December 20, 2007
What this Agreement Covers.
This Agreement governs the use of Cole Taylor Bank’s
Online Business Electronic Banking, Pay Bills
and Telephone Banking Services (collectively,
“Service”.) In this Agreement, the words “you”
and “your” mean each account owner. If there is
more than one owner, these words mean each
account owner separately, and all account owners
jointly. The words “we” “us’ or “our” refer to
Cole Taylor Bank. This Service is restricted to
use for business customer accounts, defined as
customers that are not consumer, family or
household customers. Your accounts remain
subject to our Rules and Regulations Regarding
Deposit Accounts (the “Rules”.) In the case of
any conflict between this Agreement and the
Rules, the provisions of this Agreement will
prevail to the extent necessary to resolve the
conflict. All references to time of day in this
Agreement refer to prevailing time in Chicago,
Illinois. The term “business day” means Monday
through Friday excluding Federal and State of
Illinois holidays.
Designated Company and
Authorized Users.
In order to use the Service, we require you to
execute this Agreement and complete Exhibit A,
attached hereto and fully incorporated herein,
which requires you to designate the company that
will be set up to utilize the Service and allows
you to appoint and assign up to two (2)
individuals (the “Authorized User”) to utilize
the Service. You are solely responsible for all
transfers, transactions and other activity in
your account effected through the Service by
your Authorized User regardless of whether or
not it is actually authorized. If you access an
account ordinarily subject to instructions
requiring the signatures of more than one
individual for checks or other transactions, you
understand and agree that we may, without any
liability, disregard such instructions when
acting on your online instructions under the
Service.
Access Codes and Effect
You will choose a User ID, User Name, Customer
Access Code, Password, Personal Identification
Number or other identification number
(collectively, “User Access Code”) which is
needed to access the accounts via the Service.
You agree not to give the User Access Code to
any person not authorized to access the accounts
and to otherwise keep the User Access Code
confidential. You accept all liability that
legally can be imposed on you for each use of
the User Access Code, whether or not each use is
authorized by you.
Access to the Service is subject to the User
Access Code and in addition may also be subject
to the use of certain numbers, codes, marks,
signs, site keys, images, captions, challenge
questions or other means establishing your
identity to us. All electronic communications
that meet these requirements will be deemed
authorized by you, valid and authentic. You
authorize us to carry out instructions given to
us through the Service as if those instructions
were written orders or checks, as the case may
be bearing your signature. We are responsible
for acting only on those instructions sent
through the Service which are actually received,
and neither we nor any agent or independent
contractor (“Service Providers”) assume any
responsibility for malfunctions in
communications facilities or equipment not under
our or the Service Providers control. Neither we
nor the Service Providers shall be responsible
for any losses, errors, failures or delays in
the transmission of instructions caused by the
malfunction or failure of your hardware or
software, arising out of the use of any access
service or relating in any way to any computer
virus.
The use of a User Access Code and the related
procedures described above are security
procedures for banking transactions performed
with the Service. You acknowledge that you have
reviewed these procedures in light of the size,
frequency and amount of your transactions and
find them to be commercially reasonable.
If you lose your User Access Code or at any time
you believe or suspect that someone has or is
using your User Access Code or that the security
of your accounts has been compromised, please
notify us immediately
by calling (847) 653-7474 and speaking with one
of our customer service representatives. Failure
to notify us immediately may result in losses to
your accounts. We will
never ask you for your
User Access Code and you should never include
your User Access Code in any email or written
communication with us.
Fees and Charges
Currently, we do not charge a fee for using the
Service; however we reserve the right to charge
a fee for using the Service without providing
prior notice to you, unless such notice is
required by applicable law.
- Online Business Electronic Banking
You may use Online Business Electronic Banking
to access a variety of banking services. You
may: (a) transfer funds between accounts
whenever you request; (b) obtain current balance
and other deposit account information; (c)
review images of your cleared checks; (d) obtain
loan account information; (e) request stop
payment on checks; (h) submit check reorder
requests; (i) pay bills and obtain other
services which we may add, from time to time.
When you instruct us to transfer funds between
accounts, you authorize us to withdraw the
necessary funds from the specified account.
Subject to the following provisions, any
transactions or transfers will occur on the day
designated by you. We reserve the right not to
allow any transactions or make transfers, which
would exceed the balance of collected funds in
the account from which the funds are being
transferred. Transfers or transactions initiated
or scheduled on days which are not business days
and same-day transfers or transactions initiated
after 7:00 P.M. will be processed on the next
business day. You agree that we and the Service
Providers have no responsibility or liability
for any damages, expenses, charges or
liabilities which may occur as a result of any
failure, delay or omission on the part of us or
the Service Providers, except as may be imposed
by law.
You may cancel any Online Business Electronic
Banking instructions by calling (847) 653-7474
and speaking with a customer service
representative prior
to 4:00 pm on the day the instructions are to be
carried out by us.
- Pay Bills
You may direct us to make payments from your
account to third parties (the “Payees”) that you
have selected in advance to receive payment
through our Bill Payment service (“Pay Bills”).
We reserve the right, in our sole discretion, to
refuse to allow certain Payees to be part of Pay
Bills. For example, payments may be made only to
Payees with a U.S. payment address. Further, you
may not make a payment of alimony, child
support, taxes, or other governmental fees or
court directed payments through Pay Bills.
Pay
Bills. You may
use a personal computer to electronically direct
us to make payments from your checking account
to Payees whom you have selected in advance to
receive payments through Pay Bills.
Using Pay Bills. In
order to activate this service, select Pay Bills
and follow the onscreen instructions. To use Pay
Bills, you must provide information online to us
about a Payee to permit us to properly direct a
payment and to permit the Payee, upon receipt of
a payment, to identify you as the payment
source. You do this by filling in all required
fields. By providing us the Payee account
information, you authorize us to execute the
payment instructions you send to us. You agree
not to initiate a payment request that will
exceed the balance of collected funds in the
applicable account at the time of withdrawal.
Types of Pay Bills.
You will be able to set up the following types
of bill payments:
- Single payment: You may schedule a payment
(subject to the lesser of) the dollar limit set
by us from time to time or the balance of
collected funds in your accounts in any 24-hour
period to be made one time to a Payee. Please
call (847) 653-7474 and speak with a customer
service representative regarding the dollar
limits set by us. The payment may be scheduled
to be made at a future date or on the same day
that you enter the payment information on Pay
Bills. A same day payment must be scheduled by
7:00 P.M. on a business day in order for the
payment to be initiated (deducted from your
account) on the same day.
- Recurring Payment: You may schedule payments
to Payees (subject to the lesser of) the dollar
limit set by us from time to time or the balance
of collected funds in your accounts to be
automatically initiated in a predetermined
amount on the same date every month. Please note
that if the date does not exist in a certain
month, then the payment will be initiated on the
last business day of the month. If the Payment
Date falls on a day other than a business day in
any month, your payment will be initiated (i.e.
the payment will be deducted from your account)
on the following business day.
Scheduling Payments.
Before scheduling a payment to a Payee, the
Payee must be set up by you on Pay Bills. To set
up a Payee online through the Service you need
to select Pay Bills and follow the onscreen
instructions under Add a Merchant. To schedule a
payment, select Pay Bills and follow the
onscreen instructions under Single Pay. You will
be provided a reference code for each payment
you schedule using Pay Bills. This number is
available on the history screen if you need to
refer to it in the future. The reference code
will help us resolve any questions you may have
concerning your transaction. You may not
schedule duplicate payments. A duplicate is one
that is scheduled to be made to the same Payee
on the same date for the same amount. You also
may not schedule multiple single payments to the
same Payee for payment on the same business day.
Delivery of Your Payments.
You may schedule payments to be initiated on the
day that you enter the payment information, on a
future date (not more than 364 days later) or on
the same date each month, subject to the
restrictions in this Agreement. Although you can
enter payment information through Pay Bills
24-hours a day, 7 days a week, payments can be
initiated (i.e., deducted from your account and
transmitted to the selected Payee) only on a
business day. This date is referred to as the
“Payment Date.” After funds are withdrawn from
your account, we may remit your payment by
mailing your Payee a check drawn on an account
we maintain for this purpose, by electronic
funds transfer or by other means. Because of the
time it takes to transmit your payment to the
Payee, the Payee will not receive payment on the
Payment Date. Therefore, to provide sufficient
time for payments to be received by your Payee,
the Payment Date should be a date at least five
(5) business days before the bill's actual due
date. You must also take account of any posting
time required by your Payee. We will not be
responsible for any loss you may incur as a
consequence of a late payment if your Payment
Date was not at least five (5) business days
prior to the bill's actual due date.
Limitation of our Liability
for Pay Bills.
We will reimburse you for
late payment fees or penalties you are charged
up to a maximum of $50 per scheduled payment to
a business Payee that is not received by close
of business on the fifth business day after the
scheduled Payment Date under the following
conditions: as a result of the failure of a
Payee to receive a payment made through Pay
Bills by the bill's actual due date to the
extent that we have not refused the transaction
if we reasonably believe such refusal is
necessary for security reasons, as long as you
meet each of the following conditions: (a) you
must properly schedule the payment to be
initiated on a date at least five (5) business
days prior to the bill's actual due date; (b)
you must provide us with the correct name,
address, and account information of the Payee
and the correct payment amount; (c) on the
Payment Date, your checking account must have
contained sufficient funds to complete the
payment; and (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.
Changing or Canceling
Payments. You may change or cancel a
single payment or recurring payment until 7:00
P.M. on the Payment Date by selecting Pay Bills
from our internet banking menu and follow the
onscreen instructions for canceling any pending
payment. You will receive a reference code when
your payment has been canceled. This canceled
payment will appear on your history screen. You
may modify a recurring payment to a merchant by
selecting the Payee from the Merchant List under
Pay Bills and edit the recurring payment
information.
Canceling Pay Bills.
The Pay Bills service shall remain in effect
until it is terminated by you or us. You must
notify us in writing at the address provided
herein if you wish to cancel Pay Bills. Please
note we cannot cancel Pay Bills until all
pending payments have cleared, if you have
pending payments and do not want to wait for
them to clear, you may individually delete these
future payments. You will not receive a refund
of any service fee if you cancel Pay Bills. We
may cancel Pay Bills, in whole or part, in our
sole discretion, at any time without prior
notice, unless such notice is required by
applicable law. Cancellation shall not affect
your liability or obligations under this
Agreement.
Accuracy of Information.
You are solely
responsible for the content and
accuracy of all information you provide us with
respect to a payment. You must be sure that your
Payee information is current and up to date. We
have no duty to detect errors in any information
you send us. We do not monitor the use of the
Service by you or your Authorized User. If an
Authorized User of yours uses the Service to pay
a bill which is not yours, it is nevertheless
considered authorized by you and you assume the
entire risk of loss.
Account Statements.
All of your payments and other activity with the
Service appear on your monthly account
statement. We urge you to review your account
statements promptly and to report to us any
errors or discrepancies you find or suspect as
provided in the Rules.
Limitations
on Frequency of Transfers. You acknowledge that if any of
the accounts are money market or savings
accounts, federal regulation generally permits a
maximum number of transfers. Please refer to the
Rules for specific information regarding the
limitations on frequency of transfers.
Telephone Banking
Telephone Banking is an electronic banking
service that provides information on your
accounts and allows you to transfer funds
between your accounts 24-hours a day, 365 days a
year. Please see the Rules for all of the terms
and conditions that govern your use of the
Telephone Banking system.
General Provisions
Limitation of Liability for any
Transfer or Transaction. We are not
liable if: (a) through no fault of ours, you do
not have enough money in your account to make
the transfer or transaction, (b) your funds are
subject to legal process or other encumbrance
restricting such transfer or transaction, (c)
the transfer or transaction would go over the
credit limit on any overdraft line, (d) the
Service were not working properly and you knew
about the breakdown when you started the
transfer or transaction, or (e) circumstances
beyond our control (such as fire or flood)
prevent the transfer or transaction, despite
reasonable precautions that we have taken.
Termination.
This
Agreement shall remain in effect until it is
terminated by you or us. You must notify us in
writing at the address provided herein to advise
us of you desire to cancel this Agreement.
You agree that we may limit, suspend or
discontinue the Service, in whole or in part, or
terminate this Agreement at any time for any
reason without prior notice, unless such notice
is required by applicable law. You further
understand and agree that we may from time to
time at our option change the Service or amend
the terms of this Agreement. You will be
notified of any such changes or amendments as
required by applicable law and agree that, by
using any of the Service after a change or
amendment becomes effective, you shall be deemed
to have agreed to the change or amendment.
Termination of this Agreement shall not
terminate your account relationship or other
agreements with us. You agree that we shall have
the right, exercised at our sole discretion, to
disable your access to the accounts via Business
Electronic Banking after ninety (90) calendar
days of inactivity.
Confidentiality.
We
may disclose information to third parties about
the accounts or the transfers you make: (a)
where it is necessary for completing transfers;
(b) in order to verify the existence and
condition of the accounts for a third party,
such as a credit bureau or merchant; (c) in
order to comply with government agency or court
orders; (d) if you give us your written
permission or (e) as required under applicable
law.
Arbitration and
Waiver of Jury Trial. All
controversies, disputes or claims arising out of
or related to this Agreement, including without
limitation controversies regarding the validity
of this Agreement and any compulsory
counterclaims (as defined by Rule 13 of the
Federal Rules of Civil Procedure), but,
excluding collections of amounts due to us, will
be submitted for binding arbitration to the
Chicago, Illinois office of the American
Arbitration Association on demand of you or us.
Such arbitration proceeding will be conducted in
Chicago, Illinois, and will be heard by one
arbitrator in accordance with the then-current
rules of the American Arbitration Association.
All matters relating to arbitration will be
governed by the Federal Arbitration Act (9
U.S.C. section 1, et seq.) and not by any state
arbitration law. The decision and award of the
arbitrator shall be binding and conclusive upon
both you and us, and enforceable in any court of
competent jurisdiction. The arbitrator will have
the right to award or include in the award any
lawfully appropriate relief and to assess costs
or expenses to either you or us, or both. The
provisions of this section will continue in full
force and effect subsequent to and
notwithstanding the termination of this
Agreement. Each party hereby expressly agree to
waive any right to a trial by jury in connection
with any controversies, disputes or claims
arising out of or related to this Agreement.
Warranty and Disclaimer.
Neither we nor the Service Providers shall be
responsible for any loss or damages, whether
direct, indirect, special, incidental or
consequential, arising in connection with the
Service, except for as specifically provided in
the “Limitations of our Liability for Pay Bills”
section included in this agreement. Neither we
nor the Service Providers make any warranties
under this Agreement of any kind, whether
statutory, express or implied, concerning this
Agreement including without limitation, any
warranties of merchantability, fitness for a
particular purpose or non-infringement.
Reliability
of Information; System Downtime.
Any account information furnished by the Service
Providers or us is believed to be reliable but
is not guaranteed. We and our Service Providers
are not liable for any deficiencies in such
information or for any decision made using this
information. Although we strive to ensure full
performance of the Service, neither we nor the
Service Providers shall be liable for any losses
resulting from your inability to access the
Service due to system downtime: (a) caused by
circumstances beyond our reasonable control; or
(b) due to necessary maintenance, system
upgrading or similar circumstances.
Address for Notice and Communications.
Cole Taylor Bank
Attn: Customer Service Department
9550 West
Higgins Road
Rosemont,
IL
60018
In Case of Errors
or Questions about Your Electronic Transfers or
Transactions. If you think there
was an error in your transfer, transaction or
payments or if you need more information about a
transfer, transaction or payment, telephone or
write to the Customer Service Center as soon as
you can. We must hear from you no later than
thirty (30) calendar days after we make
available the FIRST statement on which the
problem or error appeared. You will be required
to provide the following information; 1) your
name and account number; a description of the
error or the transfer you are unsure about, and
an explanation as to why you believe is an error
or why you need more information; and 3) the
dollar amount of the suspected error. Your
failure to fully comply with section will
preclude you from asserting any loss or claim
against us.
Severability;
Governing Law. 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.
This Agreement shall be governed by the
applicable federal law and the applicable
substantive laws of the State of Illinois
(exclusive of any conflict of laws or rules of
the State of Illinois, which may result in the
application of the substantive laws of another
jurisdiction). Stop payment orders received by
us through Business Electronic Banking shall be
governed by the Illinois Uniform Commercial Code
and the Rules.
Indemnification.
You hereby agree to hold harmless Cole Taylor
Bank and its officers, directors, employees,
representatives and agents, from and against and
reimburse us for any and all claims, expenses,
obligations, liabilities, losses, damages,
injuries (to person, property or natural
resources), penalties, stand or other taxes,
actions, suits, judgments, reasonable costs and
expenses (including reasonable attorney's fees
and expenses) of whatever kind or nature
regardless of their merit, demanded, asserted or
claimed against us directly or indirectly
relating to, or arising from, claims against us
in connection with this Agreement, including
without limitation all reasonable costs required
to be associated with claims for damages to
persons or property, and reasonable attorneys',
allocable in-house attorneys` fees and
consultants' fees and expenses and court costs
except to the extent caused by our gross
negligence or willful misconduct. In no event
shall we be liable for special, indirect or
consequential loss or damage of any kind
whatsoever (including but not limited to) lost
profits, even if we have been advised of the
likelihood of such loss or damage and regardless
of the form of action.
Assignment.
This Agreement and the rights and obligations
hereunder of the parties may not be assigned
except with the prior written consent of the
parties hereto. This Agreement shall be binding
upon and inure to the benefit of each party's
respective successors and permitted assigns.
Except as expressly provided herein, no other
person shall acquire or have any rights under or
by virtue of this Agreement.
Waiver.
The rights and remedies conferred upon the
parties hereto shall be cumulative, and the
exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of
any additional rights or remedies. No term or
provision shall be deemed waived, and no
variation of the terms of provisions hereof
shall be deemed consented to, unless such waiver
or consent is in writing and signed by the party
against whom the waiver or consent is sought to
be enforced. Any delay, waiver or omission by a
party to exercise any right or power arising
from breach or default of this Agreement shall
not be construed to be a waiver by the party of
any subsequent breach or default of the same or
other terms, provision or covenants on the part
of the other party.
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