Delays May Apply. In some cases, we will not make all of the funds that you deposit via RDC available to you on the first Business Day after the day of your deposit. Depending on the type of check that you deposit, funds may not be available until the second Business Day after the day of your deposit. The first $200 of your RDC Services deposits, however, will be available on the first Business Day. If we are not going to make all of the funds from your RDC available on the first Business Day, we will notify you at the time you make your deposit. We will also tell you when the funds will be available. 

In addition, funds you deposit by check may be delayed for a longer period under the following circumstances:

•    We believe a check you deposit will not be paid;
•    You deposit checks totaling more than $3,000.00 on any one day;
•    You redeposit a check that has been returned unpaid;
•    You have overdrawn your Account repeatedly in the last six months; or
•    There is an emergency, such as failure of computer or communications equipment.
  

The availability of Funds you deposit via RDC Services may also be delayed for a variety of additional reasons as determined in Bank’s sole discretion, including, but not limited to: 

•    We believe a check you deposit is a duplicate image;
•   You deposit checks totaling more than any applicable per item limit, daily dollar amount limit, monthly item limit or any other limitations on your RDC Services that Bank may impose; or
•    We exercise our rights to investigate any unusual or suspicious RDC items as determined in Bank’s sole discretion.

 We will generally notify you if we delay your ability to withdraw funds for any of these or other reasons, and we will attempt to tell you when such funds will be available. If you will need the funds from a deposit via RDC, you should contact us to inquire when the funds will be available.

F.     Bank Responsibilities. Bank will provide access to the processing equipment and software for RDC Services through the Bank’s Mobile App. Bank will also provide maintenance and support for the RDC Services to ensure the accurate processing of checks, including but not limited to:

•     Corrections, contingent or alternate work methods, and repairs to any known system bugs or errors.
•     Modifications, enhancements, or updates that City Bank elects to make generally available to its customers.
•     Telephone and email support during City Bank’s normal business hours.
  

Bank will provide the required Login ID and password to Customer in order to engage in RDC Services.

Bank will provide Documentation as well as training materials and support reasonably required for Customer’s use of RDC Services.

Bank will accept for deposit and collection to the Customer’s designated account(s) the Electronic Images of Original Checks that are transmitted to Bank in compliance with this Agreement and all applicable laws, rules and regulations. RDC deposits are deemed to have been received upon confirmation by Bank of successful receipt of the transmission of Electronic Images that are complete, usable, and adhere to the data specifications set forth in this Agreement. If the Electronic Images are not complete, are not usable, or do not adhere to data specifications, the images may not be processed by Bank. In such event, your deposit will be adjusted and notification will be provided to you.

Bank will process your Electronic Images that are Sufficient Image Copies after it has received your transmission of Electronic Images. Bank will use commercially reasonable efforts to present the Sufficient Image Copies for collection under the Check 21 framework. Unless Bank notifies you otherwise, Bank will provide same day ledger credit to your deposit account for all Sufficient Image Copies transmitted by you and received by Bank in accordance with the requirements of this Service and within the timelines established by Bank. However, Bank shall not be responsible for providing ledger credit on the same day a file has begun to be transmitted to Bank by you unless the file containing the Electronic Image is fully received by Bank prior to the cut-off time of 5 p.m. Central Standard Time.

If a Drawee Financial Institution returns an image representing an item to Bank unpaid, Bank may charge your applicable account for such returned item, whether or not the return is timely and properly made, and may either (i) return the item to you, or (ii) re-present it to the Drawee Financial Institution before returning it to you. Items may be returned as Image Exchange Items, rather than Substitute Checks. If a Drawee Financial Institution or other third party makes a claim against Bank or seeks re-credit with respect to any electronic item, Bank may provisionally freeze or hold aside a like amount in your applicable account pending investigation and resolution of the claim. 

Bank will provide information detailing Items processed, return items, deposit adjustments, and other related information in your applicable account statement. Bank will also retain any Electronic Images contained in Bank’s cash letter file for a period of up to five (5) years.

Bank may refuse to process any non-conforming items, including without limitation, any items that do not meet the definition of a “check.”

G.    Customer Responsibilities. Customer will maintain at least one or more checking accounts at Bank eligible for the receipt of RDC deposits.

Customer will inspect and verify the quality of Electronic Images, ensuring that the Electronic Images of the front and back of the Original Checks are legible for all posting and clearing purposes by Bank. Specifically, the Customer is warranting that:

•        The Electronic Image is an accurate representation of all information on the front and back of the Original Check at the time the check was converted to an Electronic Image, and the Electronic Image contains all endorsements from the Original Check.
•        Each Electronic Image (or related electronic data file) contains a record of all MICR line information required for a Substitute Check and satisfies all the requirements of Check 21 and Regulation CC for the creation and/or transferring of a Substitute Check.
•        The Original Check, a duplicate Electronic Image, or any copy of the Original Check or Electronic Image will not be deposited by the Customer with Bank (unless Bank instructs the you to do so) or under any circumstance with any other bank or financial institution.
•        The Original Check, a duplicate Electronic Image, or any copy of the Original Check or Electronic Image will not be presented, transferred, or returned such that Bank or any other person will be asked to make payment based on an Original Check or Electronic Image that Bank or the other person has already paid.

The Customer’s applicable account will be charged for any deposited check that is later returned to Bank owing to an actual or alleged breach of any such warranty above or otherwise made in this Agreement.

Customer will assist in the installation and implementation of any changes and upgrades to the RDC Services as required by Bank to ensure compliance with regulatory changes and developments, or to protect the integrity and security of such Services. 

Customer will use the RDC Services to enter, process, and transmit Original Checks in accordance with procedures and transmission deadlines outlined in this Agreement.

Customer will verify Bank’s receipt of its RDC deposits by reviewing deposits that have been posted to the designated accounts, in addition to cooperating with Bank in any investigation and resolving any unsuccessful or lost transmissions. Customer will comply with all Security Procedures outlined in this Agreement and any Documentation and agrees not to bypass, override or disable any security mechanisms in the processing software or processing equipment.

Customer will retain each Original Check for the time frame specified in this Agreement after an Electronic Image of the check has been created and will promptly provide any related Original Check (or Sufficient Copy of the front & back of the Original Check) to Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any check.

Customer understands that in all cases it is solely responsible for safeguarding all such images from destruction, alteration or theft in accordance with the provisions of this Agreement. 

Customer will use commercially reasonable methods to destroy the Original Checks after the required retention time has expired to render them unusable or otherwise unreadable.

Customer will cooperate with Bank in providing information and access to Customer records in the event of lost, mistaken, incomplete, or unusable Electronic Images, or in the event of claims of fraud, alteration, counterfeit or otherwise. 

Customer may not perform RDC Services for any third party, and any attempt to do so shall automatically terminate this Agreement, except for any provisions of this Agreement that are expressly to survive such termination.

H.     Representations and Warranties. By depositing Electronic Images with the Bank via the RDC Service, you give us the same warranties and indemnities that we, as a reconverting bank, would give under applicable law or regulation. You understand and acknowledge that all of the warranties deemed given by a depositor of a check to a bank under the Uniform Commercial Code (“UCC”), as applicable from time to time in the State of Texas, shall also apply to any Electronic Image of an Original Check the same as if such Electronic Image or Substitute Check were a paper check within the meaning of the UCC as adopted by the State of Texas (“Texas UCC”). Accordingly, except to the extent that any warranties deemed given under the Texas UCC are expressly superseded by the Check 21 Act or the Check 21 regulations, you understand that you are deemed to give us all the same warranties you would have given under the Texas UCC for the deposit of an Original Check by transferring to us: (a) any Substitute Check; (b) an IRD or other item purporting to be a Substitute Check; or (c) any Electronic Image that purports to contain a Sufficient Copy of an Original Check or a Substitute Check.

Such warranties also include the following two (2) specific warranties regarding transfer and presentment:

•        You warrant that the Electronic Image that we convert to a Substitute Check meets the requirements described in § 229.51(a)(1) – (2) of the Check 21 Regulation (found at 12 CFR §229.51(a)(1) – (2)) for legal equivalence; and
•        And your warranty given above is deemed given to us and any other person, company or bank to which we transfer, present or return the Substitute Check or a paper or electronic representation of the Substitute Check.
  

The above warranties are deemed given to Bank and any person, company or bank to which Bank transfers, presents or returns any of the Images included in such electronic file as a Sufficient Image Copy or that purports to be a Sufficient Image Copy created by Bank or any subsequent bank receiving a copy of such image. Customer represents that it shall permit no third parties to use the RDC Services to deposit Original Checks to Customer’s Account.

With respect to each and every RDC deposit initiated by you, you represent and warrant to, Bank and agrees, that you shall perform your obligations under this Agreement in accordance with all applicable laws and regulations, including the sanctions laws administered by OFAC and the Bank Secrecy Act.

I.  Liability; Limitations on Liability; Indemnity. In addition to other limitations of liability contained herein, in the performance of this Agreement, Bank shall be entitled to rely solely on the information, representations, and warranties provided by Customer pursuant to this Agreement and the use of the RDC Services, and shall not be responsible for the accuracy or completeness thereof. Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only for its gross negligence or willful misconduct in performing those services.

Bank shall not be responsible for Customer’s acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal, or authorization of any deposit received from Customer) or those of any other person, including, without limitation, any Federal Reserve Bank, or transmission or communications facility, and no such person shall be deemed Bank’s agent.

 Bank makes no warranty of any kind, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, the existence of any latent or patent defects, viruses, or the accuracy or freedom from error, of the data or the program used by or furnished to the Bank or to you by licenser or others, in connection with any software or Service(s) provided to you under this Agreement. Without limiting the generality of the foregoing, the Bank makes no representation or warranty, expressed or implied, against any infringement of any proprietary rights of any other party. You assume the entire risk as to the quality and performance of the software provided, the suitability of the RDC Services, and with respect to any documentation. This paragraph shall survive the termination of this Agreement by either you or the Bank, and also limits the liability of any agent, employee, or affiliate of the Bank. We do not and cannot warrant that the software provided will operate without errors, or that any or all RDC Services will be available and operational at all times.

You agree to indemnify Bank against any loss, liability, or expense (including attorney’s fees and expenses) resulting from or arising out of any claim of any person that the Bank is responsible for any act or omission of Customer or any other person described in this Section.

Bank shall be liable only for Customer’s actual damages; in no event shall Bank be liable for any consequential, special, incidental, punitive, or indirect loss or damage which Customer may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by the Bank and regardless of the legal or equitable theory of liability which Customer may assert, including, without limitation, loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omissions pursuant to this Agreement.

Liability shall not exceed the sum of the amount of any loss suffered by the Customer as a result of a breach of warranties under Regulation CC (12 CFR Part 229) up to the amount of any Substitute Check, interest and expenses (including cost and reasonable attorney fees and other expenses of presentation) related to the Substitute Check reduced by any amount that the Customer receives and retains as a re-credit. Furthermore, such liability shall be further reduced by the amount of any damages incurred as a result of the negligence or bad faith of the Customer. 

Without limiting the generality of the foregoing provisions, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission of communication facilities, equipment failure, war, adverse weather, terrorism, emergency conditions, or other circumstances beyond Bank’s control.

In addition, Bank shall be excused from failing to transmit or delay in transmitting a deposit if such transmittal would result in Bank’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank’s reasonable judgment otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. In such event, Customer shall be responsible for having a contingency plan in place including temporarily depositing original, paper items at any branch facility of the Bank.

Subject to the foregoing limitations, Bank’s liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of Dallas for the period involved. At Bank’s option, payment of such interest may be made by crediting the account resulting from or arising out of any claim of any person that Bank is responsible for any act or omission of Customer or any other person described in Section.

J.   Termination. In addition to other termination rights contained herein, Bank reserves the right to terminate the RDC Service immediately upon providing written notice to you of such termination. We may also, in our sole discretion, terminate your RDC Service effective immediately if: (i) there is an occurrence of a material change in your account activity or other risk analysis criteria as determined by us in our sole and absolute discretion; (ii) we at any time determine that you do not meet our risk or other qualification requirements; (iii) we discover any willful misconduct (including but not limited to types of fraudulent activity) on your part or any other party with respect to Electronic Images submitted for deposit by you; (iv) you are in default of any terms of this Agreement where such default gives us the right to terminate, immediately or otherwise, or close your account; (v) you have not used RDC Services for a period of time deemed to constitute an inactive service by us (in our sole discretion); or (vi) you are in default of any terms of the Agreement or any other agreement with us. In any of these events, you agree that our sole obligation shall be to provide notice of our termination of RDC Services to you, and that such notification will be reasonable if it is mailed to your statement mailing address immediately upon termination. 

Either you or Bank may terminate RDC Services, with or without cause, upon thirty (30) calendar days’ written notice to the other of its intent to do so, sent to you at your statement address and sent to us at the address provided herein. In the event of termination of Mobile RDC Services, your rights and responsibilities as well as ours, shall continue through any applicable settlement period, including your responsibility to pay us for Mobile RDC Services and with respect to transactions processed prior to the effective date of termination. If Mobile RDC Services are terminated by us, we may accelerate all amounts due and to become due, and you agree to promptly make full payment to us of all amounts due and amounts incurred by you through your use of our RDC Services.

 Any termination of the RDC Services shall not affect any of the Bank’s rights and Customer’s obligations with respect to deposits initiated by you prior to such termination, or the payment obligations of Customer with respect to services performed by Bank prior to termination, or any other obligations that survive termination of this Agreement.

25.       Optional Zelle® Service. If you elect to use the optional Zelle Services that is offered by the Bank as part of the Digital Banking Services, you understand that your use of the Zelle Service (as that term is defined below) is subject to the separate “Zelle Terms and Conditions Agreement” that Bank shall provide to you when you register to use the Zelle Service.  Proceeding with using the Zelle Service constitutes your agreement to the Zelle Terms and Conditions Agreement.  Bank has partnered with the Zelle Network (“Zelle”) to enable a convenient way to transfer money between you and others who are enrolled directly with Zelle or enrolled with another financial institution that partners with Zelle.

26.  Card Swap Payment Service. 

 A.     Card Swap Payment Service Description. We provide a bill payment service (the “Card Swap Payment Service”) that allows you to make recurring bill payments, including subscription services bill payments, to certain third-party service providers (“Payees”) by accessing your accounts on such Payees’ websites and online services (“Payee Sites”) via the Card Swap Payment Service. The Card Swap Payment Service allows you to make bill payments using funds from a single Funding Account, as that term is defined in Section 27(C) below, and also allows you to switch Funding Accounts on Payee Sites. 

B.     Payee Account Information. In order to use the Card Swap Payment Service, you will need to link your accounts on Payee Sites to the Card Swap Payment Service by providing us and our licensors with the information necessary to access such Payee accounts (such as account usernames and passwords) (“Payee Account Information”). You hereby authorize us and our licensors to use and store your Payee Account Information and to access your accounts on Payee Sites to provide the Card Swap Payment Service to you and to configure the Card Swap Payment Service so that it is compatible with the applicable Payee Sites. You represent and warrant to us that you are the legal owner of any accounts on Payee Sites that you access via the Card Swap Payment Service and that you have the authority to allow City Bank to access your accounts using your Payee Account Information on your behalf.

C.  Funding Accounts. If you use the Card Swap Payment Service, bills will be paid using funds from the City Bank accounts that are permitted, which are City Bank issued credit cards, City Bank issued debit cards and City Bank checking accounts (each, a “Funding Account”). By initiating a bill payment through the Card Swap Payment Service, you authorize us to charge the Funding Account(s) that you designate to pay such bill. You represent and warrant that you have the right to authorize us to charge each Funding Account for payments you initiate using the Card Swap Payment Service. You agree to maintain a balance or available credit limit in each specified Funding Account that is sufficient to fund all payments you initiate using the Card Swap Payment Service. If for any reason the Card Swap Payment Service is unable to access funds from a specified Funding Account to complete a bill payment transaction you initiate (for example, non-sufficient funds), the transaction may not be completed. We are not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) that result from your failure to maintain a balance or available credit in a Funding Account that is sufficient to fund the payments you initiate using the Card Swap Payment Service.  If a bill payment transaction is not completed due to non-sufficient funds in your Funding Account, you are responsible for re-initiating and completing such incomplete or rejected payment.

D.  Limitations. You acknowledge and agree that: (a) some Payees may not allow us to access your account on Payee Sites on your behalf; (b) Payees may make changes to Payee Sites and/or other services, with or without notice to us, that may affect overall performance of the Card Swap Payment Service and prevent or delay payment to such Payees; (c) certain Payees may not accept payment from all types of funding sources (for example, not all Payee Sites may accept credit cards); and (d) we may, in our sole discretion, impose limits on the number and amount of payments, in aggregate, that you can send using the Card Swap Payment Service.  

 When you send a payment via the Card Swap Payment Service, the Payee is not required to accept it. You agree that you will not hold us liable for any damages resulting from a Payee not receiving payment made through the Card Swap Payment Service for any reason.

E.  Payment Delays and Errors. It is your responsibility to review all payment transactions you initiate using the Card Swap Payment Service against account statements you receive from us. You acknowledge that some transactions may take longer to be credited to your account on a Payee Site due to circumstances beyond our control, such as delays in handling and posting payments, errors with Payee Account Information, or errors with funding instructions. You are solely responsible for ensuring that payments made using the Card Swap Payment Service arrive by the Payee’s due date.

Subject to the provisions of Section 21 (Electronic Fund Transfer (EFT) Provisions for Consumers) of the Agreement that applies to debit card payments, you are solely liable for errors you make in using the Card Swap Payment Service. Without limiting the foregoing, we will not be responsible or liable: (a) if a Funding Account you specify as a payment source is closed or does not contain sufficient funds to complete a transaction; (b) if a payment is rejected, returned, mishandled, or delayed by the Payee or us for any reason; or (c) due to (i) any unavailability of the Card Swap Payment Service for any reason, (ii) fraud or attacks on the Card Swap Payment Service, or (iii) circumstances beyond our control (for example, fire, flood, third party networks, or any failure by your computer, software, or internet connection).

F.   Unauthorized Transactions. You must notify us immediately if you suspect or believe that a transaction has occurred through the Card Swap Payment Service that you did not authorize or that an incorrect amount was authorized. You must notify us of any unauthorized use or errors in person, by telephone at 1-800-OUR-BANK (1-800-687-2265), or in writing to: City Bank, Attn: Financial Loss Prevention Department, P.O. Box 5060, Lubbock, Texas 79408-5060. In an effort to manage our risk, we and our service providers may, but are not required to, monitor your transactions and processing activity for high-risk practices or for fraudulent transactions.

G.   Changes to Terms of Service. City Bank may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective when they are posted and apply to all access to and use of the Card Swap Payment Service thereafter. Your continued use of the Card Swap Payment Service following the posting of revised Terms of Service means that you accept and agree to the changes.

H.  Scope of and Restrictions on Use. Subject to these Terms of Service, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Card Swap Payment Service for your personal, non-commercial use. Except as otherwise provided in these Terms of Service, all software provided in conjunction with the Card Swap Payment Service may not be copied, downloaded, or stored in a retrieval system for any other purpose, nor may it be redistributed, reused, or modified for any purpose.

Furthermore, you agree not to:

•              Collect information from the Card Swap Payment Service using an automated software tool or manually on a mass basis;
•            Use automated means to access the Card Swap Payment Service, or gain unauthorized access to the Card Swap Payment Service or to any account or computer system connected to the Card Swap Payment Service;
•         Obtain, or attempt to obtain, access to areas of the Service or our systems that are not intended for access by you;
•           “Flood” the Card Swap Payment Service with requests or otherwise overburden, disrupt, or harm the Card Swap Payment Service or our systems;
•            Restrict or inhibit other users from accessing or using the Card Swap Payment Service;
•             Modify or delete any copyright, trademark, or other proprietary rights notices that appear in the any of the software provided in conjunction with the Card Swap Payment Service; or
•          Access or use the Card Swap Payment Service for any unlawful purpose or otherwise beyond the scope of the rights granted herein.

If you download the any of the software provided in conjunction with the Card Swap Payment Service, you further agree not to:

•           Copy such software;
•           Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of such software;
•               Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of such software or any part thereof;
•              Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available such software or any features or functionality of the such software to any third party for any reason, including by making the such software available on a network where it is capable of being accessed by more than one device at any time; or
•               Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting such software.
  

J.  Account Registration and Security. Access to and use of the Card Swap Payment Service may require you to register for a separate account with our licensors. You agree to provide true, accurate, current, and complete information about yourself as prompted by the applicable third party licensor registration or log-in form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your City Bank account or your separate account with our licensor, regardless of who conducts those activities. You are responsible for maintaining the confidentiality of all your account information, including your username and password in accordance with the Agreement and these Terms of Service. You agree to immediately notify us of any unauthorized use of any of your accounts (whether with City Bank or with our licensors), or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.

K.  Electronic Communications. The communications between you and us via the Card Swap Payment Service use electronic means. For contractual purposes, you consent to receive communications from us and our licensors in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically with regard to the Card Swap Payment Service satisfy any legal requirement that such communications be in writing.

L.  Privacy Policy. You acknowledge and agree that all information collected by Us is subject to our Privacy Policy, which is available at https://www.city.bank/privacy-policy. By using the Card Swap Payment Service, you consent to all actions We take with respect to your information in compliance with our Privacy Policy.

M.  Software Updates. We or our licensors may, from time to time in our and their sole discretion, develop and provide Card Swap Payment Service software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Card Swap Payment Service. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Card Swap Payment Service. 

N. Change and Suspension.

1.     Changes to the Card Swap Payment Service. We reserve the right to make changes to, suspend, or discontinue (temporarily or permanently) the Card Swap Payment Service or any portion thereof at any time. You agree that we will not be liable to you or to any third party for any such change, suspension, or discontinuance. 

2.     Suspension/Termination of Access. We have the right to deny access to, and to suspend or terminate your access to, the Card Swap Payment Service or to any features or portions thereof, at any time and for any reason, including if you violate these Terms of Service or if we believe there is suspicious or unusual activity related to your account. Neither termination nor suspension shall affect your liability or obligations under these Terms of Service. In the event that we suspend or terminate your access to the Card Swap Payment Service, you will continue to be bound by the Terms of Service that were in effect as of the date of your suspension or termination. 

In the event we terminate your account, any payments to Payees that we have processed before the termination date may be completed, however you should verify that such payments have been completed directly with your intended Payee. We are not responsible for any payments not completed by us as a result of termination.

O. Disclaimer; Limitation of Liability. In addition to the disclaimer and limitation of liability provisions in Sections 29 (Limit of City Bank and Other Providers’ Responsibility) and 30 (Warranties Disclaimer) of the Agreement, you agree to the following:

        1.       Disclaimer of Warranties. THE CARD SWAP PAYMENT SERVICE AND THE CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER WE NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE CARD SWAP PAYMENT SERVICE OR ANY CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY PERSON ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE CARD SWAP PAYMENT SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE CARD SWAP PAYMENT SERVICE, CONTENT, OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE CARD SWAP PAYMENT SERVICE OR THE CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

        2.     Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE CARD SWAP PAYMENT SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, WE ARE FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE, IN NO EVENT WILL OURAGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF $100.00. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF SERVICE FAIL OF THEIR ESSENTIAL PURPOSE.

        3.     Exclusions. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consequential damages, so some of the exclusions and/or limitations in this Section 10 may not apply to you. In such states, our liability is limited to the maximum extent permitted by law.

P. Indemnification. In addition to indemnification provisions in Section 33 (Indemnification) of the Agreement, you agree to indemnify, defend, and hold us and our officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from: (a) your use of the Card Swap Payment Service; (b) any violation of these Terms of Service or applicable law; and/or (c) any claims by another owner of a Funding Account you use in connection with the Card Swap Payment Service or any joint account holder of an account on a Payee Site. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event, you agree to cooperate with us in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Card Swap Payment Service and/or these Terms of Service.

Q.    Third Party Materials. The Card Swap Payment Service may display, include, or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services (collectively, “Third Party Materials”). You acknowledge and agree that we are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.

R.    Third Party Platforms. We may provide the Card Swap Payment Service to you through the Payees’ Sites and/or other third-party websites, operating systems, platforms, and portals (collectively, “Third-Party Platforms”). Additional terms and conditions will apply to you with respect to your use of Third-Party Platforms, which are not under our control. We do not assume any responsibility or liability for your use of such Third-Party Platforms. 

S.    U.S. Export Controls. The software provided to you in conjunction with the Card Swap Payment Service may be subject to United States export laws, including the including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release such software to, or make such software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule or regulation. You shall comply with all applicable laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making such software available outside the United States.

T.    Miscellaneous.

        1.     Geographic Restrictions. We are based in the United States. We make no claims that the Card Swap Payment Service is accessible or appropriate outside of the United States. Access to and use of the Card Swap Payment Service may not be legal by certain persons or in certain countries. If you access the Card Swap Payment Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. 

        2.     Governing Law; Jurisdiction and Venue. These Terms and Conditions, the Agreement, and any issue relating to the Card Swap Payment Service, shall be governed by and construed in accordance with the laws of the State of Texas. Any legal proceeding arising out of or relating to these Terms and Conditions or the Agreement must be brought in the courts of the State of Texas, County of Lubbock, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Texas, Lubbock Division, and by entering these Terms and Conditions or using or accessing any of the Card Swap Payment Service provided for herein, you hereby irrevocably submit and consent to the exclusive jurisdiction of such courts in any such proceeding, and waive any challenge to the personal jurisdiction of such courts. You hereby agree and consent to the exclusive venue for any legal action or proceeding shall be in Lubbock County, Texas. You further agree that any dispute between or among you and us, regardless of when it arose, will, upon demand by either you or us, be resolved by a court and not a jury and the parties hereby waive the right to a jury trial. 

       3.     Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE CARD SWAP PAYMENT SERVICE OR CONTENT MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

       4.     Waiver and Severability. Our failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms of Service will continue in full force and effect.

       5.     Entire Agreement. These Terms of Service, including our Privacy Policy, the Agreement, and additional documents incorporated herein by reference, constitute the sole and entire agreement between you and us with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

27.       Reporting Unauthorized Transactions; Liability for Authorized Digital Banking Transactions. To report unauthorized transactions on any of your accounts, please contact us using the information listed in Section 14 of this Agreement. Requirements for reporting unauthorized transactions are set forth in your Deposit Agreement.

Tell us at once if you believe your access code, mobile ID or password has been compromised or if someone has transferred or may transfer money from your account without your permission. The best way to minimize your loss is to call us immediately. The unauthorized use of your access code, mobile ID or password could cause you to lose all of your money in your accounts, plus any amount available under your overdraft protection plan.

When you give someone your access code, mobile ID and/or password, you are authorizing that person to use your Digital Banking Services, and you are responsible for all transactions that person performs while using your Digital Banking Services. All transactions that person performs, even those transactions you did not intend or want performed, are authorized transactions. If you notify us that the person is no longer authorized, then only transactions that person performs after the time you notify us are considered unauthorized. Additional information regarding unauthorized transfers can be found in your Deposit Agreement.

Transactions initiated by you, or by someone acting with you or at your instruction, with fraudulent intent are also deemed authorized transactions. For your protection, sign off after every Digital Banking Service session.

28.       Limit of City Bank and Other Providers’ Responsibility.  City Bank agrees to make reasonable efforts to ensure full performance of the Digital Banking Services. City Bank will be responsible for acting only on those instructions sent through the Digital Banking Services which are actually received and cannot assume responsibility for malfunctions in communications facilities not under its control that may affect the accuracy or timeliness of messages you send. City Bank is not responsible for any losses or delays in transmission of instructions arising out of the use of any internet service provider or caused by any browser software. Any information you receive from City Bank can only be provided on a best efforts basis for your convenience and is not guaranteed. City Bank is not liable for any deficiencies in the accuracy, completeness, availability or timeliness of such information or for any investment or other decision made using this information. City Bank is not responsible for any computer virus or related problems which may be attributable to the Digital Banking Services or to any services provided by any internet service provider. In the absence of negligence on the part of City Bank, none of City Bank, any of its affiliates or any of their respective officers, directors, employees or agents, is responsible for any direct, indirect, special, incidental or consequential damages arising in any way out of the use of the Digital Banking Services. Because some states do not allow the exclusion of limitation of liability for consequential or incidental damages, in such states the liability of the foregoing entities and individuals is limited to the extent permitted by law.  With respect to Bill Pay, City Bank has no duty to monitor the payments that are made through the Service.  If you are a business and an authorized representative of yours uses your Bill Pay Account to pay bills which are not yours, you assume the entire risk of loss and indemnify and hold us, our directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments and expenses arising out of or in any way connected with such use.

With respect to business Accounts and use of the Digital Banking Services, if we fail or delay in making a transfer pursuant to your instructions, or if we make a transfer in an erroneous amount which is less than the amount per your instructions, unless otherwise required by law, our liability shall be limited to interest on the amount which we failed to timely transfer, calculated from the date on which the transfer was to be made until the date it was actually made or you canceled the instructions.  We may pay such interest either to you or the intended recipient of the transfer, but in no event will we be liable to both parties, and our payment to either party will fully discharge any obligation to the other.  If we make a transfer in an erroneous amount which exceeds the amount per your instructions, or if we permit an unauthorized transfer after we have had a reasonable time to act on a notice from you of possible unauthorized use as described above, unless otherwise required by law our liability will be limited to a refund of the amount erroneously paid or transferred, plus interest thereon from the date of the payment or transfer to the date of the refund, but in no event to exceed 60 days’ interest. If we become liable to you for interest compensation under this Agreement or applicable law, such interest shall be calculated based on the average federal funds rate at the Federal Reserve Bank in the district where the Bank is headquartered for each day interest is due, computed on the basis of a 360-day year. UNLESS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL  CITY BANK, ITS AFFILIATES, AND OUR AND THEIR RESPECTIVE THIRD-PARTY PROVIDERS, PARTNERS, LICENSORS, EMPLOYEES, DISTRIBUTORS AND AGENTS BE LIABLE TO YOU FOR INCIDENTAL, INDIRECT, DIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR ATTORNEYS’ FEES, EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, DAMAGES FOR TELECOMMUNICATION FAILURES, LOSS, CORRUPTION, SECURITY OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF PRIVACY, OR PECUNIARY LOSS ARISING OUT OF YOUR USE OR YOUR INABILITY TO USE THE SERVICES; ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN YOUR USE OF THE SERVICES; ANY ACT OR OMISSION BY US IN ADMINISTERING THE SERVICES; OR THE PURCHASE OR USE OF ANY GOODS OR SERVICES OF MERCHANTS OR SUPPLIERS THROUGH THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE

THE LIMITATIONS OF DAMAGES SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN CITY BANK AND YOU.  CITY BANK WOULD NOT BE ABLE TO PROVIDE THE DIGITAL ONLINE AND BANKING SERVICES WITHOUT SUCH LIMITATIONS.  SOME STATES DO NOT ALLOW LIMITATIONS ON INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

29.       Warranties Disclaimer

CITY BANK MAKES NO EXPRESS OR IMPLIED WARRANTIES CONCERNING THE DIGITAL BANKING SERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS UNLESS, AND THEN ONLY TO THE EXTENT, DISCLAIMING SUCH WARRANTIES IS PROHIBITED BY LAW.

30.       No Other Use.  You may use the Digital Banking Services only for your personal use or for the use of your business, and may not reproduce, sell or distribute all or any portion of the information provided to you by the Digital Banking Services.

31.       Third-Party Software and Third-Party Content.  From time to time, we may offer third-party software tools and products that you may elect to install on your computer (collectively “Third-Party Software”). You are responsible for obtaining a valid and separate license agreement with the provider of the Third-Party Software. From time to time, we may also offer information, commentary, and tools supplied by companies that are not affiliated with us (“Third Party Content”). All of the Third-Party Content on the Website or Mobile App is labeled as such, and may be available either in a frame, via a hyperlink, or simply posted to the Website or Mobile App. We do not own any interest in Third-Party Content. We do not edit, review, or endorse any Third-Party Content.  You agree and understand that:

• you assume all risk that any Third-Party Software you download and install, or any information you enter into the Third-Party Software, may be accessed by unauthorized third parties; and
• if you use the Third-Party Software to transmit information, you and the Third-Party-Software provider are responsible for the security and confidentiality of that information.

You agree that any Third-Party Software that you download is done at your own risk and you alone are responsible for any damage that might occur to the computer or other electronic device to which you download any Third-Party Software, or any loss or corruption of data that might occur as a result of the downloading or its installation in a computer or other electronic device.

You also agree that you are solely responsible for acquiring and maintaining a computer or other electronic device that has capabilities of handling and accessing the Third-Party Software, including any necessary equipment such as a modem, and that you are responsible for all costs associated with accessing the Third-Party Software.  You also agree that any Third-Party Software you download is provided to you “as is” and “as available” and any Third-Party Content you review or utilize is provided to you “as is.”  You agree that we make no warranties and have no liability as to:

• the accuracy, completeness, availability or timeliness of the information, text, graphics, or other items provided, stored, evaluated or processed through the Third-Party Software or Third-Party Content;
• the errors or omissions in the delivery or transmission of the Third-Party Software or Third-Party Content from us to you; and
• the Third-Party Software’s or Third-Party Content’s fitness for a particular purpose and non-infringement of any third-party rights.

You also agree that we will not be liable to you for:

• your inability to use the Third-Party Software;
• the accuracy, timeliness, loss or corruption, or misdelivery, of any Account information or any other information processed by the Third-Party Software; or
• unauthorized access to your Accounts or to your account information and any misappropriation, or alteration, of your account information or data as a result of your installation or use of the Third-Party Software.

32.       Indemnification.  You agree, at your expense, to defend, indemnify, hold harmless, protect and fully compensate City Bank, its affiliates, and their respective officers, directors, employees, consultants, agents, distributors, partners, licensors and third-party providers from any and all claims, liability, damages, losses, expenses and costs (including attorneys’ fees) caused by or arising from (a) a third-party claim, action or allegation of infringement based on your use of the Digital Banking Services, or information, data, files or other content you submitted or uploaded; (b) any fraud, manipulation, or other violation of Law by you; (c) a breach of these Terms by you; (d) your acts or omissions; or (e) any third-party claim, action or allegation brought against City Bank arising out of or relating to a dispute between its users over the terms and conditions of a contract or related to the purchase and sale of any Digital Banking Services.  For the avoidance of doubt, if you are a business entity, your obligations hereunder shall extend to indemnification based on the acts and omissions of your employees, consultants and agents.

33.       Cost of the Digital Banking Services.  Except as otherwise provided in this Agreement or your applicable Deposit Agreement and schedule of fees, there is no monthly service charge for accessing your Accounts with the Digital Banking Services. In addition to the fees already described in this Agreement, you should note, however, that depending on how you access the Digital Banking Services, you may incur charges for:

• Normal account fees and service charges.
• Any internet service provider fees.
• Payments or transfers made through Digital Banking Services from a savings or money market account may result in an excess transaction fee. See your savings and money market disclosures for details.
• Additionally, fees may be assessed for added self-service features available through Digital Banking customer/member service, such as stop payment requests, check copy orders and account statement copy orders. For additional information, please see the applicable Deposit Agreement.
• An overdraft, insufficient funds, returned item, or similar fee may also apply if you schedule payments or transfers and your available balance is not sufficient to process the transaction on the date scheduled or, in the case of a personal check, on the date when the check is presented to us for payment.

34.       Changes in Terms.  City Bank may change the Digital Banking Services and the terms, including fees, set forth in this Agreement or in City Bank Bill Payment Agreement and Fee Schedule at any time. You will be notified of any such change as required by applicable law, either by mail or by an electronic message. You understand that, by using the Digital Banking Services after a change becomes effective and after you are notified of the change, you are agreeing to the change.

35.       Cancellation.    This Agreement will remain in effect until it is terminated by you or City Bank.  You may cancel this Agreement at any time by notifying City Bank by mail to P.O. Box 5060, Attention: Digital Banking, Lubbock, Texas, 79408-5060; through the Website or Mobile App; through electronic mail to: [email protected]; or by telephone at 1-800-OUR-BANK (1-800-687-2265).  City Bank may cancel this Agreement and terminate your use of the Digital Banking Services for any reason, at any time. City Bank will use commercially reasonable measures to notify you in advance of any such termination, but City Bank is not obligated to do so.

36.       Severability.  In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions shall remain valid and enforceable.

37.       Governing Law. The terms and conditions of this Agreement, and any issue relating to an account or service with City Bank which you access through the Digital Banking Services, shall be governed by and construed in accordance with the laws of the State of Texas. 

38.       Jurisdiction and Venue, Waiver of Jury Trial Rights.  Any legal proceeding arising out of or relating to this Agreement must be brought in the courts of the State of Texas, County of Lubbock, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Texas, Lubbock Division, and by entering this Agreement or using or accessing any of the Digital Online and Banking Services provided for herein, you hereby irrevocably submit and consent to the exclusive jurisdiction of such courts in any such proceeding, and waive any challenge to the personal jurisdiction of such courts. You hereby agreed and consent to the exclusive venue for any legal action or proceeding shall be in Lubbock County, Texas. You further agree that any dispute between or among you and us, regardless of when it arose, will, upon demand by either you or us, be resolved by a court and not a jury and the parties hereby waive the right to a jury trial.

39.       Assignment.  City Bank may assign its rights and delegate its duties under this Agreement to a company affiliated with City Bank or to any other party. You may not assign any of your rights or duties under this Agreement at any time.

40.       Headings. Headings are used for reference purposes only and shall not be deemed a part of this Agreement.

41.       Entire Agreement.  This Agreement is the entire agreement between you and City Bank regarding your use of the Digital Banking Services, and it supersedes any prior discussions and agreements between you and City Bank regarding the Digital Banking Services, and supersedes any marketing or other similar material pertaining to the Digital Banking Services delivered to you in writing, verbally or obtained at any City Bank site or the site of any internet service provider.

42.       Interruptions in Services.  City Bank may on a regular basis perform maintenance on City Bank equipment or systems which may result in interruption of the Digital Banking Services. City Bank will not incur any liability to you as a result of any such interruptions.

43.       Website Terms and Conditions.  

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THEY GOVERN YOUR ACCESS AND USE OF THIS WEBSITE.  BY ACCESSING OR USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ACCEPT THEM IN FULL, AS THEY MAY BE MODIFIED BY CITY BANK FROM TIME TO TIME:

A.    No Warranty:  THE INFORMATION AND MATERIALS CONTAINED IN THIS SITE, INCLUDING TEXT, GRAPHICS, LINKS OR OTHER ITEMS ARE PROVIDED “AS IS,” “AS AVAILABLE”. CITY BANK DOES NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION AND MATERIALS AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THIS INFORMATION AND MATERIALS. NO WARRANTY OF ANY KIND, IMPLIED, EXPRESSED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM COMPUTER VIRUS IS GIVEN IN CONJUNCTION WITH THE INFORMATION AND MATERIALS. 

B.     Limitation of Liability:  IN NO EVENT WILL CITY BANK BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES ARISING IN CONNECTION WITH THIS SITE OR USE THEREOF OR INABILITY TO USE BY ANY PARTY, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF CITY BANK, OR REPRESENTATIVES OF CITY BANK, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. HYPERLINKS TO OTHER INTERNET RESOURCES ARE AT YOUR OWN RISK; THE CONTENT, ACCURACY, OPINIONS EXPRESSED, AND OTHER LINKS PROVIDED BY THESE RESOURCES ARE NOT INVESTIGATED, VERIFIED, MONITORED, OR ENDORSED BY CITY BANK.