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SERVICE. Bank may, in its sole discretion, from time to time offer certain services described in this Agreement and applicable Exhibits, including, Mobile Deposit Services, via a Mobile Device (“Mobile Services”). Company understands and acknowledges that the Mobile Services allow Company and Authorized Persons to conduct certain services described herein via a Mobile Device, but increase the potential that unauthorized persons may obtain access to Mobile Devices and attempt to conduct banking services on behalf of the Company. Bank, in its sole discretion, shall determine which services shall be offered as Mobile Services, and may establish additional procedures to regulate use of these services. Further details regarding the scope and requirements may be posted from time to time at www.firstamericanbanknm.com and such requirements are incorporated herein by reference. From time to time, Bank may condition the Company’s use of such Mobile Services on the Company obtaining the necessary Mobile Device and related hardware and software. Bank has entered into an agreement with Bottomline Technologies, Inc. and may enter into additional agreements with third party vendors (each a “Licenser”), pursuant to which Licenser will furnish, the software, support and services for the Mobile Services used by Company’s Mobile Device. Bank reserves the right from time to time to replace the Licenser with another third party vendor.

DEFINITIONS. The following definitions shall apply to this Mobile Treasury Management Services and Transactions Section:

Mobile Device means a mobile telephone, mobile tablet or other mobile device capable of sending and receiving SMS text messages, accessing the Internet via a web browser or downloading, installing and using specially developed mobile applications.

Mobile Deposit Services means, initially, the electronic deposit of the image of an original paper check or other paper source document payable in US Dollars to the Company into the Company’s eligible deposit accounts with Bank from any remote locations through use of a compatible Mobile Device and delivering the electronic image and associated deposit information to the Bank.

Mobile Banking Software means the service and support for the mobile based banking product used by the Bank.

MOBILE DEVICE, REPORTING, AND FEES. Company understands that the cost of such Mobile Device and related service charges (including Mobile Device Internet connection) is not part of the Mobile Deposit Service or otherwise provided by Bank under this Agreement.

Company understands that it is responsible for acquiring, maintaining and operating any Mobile Device used to access the Mobile Services and its related hardware and software and for all associated costs and expenses, including without limitation, all fees incurred for data transfers and as a result of sending and receiving SMS text messages through such Mobile Device service. Company understands that transactions conducted via Mobile Services may also be subject to:

• Applicable Bank imposed fees; and
• Fees imposed by third parties with whom Company has entered into other agreements. Company is solely responsible for all costs assess by Company’s Mobile Device service provider for receiving any message or SMS text message through such Mobile Device. Company understands that the Bank is not responsible for any losses, costs, expenses, liabilities or damages that Company incurs as a result of a failure to receive messages or alerts, the interception or alteration of any message by an unauthorized third party, or Company’s incurrence of message or alert fees for messages or alters Company did not receive.

Company understands and acknowledges that in addition to any other disclaimers or limitations of liability as otherwise stated in this Agreement, Bank shall not be liable for losses or damages arising from:

• Non-delivery, delayed delivery or wrong delivery of any messages, alerts or other communications that Company would normally access via Mobile Device;
• Inaccurate content in any Mobile Services messages, alters or other communications accessed by or sent directly to Company’s Mobile Device; (iii) any actions resulting from the intentional or unintentional disclosure by Company to any authorized person of the contents of any messages, alters or other communications sent directly to or received by the Mobile Device; or use or reliance on the contents of any messages, alters or other communications for any

Bank is not a party to and has no liability, duty or responsibility with respect to or in connection with:

• Company’s mobile communications service provider agreement, or
• Any Mobile Device, hardware, software or any other product or service Company may purchase from others relating to Company’s use of Mobile Services. This Agreement does not amend or supersede any agreements that Company has with third parties (such as Mobile Device supplier and mobile communications service provider), and Company remains subject to all terms, fees, costs, other charges, limitations and restrictions in those agreements with third parties. Company’s Mobile Device supplier and mobile communications service provider are responsible for their products and Company agrees that any problems concerning those companies’ products, services or agreements shall be resolved by Company directly and without involving Bank.

CONFIDENTIAL INFORMATION. The source code, listings, and any accompanying support materials and documentation supplied under this Agreement, as well as the ideas and concepts incorporated in such items, are confidential to and trade secrets of Bank and Licenser (“Confidential Information”). Company agrees to provide Confidential Information only to those employees, agents, and independent contractors who are required to know of its existence.

Company shall inform all such individuals of the confidential nature of the Confidential Information, and such persons shall be bound by the terms and conditions of the Agreement. Company further agrees to take all other actions necessary or appropriate to preserve the confidentiality of the Confidential Information and to protect and secure the Mobile Banking Software in a manner consistent with Bank’s and Licenser’s rights. Except as specifically provided in this Agreement, Company agrees not to publish, disclose, display or otherwise make available any Confidential Information without the advance written consent of the Bank and Licenser. The provisions of this Section 4 shall survive the termination of this Agreement.

SECURITY PROCEDURES. Company acknowledges that the Mobile Banking Software contains optional security procedures for obtaining access to the Mobile Services. These security procedures include passwords and user ids. Company acknowledges and agrees:

• Company has thoroughly reviewed the security procedures for Mobile Services; and
• Company will implement the security procedures suggested for the Mobile Services and review any security initially set by Bank to insure the security desired by

Company agrees that the security procedures chosen by Company in this section constitute commercially reasonable security procedures. Company acknowledges the security risks inherent in Mobile Services and assumes the risk that the security procedures Company selects are sufficient, and Company bears all risk of loss.

Company agrees that Bank may condition the provision of the Mobile Services hereunder upon Company’s acceptance, implementation and use of recommended security procedures. If Company, for any reason, does not elect to adopt, implement and use any recommended security procedures, Company assumes all risk of loss and the security procedures otherwise elected to be adopted, implemented and used by Company shall be deemed to be commercially reasonable.

As part of Company’s registration for Mobile Services Company understands that Company must certify that it is a customer of Bank, and Customer agrees to provide a valid U.S. telephone number, including the area code, for the Mobile Device(s) that will be used for the Mobile Services. Company understands that it is Company’s responsibility to provide true, accurate, current and complete information about Company when registering for the Mobile Services.

Bank will make transmission of masked account number and specific information, including, but not limited to, dollar amounts, or individual payees and payers and such transmission does not constitute transmission of personal or private information, and Company hereby authorizes Bank to send such information via any communication to Mobile Device for the Mobile Services.

BANK’S LIMITED WARRANTIES. Subject to all terms of this Agreement, in the event the Mobile Banking Software or any portion of the Mobile Banking Software is held to constitute an infringement of any third party’s rights such that use of such Mobile Banking Software by Company is prohibited, Bank and Licenser shall, at their election,

• Promptly procure the right for Company to utilize the Mobile Banking Software, or
• Notify Company of their intent to discontinue use of the Mobile Banking Software and provide alternative Mobile Banking Software providing substantially equivalent services.

TRANSMISSION. Company agrees to transmit transactions pursuant to this Agreement and Exhibits (“Transactions”) to Bank in accordance with such instructions as Bank shall give from time to time in writing, and in accordance with the specifications described in the Mobile Banking Software, the Mobile Services, and under this Agreement.

EXCLUSIVITY. Company agrees that the Mobile Banking Software is proprietary with respect to Bank and Licenser, and that Company shall not, under any circumstance transmit a transaction via Mobile Banking Software to any financial institution or other entity other than Bank for processing. Company agrees that any breach of this covenant shall constitute an immediate and material breach of this Agreement. Company further agrees to indemnify and hold harmless Bank from any and all liabilities, claims, and damages resulting from Bank’s breach of this Section 8.

THIRD PARTIES; REMEDIES; DAMAGES; LIMITATIONS OF LIABILITY. Company understands and agrees that the amount paid to Bank for the provision of services under this Agreement and related Exhibits is very small in relation to the amount of Company’s funds that will be the subject of transactions, and that Bank’s sole liability to Company for failure to act in accordance with any instructions or for any other error, omission, or other failure in the performance of services under this Agreement and related Exhibits shall be limited to the amount of fees paid by Company for this service during the month of such occurrence.

Company acknowledges and agrees that Licenser is the owner of the Mobile Banking Software and that all provisions of Licenser’s Master Service Agreement (the “License Agreement”) are legally binding upon Company and will control the terms of the Company’s use of, and claims and damages relating to, the Mobile Banking Software. The terms of the License Agreement are cumulative with this Agreement and related Exhibits.

Company agrees that Bank shall not be liable for, and hereby waives any claims against Bank, relating to any damage, loss, or cost incurred by Company resulting from or arising out acts or omissions of any third parties, including, but not limited to, SWACHA, NACHA, any member of NACHA, and Federal Reserve Bank, or any other financial institution or entity receiving or transmitting transactions or funds in connection with this Agreement and related Exhibits. In no event shall Bank be liable to Company or to any person with respect to any Transaction for any indirect, consequential, special, punitive or similar damages.

Except as specifically provided above, Company agrees to defend, indemnify and hold Bank harmless from all claims, demands, losses, liabilities, expenses and costs, including attorney’s fees and costs, resulting or arising, directly or indirectly, from (a) Bank’s actions and omissions under this Agreement and related Exhibits,(b) any act or omission by Company or any of its agents employees or representatives, or any person who obtains access to the Mobile Services through Company’s Mobile Device, equipment or premises, including but not limited to, fraud or forgery.

• Any failure on the part of the Company to comply with Bank’s requirements, the EFT Act, Regulation E or any other federal of state law or regulation; and (d) any default, failure, or breach by Company with respect to any warranty, representation, or covenant of this Agreement and related exhibits.

Company understands that there are risks associated with using any Mobile Device, and that in the event of theft or loss, confidential company information could become compromised.

Company acknowledges that the security procedures Bank requires for use of the Mobile Services, as set forth in this Section and elsewhere in this Agreement, are commercially reasonable, and Company understands that security of the Mobile Services is contingent upon Company protecting all user IDs and passwords for Mobile Devices and Mobile Services.

Company acknowledges that in addition to any other disclaimers or limitations of liability as otherwise stated in this Agreement, Bank shall not be liable for losses or damages arising from:

• Non-delivery, delayed delivery or wrong delivery of any messages, alerts or other communications that Company would normally access via the Mobile Device;
• Inaccurate content in any Mobile Services Message, alerts or other communications accessed by or sent directly to their Mobile Device;
• Any actions resulting from the intentional or unintentional disclosure by Company to any unauthorized person of the contents of any messages, alerts or other communications sent directly to or received by the Mobile Device; or
• Use or reliance on the contents of any messages, alters or other communications for any purpose.

Company acknowledges and agrees that Bank is not responsible for any related Mobile Device hardware or software or equipment failures. Bank will, however, direct Company’s complaints and suggestions with regard to the Mobile Banking Software and Mobile Services to Licenser promptly upon receipt in writing of such complaint and suggestion from Company.

COMPANY’S WARRANTIES, REPRESENTATIONS, AND COVENANTS. 

Company warrants, represents and covenants that each transaction submitted to Bank via a Mobile Device or through Mobile Services:

• Will be accurate, true and correct in all respects,
• Will have been fully authorized and approved by the Company holding the account to which the Transaction pertains and such authorization and approval will be effective until such Transaction is posted to the account,
• Will be valid and timely under such authorizations,
• Will fully satisfy and comply with all applicable requirements of the Bank and other guidelines,
• Will fully comply with the EFT Act, Regulations CC, Regulation E and all other federal and state laws and regulations applicable thereto, and
• Fully comply with the specifications of the Mobile Banking Software and Mobile Banking Software requirements.

You make the following warranties and representations with respect to each image:

• Each image is a true and accurate rendition of the front and back of the original check, without any alteration, and the drawer of the check has no defense against payment of the check.
• The amount, payee(s), signature(s), and endorsement(s) on the image and on the original check are legible, genuine, and accurate. Your endorsement must include your signature and “Mobile Deposit Only at First American Bank”.
• You will not deposit or otherwise endorse to a third party the original check and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original check or a paper or electronic representation of the original check such that the person will be asked to make payment based on an item that has already been paid.
  • There are no other duplicate images of the original
  • The original check was authorized by the drawer in the amount stated on the original check and to the payee(s) stated on the original
  • You are authorized to enforce and obtain payment of the original check.(iv)You have possession of the original check and no party will submit the original check for

Limits. First American Bank (“we” or “Bank”) shall establish limits on the dollar amount and/or number of items or deposits based on your account relationship. If you attempt to initiate a deposit in excess of these limits, we may reject your deposit. If we permit you to make a deposit in excess of these limits, such deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a deposit at other times.

Eligible items. You agree to scan and deposit only checks (i.e., drafts drawn on a credit union, savings and loan or bank and payable on demand.)

You agree that you will not use Mobile Deposit to deposit:

• Checks payable to any person or entity other than you (i.e., payable to another party and then endorsed to you).
• Checks payable to you and another party who is not a joint owner on the account. (iii)Checks that contain evidence of alteration, or that 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 is drawn.

Requirements. Each image must provide all information on the front and back of the original check at the time presented to you by the drawer, including, but not limited to, information about the drawer and the paying bank that is preprinted on the original check, MICR information, signature(s), any required identification written on the front of the original check and any endorsements applied to the back of the original check. The image quality must meet the standards established by the American National Standards Institute, the Board of Governors of the Federal Reserve, and any other regulatory agency, clearing house or association.

Receipt of Deposit. All images processed for deposit through Mobile Deposit will be treated as “deposits” under your current Account Agreement with us and will be subject to all terms of the Account Agreement, with the exception of Regulation CC. When we receive an image, we will confirm receipt via email to you. We shall not be deemed to have received the image for deposit until we have confirmed receipt to you. Confirmation does not mean that the image contains no errors. We are not responsible for any image that we do not receive. You agree to electronic receipts/notifications or confirmation of deposits via online or email.

Returned Deposits. Any credit to your account for checks deposited using Mobile Deposit is provisional. If original checks deposited through Mobile Deposit are dishonored, rejected or otherwise returned unpaid by the drawee bank, or are rejected or returned by a clearing agent or collecting bank, for any reason, including, but not limited to, issues relating to the quality of the image, you agree that an original check will not be returned to you, but that we may charge back the amount of the original check and provide you with an image of the original check, a paper reproduction of the original check or a substitute check. You will reimburse us for all loss, cost, damage or expense caused by or relating to the processing of the returned item. Without our approval, you shall not attempt to deposit or otherwise negotiate an original check if it has been charged back to you.

We may debit any of your accounts to obtain payment for any item that has been rejected or returned, for any adjustment related to such item or for any warranty claim related to such item, whether or not the rejection, return, adjustment or warranty claim was made timely.

Funds Availability. Adherence to Expedited Funds Availability Act. The items transmitted using this Service are not subject to the funds availability requirements of Reg CC. If an image of an item is received through this Service and accepted before 4:00 PM mountain time, on a business day, we consider that the day of deposit. Otherwise, we will consider that the deposit was made on the next business day. Funds deposited using this Service will generally be made available in 2 business days from the day of deposit. A business day is Monday through Friday, excluding all holidays recognized by the Federal Government. If there is a doubt of collectability, we may delay the availability of funds for a reasonable period of time until the item is either paid or returned.

Company Responsibility. You are solely responsible for the quality, completeness, accuracy, validity and integrity of the image. You are solely responsible if you, intentionally or unintentionally, submit fraudulent, incorrect or illegible images to us or if Mobile Deposit is used, by authorized or unauthorized persons, to submit fraudulent, unauthorized, inaccurate, incorrect or otherwise improper or unusable images to us. You are responsible for updating Mobile Applications as they become available. In addition you agree that you will not modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the technology or Service, copy or reproduce all or any part of the technology or Service; or interfere, or attempt to interfere, with the technology or Service. We and our technology partners, inclusive of, but not limited to, Bottomline Technologies and Vertifi Software, LLC, retain all rights, title and interests in and to the Services, Software and Development made available to you.

Accountholder’s Indemnification Obligation. You understand and agree that you are required to indemnify us and hold us harmless against any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and expenses arising from your use of the Services and/or breach of this Disclosure and Agreement. You understand and agree that this paragraph shall survive the termination of this Agreement. You understand and agree that you are required to indemnify our technology partners, including but not limited to Bottomline Technology (Bottomline) and Vertifi Software, LLC (Vertifi), and hold harmless Bottomline, its affiliates, officers, employees and agents, as well as Vertifi, its affiliates, officers, employees, and agents, from and against any third party claims, suits, proceedings, actions or demands, including to claims of another financial institution, business entity or governmental authority, and all losses, liabilities, damages, fines, penalties, costs and expenses, including court costs and reasonable attorney fees and expenses, arising from such claims, to the extent such claim is related to FI or End User’s use of the Services, Vertifi or Bottomline Applications, unless such claim directly results from an action or omission made by Bottomline or Vertifi in bad faith. You understand and agree that this paragraph shall survive the termination of this Agreement.

DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF ANY REMOTE BANKING SERVICE AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF ANY REMOTE BANKING SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT ANY REMOTE BANKING SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE MAKE NO WARRANTY THAT THE RESULTS THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE OR THAT ANY ERRORS IN ANY REMOTE BANKING SERVICE OR TECHNOLOGY WILL BE CORRECTED.

LIMITATION OF LIABILITY. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES INCURRED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE USE OF, INABILITY TO USE, OR THE TERMINATION OF THE USE OF ANY REMOTE BANKING SERVICE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF, EXCEPT AS OTHERWISE REQUIRED BY LAW.

IN NO EVENT WILL ANY THIRD PARTY BE LIABLE HEREUNDER FOR AN AMOUNT EXCEEDING THE LESSER OF THE ACTUAL DAMAGES INCURRED BY CUSTOMER OR THE FEES PAID BY CUSTOMER FOR USE OF THE RESPECTIVE THIRD PARTY SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO WHEN THE EVENT GIVING RISE TO THE LIABILITY TOOK PLACE, WHETHER IN CONTRACT, TORT, OR OTHERWISE.

The software provided by Financial Institution to Customer contains software provided by one or more third parties (“Third Party Software”) under contract with Financial Institution (each a

“Third Party”) Restrictions. Customer agrees that it will not itself, and will not permit any parent, subsidiary, affiliate, agent or other third party to:

• Sell, provide, distribute, lease, rent, lend, relicense, sublicense, or display Third Party Software or related documentation except as necessary to utilize the Software for mobile check deposits;
• Decompile, disassemble, reverse engineer or attempt to reconstruct the Third Party Software, identify or discover any source code, trade secret, know-how, or ideas underlying user interface techniques or algorithms of Third Party Software by any means whatsoever, or disclose any of the foregoing;
• Create any derivative works or any other software program based upon Third Party Software or related documentation or modify Third Party Software in any way; or
• Use Third Party Software or documentation to develop or enhance any product that competes with Third Party

Intellectual Property. Financial Institution or the Third Parties, as the case may be, retain all rights, title and interests, including intellectual property rights, in and to the Third Party Software and services, any improvements, translations, modifications or derivatives thereof, and any related documentation provided or made available to Customer, including all intellectual property rights therein. Customer acknowledges that the Third Party Software and related documentation contain copyrighted material, trade secrets, and other material that is proprietary to one or more Third Parties. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in the Third Party Software, services, or any related documentation or materials and all rights not expressly granted herein are reserved by Financial Institution and the Third Parties. Customer agrees to assign, and hereby does assign, to the Third Party all rights, title and interest, including all intellectual property rights, in any ideas, modifications, enhancements, improvements, inventions, works of authorship or any other suggestions that Customer or any of its employees or agents propose, create, author or develop relating to that Third Party’s Software or services, and will take all necessary action, including execution of relevant documents, to perfect such party’s ownership thereof.

Compliance with Law. Customer represents, warrants, and covenants that it will comply with all applicable laws, rules, regulations and prevalent industry standards in their use of Third Party Software, including compliance with applicable requirements under state and federal laws and regulations related to data security and nonpublic personal information, as defined or used in such applicable law or regulation. You warrant that you will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations.

Confidentiality. “Third Party Confidential Information” means trade secrets, know-how, data, methods, documents, devices, software code, technology, technical information, as well as, business, financial or customer information of a Third Party. Confidential Information will not include any information that Customer can prove:

• Was publicly known in the trade or business prior to its receipt of the Third Party Software; or
• Was entirely and independently developed by the Customer without any use or reference to Confidential Information of the other

Customer acknowledges that Third Parties own all rights, titles and interests, including all IP Rights in Third Party Confidential Information. Customer may use Third Party Confidential Information only in connection with its utilization of the Third Party Software and Financial Institution’s services, and not for any other purpose. Customer will protect Third Party Confidential Information from unauthorized use or access.

Customer acknowledges that Third Party Confidential Information may still be under development or may be incomplete or may relate to products that are under development or planned for development. NO THIRD PARTY MAKES ANY WARRANTIES REGARDING THE ACCURACY OF ITS CONFIDENTIAL INFORMATION OR ITS USE FOR A PARTICULAR PURPOSE. Neither Financial Institution nor any Third Party grants any license or right to Third Party Confidential Information except for the limited use of such information in connection with this agreement.