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CAPITAL BANK & TRUST COMPANY
ONLINE BANKING TERMS & CONDITIONS
These Terms and Conditions apply to the Online Banking Services we
provide. They govern activity in your accounts as well as the delivery
of two categories of services: Collection and Disbursement and Electronic.
The Terms and Conditions are in several parts: The General Terms and
Conditions apply to all activity in your accounts; and Additional General
Terms and Conditions, which apply to each category of service and to
individual services.
Standard of Care and Limited Damages
We will follow these Terms and Conditions in delivering our Online Banking
Services to you in good faith and without negligence. We will also comply
with additional requirements of applicable law to the extent they are
not varied by these Terms and Conditions. As described more fully in
the General Terms and Conditions, we will be liable to you for actual
damages, but no other damages, if we breach this standard of care.
Acceptance
By using or continuing to use any Online Banking Service, you accept
the Terms and Conditions applicable to accounts and the services you
choose in the future. We may change any of the Terms and Conditions
upon 30 days written notice to you. You acknowledge your acceptance
of those changes by continuing to use Online Banking Services.
Definitions
As used in these Terms and Conditions "we", "our",
and "us" refer to Capital Bank & Trust Company or independent
third parties we designate to provide services pursuant to these Terms
and Conditions.
Account and Accounts mean, unless
otherwise provided, all present and future deposit accounts that you
have with us.
ACH network means an Automated Clearing House network
that electronically transfers funds between banks.
Affiliates include any entity that controls, is
controlled by, or is under common control with another entity.
Authorized individual means a person you have designated
to authorize actions for you.
Available funds and available balance
means the funds available for withdraw from an account as determined
by our Funds Availability Policy Disclosure.
Banking day means the part of a day upon which
our principal office is open for the conduct of substantially all
of our banking functions.
ET means the prevailing Eastern Time.
Facsimile signature refers to any method used by
you to indicate written approval other than a manual signature of
a natural person's name made by that person, but without regard to
color variations. The phrase includes (but is not limited to) the
use of signature stamps or plates, computer-generated symbols and
signatures produced by digital or other electronic means.
Including means including without limitation and
is intended to introduce some, but not all, examples.
MICR means magnetic ink character recognition.
NACHA Rules means the rules issued by the National
Automated Clearing House Association as amended from time to time.
PIN means personal identification number.
Regulation CC means Regulation CC of the Board
of Governors of the Federal Reserve System as it may be supplemented
or amended from time to time.
Online Banking means a modular reporting system
that provides a variety of balance and transaction information and
transaction initiating capabilities for your Capital Bank & Trust
Company Accounts.
Terms and Conditions means these General Terms
and Conditions as supplemented by the Additional Terms and Conditions
applicable to specific Online Banking Services you use, as they may
change from time to time.
Words and phrases defined in the Uniform Commercial Code as in effect
in New York have the same meaning in these Terms and Conditions as
therein.
Affiliate Accounts
We can also accommodate your affiliates through our Online Banking services.
By initiating services for any entity, you represent and warrant to
us that you have the authority to do so.
Authorized Individuals and Other Information
Depending on the types of services you choose, you need to designate
people to authorize actions for you on forms that we provide. If you
wish to change any information on a setup form or make any changes to
authorized individuals, contact us for the appropriate forms. We need
a reasonable period of time to process the change.
You represent and warrant to us that we may rely on acts that purport
to be authorized by those people you have designated on the setup forms.
In our discretion, we may rely on acts that purport to have been authorized
by the people you previously authorized.
Authorized Actions
If you authorize action, such as the payment of checks by facsimile
signature, we may rely on a facsimile signature that resembles that
appropriate facsimile signature specimen given by you to us and appears
to have been made through an authorized medium, regardless of how the
facsimile signature came to be placed on the item. We may rely on facsimile
signatures even if they were placed on items without your knowledge
or consent. We may pay items bearing a facsimile signature regardless
of the persons whom they are drawn or paid. You assume full responsibility
for all payments made by us in good faith over any facsimile signature
resembling, without regard to color variation, an appropriate specimen
facsimile signature.
We may pay any item drawn on your account and purported to be signed
by the appropriate authorized signer or signers regardless to whom the
item is drawn or paid. If you authorize action by any other form of
communication such as telephone, personal computer, or in person, or
if an applicable security procedure calls for authorization by any form
of communication, we can rely on persons identifying themselves by the
designated form of communication as authorized individuals.
Taxpayer Identification Number
You must provide us with your Taxpayer Identification Number and certify
your reporting status by completing IRS Form W-9 for each deposit account
you open, unless you meet the requirements for foreign depositors described
below. If you fail to provide us with a properly completed and signed
IRS Form W-9, we are required to backup withhold US Income Tax at the
current rate from all interest paid or credited to you account. For
exceptions to these rules, refer to the instructions for completing
IRS Form W-9.
Foreign Depositors
If you are a nonresident alien, foreign entity or exempt foreign person,
you must certify your foreign status by providing us with a properly
completed and signed IRS Form W-8 for each account you open. If you
fail to provide us with a properly completed and signed IRS Form W-8,
we are required to back up withhold US Income Tax at the then current
rate from all interest paid or credited to your account. For exceptions
to these rules refer to the instructions for completing IRS Form W-8.
Deposits to/Withdrawals From Your Account
Your accounts may receive credit through the deposit of items, incoming
wire transfers and ACH entries. Your accounts may be debited through
withdrawals such as checks, account adjustments and ACH entries. All
deposits are accepted subject to our verification and final inspection.
We may accept for deposit to your account all items made payable or
endorsed to you as an individual payee or joint payee regardless of
whether those items bear your endorsement, subject to our verification
and final inspection. You guarantee to us the payment of all such deposited
items.
We may refuse any deposit to an account, limit the amount of any deposit,
or return all or any part of a deposit to you without prior notice.
We reserve the right to return any item that we receive for deposit
to your account if we decide not to handle that item. If we make this
decision, we will send you a notice by the next banking day after we
receive the item.
We may treat any transaction occurring after a cutoff time or not
during the banking day to have occurred on our next banking day. For
example, if a deposit of cash and items occurs after the cutoff time
or not during the banking day, we may deem the cash and items to have
been deposited on our next banking day after the day of their deposit.
Refer to our Funds Availability Policy Disclosure for specific time.
Your account may be debited on the day an item is presented by electronic
or other means, or at an earlier time based on notification received
by us that an item drawn on your account has been deposited for collection
in another financial institution. A determination of your account balance
for purposes of making a decision to dishonor an item for insufficiency
of available funds may be made at any time between the receipt of such
presentment or notice and the time of return of the item, and no more
than one such determination need be made. We reserve the right to require
7 days prior written notice of withdrawals from any type of account
that earns interest.
Money Market Accounts
Monthly transfer limits apply to Savings and Money Market accounts.
These limits apply to the following types of transfers: (1) Telephone
transfers, (2) transfers made from an account at predetermined times
or on fixed schedules, or (3) items made payable to, cashed, or received
by anyone other than you or us (third party checks). These limits do
not apply to the following types of transfers: (1) withdrawals at one
of our branch offices, or (2) withdrawals at automated teller machines.
The types of transfers to which these limits apply are called "limited
transfers." The following limits apply to limited transfers: (1)
no more than a total of 6 limited transfers can be made from the account
in one month; and no more than 3 of these 6 transfers may be third-party
checks. We reserve the right to pay limited transfers, which exceed
these limits. We also reserve the right to stop you from making transfers
from an account if these limits are exceeded, convert the account to
a non interest bearing checking account, or close the account.
Available Funds
Our Funds Availability Policy Disclosure, which is in compliance with
Regulation CC's availability schedule and is subject to change without
notice, describes when funds in your account are made available to you.
Cash and items that you deposit to an account may not be immediately
available for your withdrawal. Please review our availability schedules
that apply to your accounts.
Insufficient Funds and Returned Items
An ordered transfer of funds may take the form of an item drawn on the
account, a withdrawal, a charge deducted from an account, a wire transfer,
an ACH entry, a transfer or payment made through Online Banking Services
or some other type of transaction. If an ordered transfer of funds from
your account is greater than that account's available funds balance,
we may choose either to refuse to make the transfer or to make the transfer
and overdraw the account.
The provision of Online Banking Services is not an extension of credit
or a commitment to extend credit to you by us. If the available balance
in the account is less than the sum of all requested disbursements on
any banking day, we reserve the right not to overdraw the account. While
we may make efforts to apply available funds to individual items, we
can not warrant the order in which we may do so. Neither can we warrant
that we will apply available funds in such a situation. If you have
authorized an ACH file containing individual payment orders and your
account has insufficient funds, we reserve the right to reject the entire
file. If any of your accounts become overdrawn for any reason, you must
make a deposit to the accounts for the amount of the overdraft as soon
as we notify you or you become aware of the overdraft. In connection
with some Online Banking Services, we advise you of the amounts required
to fund your account to cover all ordered transfers.
We may deduct the amount of an item deposited to your account from
your account balance if we receive notice that the item has not been
paid. You agree that we can notify you of the return as part of your
account statement unless we have contracted with you otherwise.
We reserve the right to charge any of your accounts if an item deposited
to one of your accounts is dishonored, returned or not paid even if
we have not sent you notice of the dishonor, return or nonpayment. We
also reserve the right to charge an unpaid item against your account
even if we could have made claim for reimbursement on the item from
the bank on which the item was drawn or from another bank. We may charge
an item against an account even if the charge results in an overdraft.
We may incur losses or expenses due to a delay in returning an unpaid
item if the item's endorsement is obscured by other material on the
back of the item. If you issue an item with material (for example, a
carbon band) on the back, you agree to indemnify us against any such
losses and expenses including any finance charges, legal fees and court
costs we may incur.
Post-Dated Stale-Dated Conditional Items
Check processing is a highly automated service, and we use commercially
reasonable efforts to process your items. We may, however, pay any item
drawn on an account even if one or more of the following are true: the
item is dated after the date we pay it; the item is presented to us
for payment more than 6 months after its date; a stop payment previously
requested has expired; the item contains language that purports to make
it void before the time it was paid; or the item contains other language
that purports to establish conditions under which it may be paid.
Stop Payment
You have these options in placing a stop payment on items drawn on your
Request account (except certified checks): come to any of our branch
offices for instructions; telephone our bank, make the request and confirm
your request in writing; or use Online Banking.
Any of your representatives may make or remove stop payment requests
for your account even if that person is not authorized to sign items
drawn on your account. For any stop payment request, you must provide
us with the complete and accurate account number, serial number (as
it appears on the item's MICR line) and date, the name of the payee
and the amount of the item.
We maintain various cut off times depending on the service and/or
method of communication for receiving stop payment orders. The time
allowed for you to make stop payment orders can not extend beyond the
time we have under applicable law, regulations and rules to return the
item or give notice of its dishonor or non payment. We are not bound
by stop payment orders received later. We require a reasonable time
to make any stop payment request effective. If you use Online Banking
to issue a stop payment order on a banking day before our cut off time
and for all other stop payment orders, "reasonable time" means
at least until the banking day after the banking day on which we receive
the request.
Interest
If a particular account bears interest, the applicable interest rate
may vary depending on balance levels. If an interest rate applies to
collected balance, that balance is based on our collection schedules
for checks and other deposited items. If we use your account's investable
balance to calculate interest, the investable balance is the collected
balance less a charge that relates to our Federal Reserve requirements
for that type of account. The method for calculating interest and the
applicable rates are subject to change without notice to you. We pay
interest on account balances if the account is open during the entire
statement cycle.
Federal Regulations restrict the opening of a checking with interest
account for certain types of organizations. You warrant to us that you
are eligible to open and maintain this type of account.
Statements
We send account statements for each of your accounts to the latest address
shown on our records. Please notify us promptly, but never later than
required by applicable law, of any errors in an account statement.
Fees
Charges for Online Banking Services may be shown on your account statement
or are available by separate disclosure and we will notify you at least
30 days before changing our fees. We charge your account for the amount
of the fees. A credit against fees based on the amount of the balances
in your account may be available.
Certain Rights
In opening an account, you grant to us a security interest in any balance
in your accounts (where applicable) to secure the payment of any of
your indebtedness to us, whether due or to become due. We can offset
any such balance against any such indebtedness even if indebtedness
is related to the operation of an account other than the one debited.
For example, we may charge one of your accounts if another has insufficient
funds.
Assignment
The agreement formed by your acceptance of these Terms and Conditions
through your use of Online Banking Services shall benefit and be binding
on successors and assigns. You may not, however, assign your accounts
or your access to Online Banking Services without our consent. Accounts
are not transferable except on our books. We may designate or contract
with any of our independent third parties to provide Online Banking
Services under these Terms and Conditions without giving you notice.
Notices
We can require advance notice for closing an account. Unless we specify
otherwise, we can send and receive a notice in writing, by telephone
or fax (or comparable transmission) or via Online Banking. All written
notices are effective three days after mailing (postage prepaid) and
immediately on personal delivery, fax (or comparable transmission) or
Online Banking.
Online Banking System
As an Online Banking customer, you can us Online Banking to electronically
receive information about activity in your accounts and to initiate
certain electronic transactions. Online Banking consists of information
reporting, transaction initiation and instruction entry services. You
may elect to use the information reporting services at any time.
We make available schedules for information availability and processing
as we adopt and amend them from time to time. You will be required to
select a security code to gain access to Online Banking. Strictly maintain
the confidentiality of the procedure you choose and do not disclose
it to any one. Do not allow any third party to gain access to Online
Banking and do not use Online Banking for the benefit of any third party
unless you are explicitly authorized by us to do so.
Online Banking Exclusions
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE ONLINE BANKING
SYSTEM WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. WE ASSUME NO
RESPONSIBILITY FOR ANY ADVISE OR ASSISTANCE ON OUR PART (OR ANY THIRD
PARTY WE MAY USE) TO HELP YOU INSTALL ONLINE BANKING ON YOUR PERSONAL
COMPUTER (S). WE WILL USE OUR BEST EFFORTS TO SUGGEST METHODS TO INSTALL
ONLINE BANKING, AND IF WE AGREE TO MAKE ANY CHANGES TO YOUR EXISTING
PERSONAL COMPUTER, WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES.
ACH Entries
Your accounts with prior authorization may be credited by another party
issuing an ACH credit entry or they may be debited by another party
issuing an ACH debit entry. Your accounts may be debited by an ACH debit
entry, such as an entry by another party, or debit entry you originate
from another account. ACH credits are provisional until we receive final
settlement or payment for any of these credits, we will charge the amount
of any credit for which we did not receive final settlement or payment
against your account. We reserve the right; however, to charge any of
your accounts if adequate funds are not available in the amount we initially
credited. Charges appear on Online Banking or as part of your account
statement. We are not required to notify you of any ACH credit or debit
entry.
Incoming Wire Transfers
Your accounts may receive credit through an incoming wire transfer.
You can contract us to receive notice of an incoming wire transfer;
otherwise, you waive any right to receive notice of the receipt of an
incoming wire transfer. An authorized person may instruct us about incoming
wire transfers. Those instructions may be to return payment and debit
your account in the amount of the incoming wire transfer or to authorize
us to convert a payment from foreign currency into U.S. dollars.
Security Devices/Passwords
We are concerned about security in sending and receiving information
as part of Online Banking Services. If you use a password, PIN, test
key, token or other security device or identifier in connection with
any Online Banking Service, you are responsible for the safe keeping
of that security device or identifier. Do not disclose your security
device or identifier to any one.
Limited Liability/Indemnification
If we fail to meet our standard of care, we are only liable to you for
your actual damages directly caused by our failure to provide Online
Banking Services in accordance with our standard of care. We are in
no event, however, liable for any indirect, special, incidental (except
as we may be required by law), consequential or punitive damages or
attorneys' fees. If we breach our limited warranty for Online Banking
made in these Terms and Conditions and are unable to make repairs or
replacement as contemplated in these Terms and Conditions, we are only
liable to you for your actual damages caused by our breach. Our charges
for providing Online Banking Services are unrelated to the value of
your business or the potential for indirect, special, incidental, consequential
or punitive damages even if we know of the possibility of such damages.
We are not liable for failing to act sooner than required by these Terms
and Conditions or applicable law. We also have no liability for failing
to take action if we had discretion not to act. We are not responsible
for your acts or omissions or those of any other person (including any
Federal Reserve Bank, transmission or communication facility, any receiver
or receiving depository financial institution or any bank you use) and
no such person shall be considered our agent.
In providing Online Banking Services, we rely on your representations
and warranties (e.g., your authority to open accounts for your affiliates).
We also rely on your performance of your duties under these Terms and
Conditions. You hold us harmless and indemnify us from any and all liabilities,
losses, claims or damages, including reasonable attorneys' fees, we
incur (1) if you make a false representation or breach a warranty, (2)
if you fail to perform your obligations under these Terms and Conditions
and applicable law or (3) as a result of our performance of Online Banking
Services for you in good faith and without negligence. You release us
from any claims arising, directly or indirectly, from our compliance
with these Terms and Conditions, including our exercise of rights under
these Terms and Conditions or applicable laws and rules.
Dispute You agree that we can submit any claim or controversy arising
out of or Resolution related to the accounts, these Terms and Conditions
or a breach thereof to arbitration under the arbitration procedures
established by the United States Arbitration and Mediation Association,
Mid-Atlantic Region, Inc. (as they may be amended from time to time).
We will pay half the cost of arbitration; you are responsible for the
other half. The decision and award of the arbitrator is final and binding
and may be entered in any court having jurisdiction. Any proceeding
will be held and award will be deemed to be made in Albany County, New
York.
Force Majeure, Acts of God
To the maximum extent permitted by the law, we are not liable
for inability to perform, delays, interruptions of service agencies
vice or damages of any kind caused by acts of God, war, civil commotion,
governmental action, fire, explosions, strikes, other industrial disturbances,
equipment malfunctions, delay by third parties, unusually severe weather
conditions or other events or circumstances beyond our reasonable control.
Sharing Account
By opening an account with us, you authorize us to make inquiries to
reporting agencies and financial institutions to obtain and verify information
Information concerning your deposit account experience. You also authorize
us to share information concerning your accounts with our affiliates
and their agents. Natural persons may refer to our Privacy
Policy for more information.
Governing Law
These Terms and Conditions are governed by laws of the United States
and the laws of the State of New York.
Cancellation
Online Banking Services can be cancelled by you or us on 30 days written
notice from an authorized individual. If cause exists, however, cancellation
can occur immediately. Upon cancellation, we may close your accounts.
Obligations under these Terms and Conditions to indemnify, hold harmless
and pay amounts owed shall survive cancellation of the Online Banking
Services.
Miscellaneous
Whenever possible, each provision of the Terms and Conditions will be
interpreted as valid under applicable law, but if any provision is held
to be invalid, that provision will be effective only to the extent of
such invalidity. The rest of the Terms and Conditions will be valid.
These Terms and Conditions and set up forms, where applicable, supersede
any prior agreements or representations relating to Online Banking Services.
Cash Management Representative
Contact your Online Banking Representative for forms required to open
an account, for a copy of our Funds Availability Policy or for any other
information you need. When you need to change an authorization or send
us any other notice, contact your Online Banking Representative for
additional information.
ADDITIONAL GENERAL TERMS AND CONDITIONS
FOR ZERO BALANCE ACCOUNTS
Introduction
You can use a Zero Balance Account (ZB) to centralize corporate cash
control of your divisions, subsidiaries and other affiliates for which
you are authorized to act. With a Zero Balance Account we can balance
each account daily at a target amount and concentrate remaining funds
in the Master Control Account (Master Account).
Zero Balance Account Master System
Zero Balance Account System means the group of accounts consisting of
the Account and the ZB Accounts.
Target Amount
You establish a target amount for each ZB Account. The target amount
is the balance, if any, that you want to establish in an account each
time we transfer activity between the accounts. The target amount may
be zero.
Daily Activity
We apply the availability schedule when crediting your account(s) in
the Zero Balance Account System for items deposited to those accounts.
These available balances are then reflected in the ZBA Master Account.
If we receive an item for deposit to your credit that does not designate
a particular account, we may use our discretion in choosing the appropriate
account. On each banking day, we follow our customary practices in crediting
and debiting each ZB Account for items drawn on those accounts or charge
back any item returned unpaid. If demand deposit posting operations
result in an overdraft of a ZB Account, we debit the appropriate Master
Account in an amount necessary to credit the overdrawn account, bringing
the balance to its target amount.
Achieving Target Amount
We automatically debit or credit each ZB Account on each banking day
by an amount necessary to achieve its target amount. We then make a
corresponding credit or debit.
Restrictions
Your Zero Balance Accounts are subject to important restrictions.
We reserve the right to:
- Delete one or more accounts from the Zero Balance Account System
on notice to you.
- Suspend Zero Balance Account Services.
- Require you, before we make payment on items, to fund any account
in the Zero Balance Account System with Sufficient available funds
to pay items drawn on that account and presented to us.
- Charge any account in the Zero Balance Account System for items,
fees or other amounts drawn upon, due from or chargeable to any other
account in the Zero Balance Account System. You and your subsidiaries
and other affiliates that participate in your Zero Balance Account
System are jointly and severally liable for any losses, costs, damages
and expenses we incur in providing Zero Balance Account Services.
- Pay items drawn on any account in the Zero Balance Account System
in the order we deem necessary or convenient.
- Decline to process, delay processing or dishonor any payment or
item drawn on your account in the Zero Balance Account System if there
are not sufficient available balances among all the accounts in the
Zero Balance Account System, including the Master Account.
- Reverse any provisional credit to an account in the Zero Balance
Account System for an item and reverse any entry to an account in
the Zero Balance Account System arising from provisional credit.
- Net positive balances against overdrafts in the accounts in the
Zero Balance Account System to meet reverse and reporting requirements
imposed on us.
- Exercise, with respect to all accounts in the Zero Balance Account
System, any rights available to us by law with regard to demand deposit
accounts.
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