Section 1. Service Generally.
1.1 Access Grant. Subject to the terms and conditions of these End User Terms, Farmers & Merchants Bank of Long Beach (“Bank”) shall make the Service available to customer as an end user (“Customer”) in accordance with the terms of these End User Terms. By using the Service, Customer agrees to these End User Terms, as amended from time to time.
1.2 Acceptable Use of the Service. Customer agrees that it is solely responsible for Customer’s linked accounts and Content. Customer agrees not to use or permit the use of the Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity; (c) in any manner that may be unlawful or give rise to civil or criminal liability; (d) in any manner that is likely to damage, disable, overburden (exceeding the fair use policy), impair the Service or interfere in any way with the use or enjoyment of the Service by others; (e) to introduce any malware or other malicious activity; or (f) in violation of any applicable export law or regulation.
1.3 Suspension or Termination of Access to Service. Bank may suspend or terminate Customer’s use of all or a portion of the Service or remove or disable Content in Bank’s sole discretion, with or without cause and at any time.
Section 2. Third-Party Products and Services.
2.1 Non-Bank Applications and Services. Bank may make available to Customer optional third-party applications, services or products, which are licensed by their provider to Customer, for use in connection with the Service (“Third-party Products”). Customer’s use of any Third-party Products and any exchange of any information between Customer and third-party provider is solely between Customer and the applicable third-party provider. Bank makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of such Third-party Products.
2.2 Access by Third-Party. If Customer authorizes a third party to access the Service on Customer’s behalf, Customer will be solely responsible and liable for all actions and inactions of said third party. Customer expressly assumes the risks associated with providing Service access rights to its agents or third-party vendors, including but not limited to the risk of unauthorized or erroneous transactions. Bank will not be responsible, nor have any liability whatsoever for any services Customer receives from Customer’s agents or third-party vendors. Bank reserves the right to require Customer to agree to additional terms and conditions as a condition precedent to Customer’s use of any agent or third-party vendor in connection with Customer’s access to the Service.
Section 3. Location. The Service is provided from the United States and Content is stored in the United States. Notwithstanding the foregoing, Customer agrees not to access the Service, including Content, outside of the United States (unless expressly agreed to by Bank).
Section 4. Customer Responsibilities.
4.1 Content. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Content; and (b) ensure that the Content complies with the terms of these End User Terms and all applicable laws and regulations. Notwithstanding anything to the contrary, Bank has no liability to Customer or any third party for any reason as a result of: (i) any unauthorized disclosure or access to a Customer’s accounts or Content as a result of Customer’s misuse of the Service or loss or theft of Customer’s access credentials, including user passwords or usernames, except to the extent directly resulting from Bank’s gross negligence or willful misconduct; (ii) any deletion, destruction, damage or loss of Content caused by or at the direction of Customer; or (iii) any failure of Customer to maintain adequate security or virus controls in any devices used to access the Service.
4.2 Notification of Unauthorized Use. Customer will promptly notify Bank in writing if Customer becomes aware of any unauthorized access or use of the Service, including any account or Content. In the event of any such unauthorized use by a third party that obtained access to the Service directly or indirectly through Customer, Customer will take all steps within Customer’s control as reasonably necessary to terminate such unauthorized use and will provide Bank with such cooperation and assistance related to any such unauthorized use as Bank may reasonably request.
Section 5. Support. For support questions regarding the Service, please contact your loan officer/account manager, during Bank’s normal business hours.
Section 6. DISCLAIMER OF WARRANTIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED ON AN “AS-IS” AND AS AVAILABLE BASIS. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, BANK MAKES NO WARRANTY (AND BANK SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (A) ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS; (B) THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; (C) ANY IMPLIED WARRANTY OR CONDITION OF: (I) SATISFACTORY QUALITY; (II) FITNESS FOR A PARTICULAR PURPOSE; AND (III) OR NON-INFRINGEMENT; AND (D) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
Section 7. Proprietary Rights. As between Bank and Customer, Bank or its licensors own and reserve all right, title and interest in and to, including any improvements or derivatives, the Service, the Bank marks and other items used to provide the Service, other than the access rights expressly granted to Customer in these End User Terms (Access Grant). No title to or ownership of any proprietary rights related to the Service is transferred to Customer pursuant to these End User Terms. All rights not expressly granted to Customer are reserved by Bank.
Section 8. Cutoff Hours. Aspects of the Services may be subject to processing cutoff hours. Communications received after the cutoff hour or on a non-business day may, in Bank’s discretion, be deemed received as of the next business day. Alternatively, some Services may require Customer to resubmit a communication when it is received after the cutoff hour or on a non-business day.
Section 9. Fees. Customer agrees to pay all fees set forth in Bank’s applicable schedule of fees which is available upon request and is subject to change by Bank at any time. Customer agrees that Bank may debit Service fees against any of Customer’s accounts, at any time and without advance notice.
Section 10. Indemnification. Customer agrees to indemnify and hold harmless Bank against any third party claim: (a) that any Content, or Customer’s use of the Service in breach of these End User Terms, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not the result of Bank’s actions); or (b) relating to any Content or to Customer’s use of the Service in violation of this Agreement. Customer will, with respect to any claim against Bank that is subject to this Section, indemnify Bank for the resulting costs and damages finally awarded against Bank to such third party by a court of competent jurisdiction or agreed to in settlement.
Section 11. Limitation of Liability
11.1 Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL BANK’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, OR THAT OF BANK’S SERVICE PROVIDERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THESE END USER TERMS EXCEED THE TOTAL FEES PAID BY CUSTOMER TO BANK (OR TO A BANK SERVICE PROVIDER, IF APPLICABLE) FOR THE SERVICE IN THE SIX (6) MONTHS PRECEDING THE DATE OF THE FIRST EVENT WHICH GIVES RISE TO LIABILITY UNDER THESE END USER TERMS. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY (a) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR (b) BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.2 Disclaimer of Consequential and Related Damages. IN NO EVENT WILL BANK OR BANK’S SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR LOSS OR USE OF DATA) HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF BANK OR BANK’S SERVICE PROVIDERS HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS EXCLUSION WILL NOT APPLY TO THE EXTENT NOT PROHIBITED BY LAW.
Section 12. Customer Records; Not Backup Service. The Service is not intended to relieve Customer of any obligation imposed by law or contract regarding the maintenance of records or from employing adequate audit, accounting, and review practices as are customarily followed by similar businesses. The Service does not include, and Bank does not act as, a backup, data recovery or disaster contingency service. Customer acknowledges that it is Customer’s sole responsibility to make and retain backups of all Customer’s data, including before any transmission or upload to the Services. Customer agrees to retain and provide to Bank, upon request, all information necessary to remake or reconstruct any file, entry, transmission, transaction request or order until at least three years following receipt by Bank of the file, entry, transmission, transaction request or other order affecting an account.
Section 13. Security. Bank incorporates commercially reasonable and appropriate methods and safeguards to protect the security, confidentiality, and availability of the Service.
Section 14. Applicable Law. These End User Terms will be construed and enforced in all respects in accordance with the laws of California, without reference to its choice of law rules.
Section 15. Force Majeure. In the event Bank is prevented from performing, or is unable to perform, any of its obligations under these End User Terms due to any cause beyond the reasonable control (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) (“Force Majeure”) Bank’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.