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This Agreement, which includes the Fee Schedule and Enrollment Form, is a contract which establishes the rules which cover your electronic access to your accounts at First American Bank (“BANK”) through Online Banking (“SYSTEM”). By using SYSTEM, you accept all the terms and conditions of this Agreement. Please read it carefully.

The terms and conditions of the deposit agreements and disclosures for each of your BANK accounts as well as your other agreements with BANK such as loan documents continue to apply notwithstanding anything to the contrary in this Agreement. In the event of a conflict between this Agreement and the deposit agreement and disclosure or any other such agreement, the terms of the deposit agreement and disclosure or such other agreement will control.

This Agreement is subject to applicable federal laws and the laws of the State of New Mexico (except to the extent this Agreement can and does vary such rules or laws). If any provision of this Agreement is found to be unenforceable according to its terms, all remaining provisions will continue in full force and effect. The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions hereof. Any waiver (express or implied) by BANK of any default or breach of this Agreement must be in writing and shall not constitute a waiver of any other or subsequent default or breach. You may not assign this Agreement. This Agreement is binding upon your heirs and BANK’s successors and assignees. Certain of the obligations of the parties pursuant to this Agreement that by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement. This Agreement, together with the Enrollment Form and Fee Schedule, constitutes the entire agreement between you and BANK with respect to the subject matter hereof and there are no understandings or agreements relative hereto which are not fully expressed herein.

Definitions. As used in this Agreement, the words “we,” “our,” “ours”, “us,” and “BANK” mean First American Bank.  “Customer, “you” and “your” refer to the account holder authorized by BANK to use SYSTEM under this Agreement and anyone else authorized by that accountholder to exercise control over the accountholder’s funds through SYSTEM. “Account” or “accounts” means your accounts at BANK. “Electronic funds transfers” means ATM withdrawals, preauthorized transactions, point of sale transactions and transfers to and from your BANK accounts using SYSTEM. “SYSTEM Services” means the services provided pursuant to this Agreement. “Business days” means Monday through Friday. Holidays are not included.

Access. To use SYSTEM, you must have at least one checking account at BANK, access to Internet service, and an e-mail address. Once we have received your signed Enrollment Form and verified your account information we will send you, either by e-mail or by postal mail, confirmation of our acceptance of your enrollment, along with your assigned log-in ID and temporary password. SYSTEM can be used to access only the accounts which you have designated for access by SYSTEM in your Enrollment Form. You can add or delete any of your accounts from this Agreement by completing a new Enrollment Form. Access to your accounts through SYSTEM will be based upon the identification of users and authority levels specified by you in your Enrollment Form. We undertake no obligation to monitor transactions through SYSTEM to determine that they are made on behalf of the accountholder.

SYSTEM Services. You can use SYSTEM to check the balance of your accounts, view account histories, transfer funds between your accounts and make stop payment requests. Balance and activity information are available as of 6:00 p.m. (Mountain Time) of the previous business day.

Hours of Access. You can use SYSTEM seven days a week, although some or all SYSTEM services may not be available occasionally due to emergency or scheduled system maintenance. In addition, your accessibility to SYSTEM may be interrupted because of conditions beyond our control, including because of outages in Internet availability. We will use commercially reasonable efforts to re-establish SYSTEM in those instances, but we do not promise SYSTEM will always be available for your use.

Your Password. For security purposes, you are required to change your password upon your initial login to SYSTEM. You determine what password you will use and the identity of your password is not communicated to us. You agree that we are authorized to act on instructions received under your password. You accept responsibility for the confidentiality and security of your password and agree to change your password regularly. Upon multiple unsuccessful attempts to use your password, your access to SYSTEM will be revoked. To re-establish your authorization to use SYSTEM, you must contact us to have your password reset or to obtain a new temporary password.

We recommend that you create a password that utilizes both upper and lower case alpha and numeric characters for purposes of security. Your password should not be associated with any commonly known personal identification, such as your social security number, address, date of birth or names of children, and should be memorized rather than written down.

PIN/Password Security. You are responsible for the security and confidentiality of any PIN or password used to access the SYSTEM Services or any other service hereunder. You agree not to disclose or otherwise make available any PIN or password to anyone not authorized to sign on your accounts. If you do disclose your PIN or password to another, you have granted them authorization to use that device to make transfers. Until you notify us, that authorization will remain in effect. Telephoning us at 800-289-6140 is the quickest way to revoke this authorization. We may request that you put this revocation in writing within 10 business days after first contacting us. If you fail to revoke this authorization, you may be liable for all transfers made by the authorized person, even if you were unaware of the transfers at the time they were made. We encourage you to change your PINs and password from time to time for your own protection. You agree to follow prudent Internet security guidelines to prevent unauthorized persons from installing programs on your computer that would compromise your login ID and password.

Security. You understand the importance of your role in preventing misuse of your accounts through SYSTEM and you agree to promptly examine your statement for each of your accounts as soon as you receive it. You agree to protect the confidentiality of your account and account number, and your personal identification information, such as your driver’s license number and social security number. You understand that personal identification information by itself, or together with information related to your account, may allow unauthorized access to your account. Your password and login ID are intended to provide security against unauthorized entry and access to your accounts. Data transferred via SYSTEM is encrypted in an effort to provide transmission security and SYSTEM utilizes identification technology to verify that the sender and receiver of SYSTEM transmissions can be appropriately identified by each other. Notwithstanding our efforts to ensure that the SYSTEM is secure, you acknowledge that the Internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the Internet and potentially can be monitored and read by others. We cannot and do not warrant that all data transfers utilizing SYSTEM, or e-mail transmitted to and from BANK, will not be monitored or read by others.

Fees and Charges. You agree to pay the fees and charges for your use of SYSTEM as set forth in the current fee schedule. You agree that all such fees and charges will be deducted from the account designated as the “Primary Checking Account” on your Enrollment Form. If you close your Primary Checking Account, you must contact us immediately to designate another account as your Primary Checking Account. You agree to pay any additional reasonable charges for services you request which are not covered by this Agreement. You are also responsible for telephone, mobile, and Internet service fees you incur in connection with your use of SYSTEM.

Posting of Transfers. Transfers initiated through SYSTEM before 6:00 p.m. (Mountain Time) on a business day are posted to your account the same day. Transfers completed after 6:00 p.m. (Mountain Time) on a business day or on a Saturday, Sunday or banking holiday will be posted on the next business day. You agree to communicate with any other persons with authorized access to your accounts concerning any transfers from your accounts in order to avoid overdrafts.

Overdrafts (Order of Payments, Transfers, and other Withdrawals). If your account has insufficient funds to perform all electronic fund transfers you have requested for a given business day, then:

1. Electronic funds transfers involving currency disbursements, like ATM withdrawals, will have priority;
2. Electronic fund transfers initiated through SYSTEM which would result in an overdraft of your account may, at our discretion, be cancelled; and
3. In the event the electronic fund transfers initiated through SYSTEM which would result in an overdraft of your account are not cancelled, overdraft charges may be assessed pursuant to the terms of the deposit agreement for that account.

Limits on Amounts and Frequency of SYSTEM Transactions. The number of transfers from BANK accounts and the amounts which may be transferred are limited pursuant to the terms of the applicable deposit agreement and disclosure for those accounts. If a hold has been placed on deposits made to an account from which you wish to transfer funds, you cannot transfer the portion of the funds held until the hold expires.

Stop-Payment Requests. You may initiate stop payment requests online via SYSTEM only for paper checks you have written on your accounts. Online stop payment requests are processed when actually received by BANK in proper form. The stop payment must precisely identify the name of the payee, the check number, the amount and the date of the check. If you make your stop payment request online or by telephone, we may also require you to put your request in the form of paper writing and get it to us within 14 days after you initiate online or call. You will incur stop payment charges as disclosed in the current fee schedule for the applicable account.

Disclosure of Account Information and Transfers. You understand information about your accounts or the transfers you make may automatically be disclosed to others. For example, tax laws require disclosure to the government of the amount of interest you earn, and some transactions, such as large currency and foreign transactions, must be reported to the government. We may also provide information about your accounts to persons or companies we believe would use the information for reasonable purposes, such as when a prospective creditor seeks to verify information you may have given in a credit application. In addition, we routinely inform credit bureaus when accounts are closed because they were not handled properly. We may also seek information about you from others, such as the credit bureau, in connection with the opening or maintaining of your account or in connection with approving your access to SYSTEM. You agree to, and hereby authorize, all of these transfers of information.

Periodic Statements. You will receive either an electronic or paper statement. Transfers to and from your accounts using SYSTEM will appear on the respective periodic statements for your accounts.

Change in Terms. We may change any term of this Agreement at any time. If the change would result in increased fees for any SYSTEM Service, increased liability for you, fewer types of available electronic fund transfers, or stricter limitations on the frequency or dollar amount of transfers, we agree to give you notice at least 21 days before the effective date of any such change, unless an immediate change is necessary to maintain the security of an account or our electronic fund transfer system. We will post any required notice of the change in terms on the SYSTEM web site or forward it to you by e-mail or by postal mail. If advance notice of the change is not required, and disclosure does not jeopardize the security of the account or our electronic fund transfer system, we will notify you of the change in terms within 30 days after the change becomes effective. Your continued use of any or all of the subject SYSTEM services indicates your acceptance of the change in terms. We reserve the right to waive, reduce or reverse charges or fees in individual situations. You acknowledge and agree that changes to fees applicable to specific accounts are governed by the applicable deposit agreements and disclosures.

Our Right to Terminate. You agree that from time to time we may limit access to SYSTEM services to perform routine hardware or software maintenance and for similar purposes.

1. Without prior notice, if you have insufficient funds in any one of your accounts. SYSTEM service may be reinstated, at our sole discretion, once sufficient funds are available to cover any fees, pending transfers, and debits.
2. Upon three business days’ notice, if you do not contact us to designate a new Primary Checking Account immediately after you close your Primary Checking Account.
3. Upon reasonable notice, for any other reason at our sole discretion.

Communications between BANK and You. Unless this Agreement provides otherwise, you can communicate with us in any one of the following ways:

• Email. You can contact us by e-mail at [email protected] (Please note that banking transactions through SYSTEM are not made via email.)
• Telephone. You can call us by telephone at 800-289-6140
• Postal Mail. You can write to us at:
  First American Bank
  P.O. Box AA
  Artesia, NM 88211
• In Person. You may visit us in person at any one of our locations:

Consent to Electronic Delivery of Notices. You agree that any notice or other type of communication provided to you pursuant to the terms of this Agreement, and any future disclosures required by law, including electronic fund transfer disclosures, may be made electronically by posting the notice on the SYSTEM web site or by e-mail. You agree to notify us immediately of any change in your e-mail address.

Our Liability for Failure to Complete Transactions. If we do not complete a transaction to or from your account on time or in the correct amount according to our Agreement with you, we will be liable for your losses or damages. However, there are some exceptions. For instance, we will not be liable:

• If, through no fault of ours, you do not have enough available funds in your account (or available funds under your overdraft protection plan), or credit to cover the transaction or transfer;
• If SYSTEM was not working properly, and you knew about the malfunction when you started the transaction or transfer;
• If circumstances beyond our control (such as fire or flood) prevented the transaction or transfer, despite reasonable precautions we have taken;
• If there are postal delays or processing delays by the payee; or
• There may be other exceptions not specifically mentioned.

MOBILE BANKING AGREEMENT AND DISCLOSURES

This Mobile Banking Agreement and Disclosures (this “Agreement”) contains the terms and conditions for the use of First American Bank Mobile Banking that First American Bank (“Bank,” “us,” or “we”) may provide to you (“you,” or “User”). Other agreements you have entered into with First American Bank, including the Depository Agreement and Disclosures governing your Bank account, are incorporated by reference and made a part of this Agreement. In the event of a conflict between this Agreement and the Depository Agreement and Disclosures, the terms of the Depository Agreement and Disclosures will control.

I. Introduction. We endeavor to provide you with the highest quality Mobile Banking (the “Service”) available. By enrolling in the Service, you agree to all the terms and conditions contained in this Agreement. We may offer additional Mobile Banking services and features in the future. Any such added Mobile Banking services and features will be governed by this Agreement and by any terms and conditions provided to you at the time the new Mobile Banking service or feature is added and/or at the time of enrollment for the feature or service, if applicable.  From time to time, we may amend this Agreement and modify or cancel the Mobile Banking services we offer without notice, except as may be required by law.  Your continued use of the Service constitutes your consent to any such amendment.

II. Definitions. As used in this Agreement, the following words have the meanings given below:  “Account(s)” means your eligible Bank Checking, Savings, Loans, CDs, information and other Bank of products that can be accessed through Mobile Banking.  “Device” means a supportable mobile device including a cellular phone or other mobile device that is web-enabled and allows secure SSL traffic which is also capable of receiving text messages. Your wireless carrier may assess you fees for data or text messaging services. Please consult your wireless plan or provider for details.  “Mobile Banking” or the “Service” means the banking services accessible from the Device you have registered with us for Mobile Banking.

III. Mobile Banking Service.   

A. Description of Service. Mobile Banking is offered as a convenience and supplemental service to our Online Banking services. It is not intended to replace access to Online Banking from your personal computer or other methods you use for managing your accounts and services with us. Mobile Banking allows you to access your account information, make payments to payees, transfer funds and conduct other banking transactions. To utilize the Service, you must be enrolled to use Online Banking and then activate your Device within the Online Banking system. We reserve the right to limit the types and number of accounts eligible and the right to refuse to make any transaction you request through Mobile Banking. We may also reserve the right to modify the scope of the Service at any time.  Mobile Banking may not be accessible or may have limited utility over some network carriers. In addition, the Service may not be supportable for all Devices. We cannot guarantee and are not responsible for the availability of data services provided by your mobile carrier, such as data outages or “out of range” issues.  

B. Use of Service. In order to properly use Mobile Banking, you should review and follow the instructions provided on our website. You agree to accept responsibility for learning how to use Mobile Banking in accordance with the online instructions and agree that you will contact us directly if you have any problems with Mobile Banking. We may modify the Service from time to time at our sole discretion. In the event of any modifications, you are responsible for making sure you understand how to use Mobile Banking as modified. You also accept responsibility for making sure that you know how to properly use your Device and we will not be liable to you for any losses caused by your failure to properly use the Service or your Device.  

C. Other Agreements. You agree that, when you use Mobile Banking, you remain subject to the terms and conditions of your existing agreements with any unaffiliated service providers, including, but not limited to, your mobile service provider and that this Agreement does not amend or supersede any of those agreements. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of Mobile Banking (such as data usage or text messaging charges imposed on you by your mobile service provider for your use of or interaction with Mobile Banking), and you agree to be solely responsible for all such fees, limitations and restrictions. You agree that only your mobile service provider is responsible for its products and services. Accordingly, you agree to resolve any problems with your provider directly without involving us. Any deposit account, loan or other banking product accessed through this Service is also subject to the applicable Account Agreements and Disclosures provided at the time of Account opening. You should review these agreements and disclosures carefully, as they may include transaction limitations and fees which might apply to your use of Mobile Banking.

D. Venue. The parties agree that, for purposes of any conflict arising under this agreement, jurisdiction and venue as to the parties for any action arising from this agreement shall be proper in Magistrate Court in Eddy County, New Mexico.  

IV. Permitted Mobile Banking Transfers. You may use the Service to transfer funds between your eligible First American Bank Accounts (“Internal Transfer”). You may not transfer to or from an account at another financial institution using Mobile Banking. If you submit your transfer request prior to the deadline established by us for the transfer service, you will initiate an immediate Internal Transfer via Mobile Banking. Transfer transaction requests received after 6:00 p.m. MST on business days and all transactions which are requested on Saturdays, Sundays, or holidays on which we choose to remain closed will be processed on our next business day.  You must have sufficient funds available in the selected account at the time the transfer request is received, including any available overdraft protection. We may process transfers that exceed your available balance at our sole discretion. If we process the transfer and unless your overdraft protection is provided via an Overdraft Line of Credit, you agree to cover any overdraft amount plus any applicable fees. Federal regulations require financial institutions to limit the way withdrawals may be made from a savings or money market account. Each transfer from a savings or money market account using Mobile Banking is counted as one of the six limited transactions permitted each monthly statement cycle period, as described in the Deposit Account Agreement and Disclosures. You may be subject to fees or account conversion if you exceed the transaction limits of your Account using Mobile Banking or any other methods outlined in your other Account Agreements and Disclosures. We may also limit the type, frequency and amount of transfers for security purposes and may change or impose the limits without notice, at our option. You agree to confirm the completion of each transfer in your account balance and transaction history before withdrawing transferred funds.  

V. Your Responsibilities. You represent and agree to the following by enrolling in or by using the Service:  

A. Account Ownership/Accurate Information. You represent that you are the legal owner of the accounts and other financial information which may be accessed via Mobile Banking. You represent and agree that all information you provide to us in connection with Mobile Banking is accurate, current and complete, and that you have the right to provide such information to us for the purpose of using Mobile Banking. You agree not to misrepresent your identity or your account information. You agree to keep your account information up to date and accurate. You represent that you are an authorized user of the Device you will use to access Mobile Banking.  

B. User Security. You agree to take every precaution to ensure the safety, security and integrity of your account and transactions when using Mobile Banking. You agree not to leave your Device unattended while logged into Mobile Banking and to log off immediately at the completion of each access by you. You agree not to provide your username, password or other access information to any unauthorized person. If you permit other persons to use your Device, access information, or other means to access Mobile Banking, you are responsible for any transactions they authorize and we will not be liable for any damages resulting to you. You agree not to use any personally identifiable information.  We make no representation that any content or use of Mobile Banking is available for use in locations outside of the United States. Accessing Mobile Banking from locations outside of the United States is at your own risk.  C. User Conduct. You agree not to use Mobile Banking or the content or information delivered through Mobile Banking in any way that would: (a) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of privacy, including any rights in the Service; (b) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of Mobile Banking to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (f) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (g) potentially be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt computer networks connected to Mobile Banking; (i) interfere with or disrupt the use of Mobile Banking by any other user; or (j) use Mobile Banking in such a manner as to gain unauthorized entry or access to the computer systems of others.  

D. No Commercial Use or Re-Sale. You agree that the Service is only for the personal or business use of individuals authorized to access your account information. You agree not to make any commercial use of Mobile Banking or to resell, lease, rent or distribute access to Mobile Banking.  

E. Indemnification. Unless caused by our intentional misconduct or gross negligence, you agree to indemnify, defend and hold harmless us and our affiliates, officers, directors, employees, consultants, agents, service providers, and licensors from any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) caused by or arising from (a) a third party claim, dispute, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or otherwise in connection with the Service; (b) your violation of any law or rights of a third party; or (c) your use, or use by a third party, of Mobile Banking.