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Disclosure

This Online Billing Payment Agreement ("Agreement") for accessing your loan account(s) governs the online billing loan service ("e-Payment Service") offered by First Bank & Trust and First Bank & Trust NA and any of their affiliates or direct or indirect subsidiaries. By using the online billing Service, you agree to abide by the terms and conditions stated in the Terms and Conditions separately provided to you through this service. This Agreement will be governed by and interpreted in accordance with all applicable federal laws and regulations.

In this Agreement, the words:

 "We," "us," and "our" refer to First Bank & Trust and First Bank & Trust NA and any of their affiliates or direct or indirect subsidiaries, when they or the affiliates or subsidiaries have established an Eligible Account.

"You" and "your" mean the owner of an Eligible Account, any delegate of an owner, or an authorized representative.

"Eligible Account" means each loan account you have with us that is accessible through the Service. Eligible Accounts may include any consumer and mortgage loans you may have with us and an online password.

"Origination Date" means the date your payment begins processing.

"Business Day" means Monday through Friday, excluding Saturday, Sunday, and federal banking holidays.

Scheduling the e-Payments Service Payments

Payments made through the e-Payment Service require sufficient time for your payee to receive your payment and credit your Account properly. To avoid incurring a finance or other charge, you must schedule a payment sufficiently in advance of the payment due date. There will be a delay between the Origination Date (the date your payment begins processing) and the date we receive the payment. You must schedule the payment in accordance with the payment rules displayed on the pay loans screen. The Origination Date must be at least 2 full Business Days prior to the date the loan payment is due to us. For scheduling purposes, the first Business Day after your scheduled Origination Date should be counted as Day 1. You must time your payment using the due date of the payment and not the last day of any grace period established by us. Payments must be scheduled before 5:00 p.m. (CST) to be processed on that day. Funds will be withdrawn from your Payment Account on the Business Day following your Origination Date.

Timing for Completion of Funds Transfers Initiated Through the Service

A transfer completed through the Service before the transfer cutoff time on a Business Day will be posted to your Eligible Account within 3 business days, but will post as of the business date the transaction was made. All transfers completed after the transfer cutoff time on a Business Day or at any time on a day that is not a Business Day, will be posted on the second Business Day. The transfer cutoff time is 5:00 p.m. (CST).

 

The Service is subject to this Agreement and also to the following, which are considered part of this Agreement:

  • The terms or instructions appearing on a screen when using the Service;
  • Procedures and policies, as amended from time to time, that apply to the Service and each Eligible Account;
  • The rules and regulations of any funds transfer system or payment system used in connection with an Eligible Account; and
  • State and federal laws and regulations, as applicable.

Your Other Agreements with Us

In addition to this Service Agreement, you may have a separate agreement for each of your Eligible Accounts. Each of your Eligible Accounts will continue to be subject to any other agreement that applies to it.

 

Fees

There are no monthly or transaction fees for accessing your Account(s) through the online billing.

 

Conflicts Between Agreements

If this Agreement conflicts with another agreement, or the other agreement has terms that are not addressed in this Agreement, then the other agreement will control and take precedence, unless this Agreement specifically states otherwise. The other agreement will only control with respect to the Eligible Account(s) it is associated with, and only to the extent necessary to resolve the conflict or inconsistency. Additional provisions regarding online services or features that appear in the specific agreement for your Eligible Account(s), but that do not appear in this Agreement, will apply.

To illustrate this rule in the preceding paragraph, if your Eligible Account(s) is covered by another agreement and a dispute arises between you and us under that agreement, then the dispute resolution provisions in that other agreement will control and take precedence over the dispute resolution provisions in this Agreement.

As an exception to the general rule described in this Agreement, if any other agreement you have with us includes terms that address your online access to Eligible Account(s) established primarily for personal, family, or household purposes, this Agreement will control and take precedence in resolving any inconsistencies between this Agreement and the terms in the other agreement that address online access.

 

Your Use of the Service

Subject to all the terms and conditions of this Agreement, you may use the Service to access your Eligible Account(s) and perform authorized transactions through the Web site. With respect to your Eligible Account(s), authorized transactions may include obtaining balance information, transaction history, and other information. In some instances, balances and transaction history may reflect activity conducted through only the close of the previous Business Day.

We may, from time to time, introduce new features to the Service or eliminate features from the Service. When this happens, we will update our Web site accordingly.

You agree and understand that you are solely responsible for acquiring and maintaining a computer or other electronic device that can handle and access the Service (including the necessary equipment), and that you are responsible for all costs associated with accessing the Service and your Eligible Account(s).  In order to use the Service, you are required to have Internet Explorer software.

 

Owners and Delegates

If an Eligible Account is owned by more than one person, each owner individually has the right to provide us with instructions, make any decision, obtain any information, or make any request associated with his/her Eligible Account(s). Please refer to the specific agreement(s) for your Eligible Account(s) for more details.

 

Gaining Online Access

You authorize us to provide access to your Eligible Account(s) through the Service. You may access your Eligible Account(s) to obtain information and perform transactions as authorized on the Web site.

To access your Eligible Account(s) through our e-Payments Web site, you must have a username, a password, and the required hardware and software as Windows XP SP2 minimum requirements. You must also comply with any other security procedures and policies we may establish from time to time.

Subject to the terms of this Agreement, you will generally be able to access your Eligible Account(s) through the Web site 7 days a week, 24 hours a day. At certain times, the Service may not be available due to system maintenance or circumstances beyond our control.

You must provide all computer and other equipment, software and services you need to access the Service.

 

Terminating Online Access

1.                 For Violation of the Agreement: If you violate any terms of this Agreement (including the failure to pay fees under any applicable fee schedule), you agree that we may suspend or terminate your access to your Eligible Account(s). We will not be required to reinstate or reactivate your access.

2.                 By Your Own Choice: If you close all your Eligible Accounts or elect to withdraw from the Service, we will suspend or terminate your access. We will not be required to reinstate or reactivate your access.

 

Removal of Online Access

For each Eligible Account, you may request removal of online access by calling customer service at 1.800.843.1552 or e-mailing epayment@bankeasy.com.

 

System Maintenance and e-Payment Service Access

At certain times, the Service may not be available due to system maintenance or circumstances beyond our control.

 

Description of e-Payment Service

E-Payment Service allows you to schedule loan payments through the Service.   Each user who wishes to use the e-Payment Service must enroll in the Service separately.

You authorize us to add Eligible Accounts that are our loan accounts as payees in the e-Payment Service.

There is no limit to the number of payments that may be authorized (except that payments are limited to the total amount available in the Payment Account at the time a payment is made).

The date the e-Payment Service payment begins processing is called the "Origination Date." When we receive payment instructions (for the current or a future date), we will begin processing your payment on the Origination Date. We will send funds to the payee on your behalf from your e-Payment Service Payment Account on the Business Day following the Origination Date.

For bill payments fueled by checking accounts, we may, at our option, pay or refuse to pay the bill payment if it would create an overdraft on your Account, without regard to whether we may have previously established a pattern of honoring or dishonoring overdrafts. We may, without prior notice to you, take any of the following actions, at our sole discretion, if we receive a loan payment drawn against your Payment Account and there are insufficient available funds to cover the Item:

·         Cover the bill payment in accordance with the terms of any written overdraft protection plan that you and we have established;

·         Pay the bill payment and create an overdraft on your checking Account; or

·         Decline the bill payment.

You agree to pay our fee(s), which may vary depending on the action we take. Any negative balance on your Account is immediately due and payable (unless we agree otherwise in writing), and you agree to reimburse us for the costs and expenses we incur in recovering the negative balance.

If your e-Payment Service Account closes for any reason, all pending payments associated with the account will be canceled, and it is your sole responsibility to make all pending and future payments.

Liability for Failure to Make Transfers

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 may be liable for your losses or damages. However, there are some exceptions. We will not be liable, for instance, (a) if through no fault of ours, you do not have enough funds available in your Account to complete the transaction; (b) if our computer systems do not operate properly and you knew about the breakdown when you started the transaction; (c) if there is a hold or the funds in the Account are subject to legal process or other encumbrance restricting their use; (d) if we have reason to believe the requested transaction or withdrawal is unauthorized; (e) if circumstances beyond our control (such as fire, flood, terrorist attack, or national emergency) prevent the transaction, despite reasonable precautions that we have taken; (f) if the transaction would violate the terms of this Agreement; or (g) there are other exceptions stated in our Agreement with you.

 

e-Payment Service Stop Payment or Change Instructions

You have the right to stop or change any scheduled bill payment. However, you must cancel a payment within 3 business days by using the payment Service or by calling Customer Service at 1.800.843.1552. Stop payments are not guaranteed. Payments that are in process cannot be canceled or stopped. If we are successful in stopping a payment, it will take up to 2 Business Days for the funds to be credited to your account.

 

Termination of the e-Payment Service

If you have the e-Payment Service and do not schedule or process a payment through the e-Payment Service for a 13-month period, we, at our sole discretion, may terminate your use of the e-Payment Service without prior notice. You agree that you will only use the e-Payment Service to pay bills, and not for any other purpose. Using the e-Payment Service for other, unauthorized purposes may result in termination of your access to the e-Payment Service, at our sole discretion. You must have at least one Eligible Account to use the e-Payment Service. If you close a checking account you must designate a new checking account as the e-Payment Account within 30 days or we may terminate the service without prior approval. If we terminate your use of the e-Payment Service, your online bill payment Service information will be lost and all pending payments will be canceled and are your sole responsibility. If you decide to terminate the e-Payment Service, we strongly suggest that you cancel all future loan payments at the same time that you cancel the e-Payment Service, either by deleting those payments yourself using the e-Payment Service or by calling Customer Service at 1.800.843.1552.  This will ensure that future payments made by you will not be duplicated. We will automatically delete all outstanding payment orders (all individual payments and all recurring payments) once we have been notified that you have terminated the e-Payment Service.

 

Electronic Fund Transfer Provisions

Applicability

The provisions in this Section apply only to electronic fund transfers that debit or credit your checking, savings or other Asset Account(s) and are subject to the Consumer Financial Protection Bureau's Regulation E (an "EFT"). We may, when applicable, rely on any exceptions to the provisions in this Section that are in Regulation E. All terms not defined in this Agreement which are defined in Regulation E will have the same meaning when used in this Section.

 

In Case of Errors or Questions About Account Transactions

If you think your receipt is wrong, or if you need more information about a transaction listed on the periodic loan statement, please contact us as soon as you can by calling 1.800.843.1552 or writing to us at e-Payments, 2220 6th Street, Brookings, SD  57006. We must hear from you no later than sixty (60) days after we made available the first statement (online at the e-Payment Site) on which the problem or error appeared. When notifying us, you must (a) tell us your name, address, and Eligible Account number; (b) describe the error or the transaction you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information; and (c) tell us the dollar amount of the suspected error.

 

If you tell us orally, we may require that you send us your complaint or question in writing within ten (10) business days. We will determine whether an error occurred within ten (10) business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to forty-five (45) days to investigate your complaint or question. If we decide to do this, we will credit your Payment Account within ten (10) business days for the amount you think is in error so that you will have the use of the value during the time it takes us to complete the investigation. If we ask you to put your complaint or question in writing and we do not receive it within ten (10) business days, we may not credit your Account.

For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.

We will tell you the results within three (3) business days after completing our investigation, and we will correct any error promptly. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation

 

Unauthorized Transfers

Tell us AT ONCE if you believe someone has transferred or may transfer value from the Account without your permission. Telephoning 1.800.843.1552 is the best way of keeping your possible losses down, but you may also contact us at epayment@bankeasy.com. You may be liable for unauthorized use of your Account. You will not be liable for unauthorized use that occurs after you notify us, orally or in writing, of the loss, theft, or possible unauthorized use. If you tell us within 2 business days after you learn of the unauthorized use, you can lose no more than fifty dollars ($50) if someone used your Account without your permission. If you do NOT tell us within 2 business days after you learn of the unauthorized use, and we can prove we could have stopped someone from using your online billing Service Account without your permission if you had told us, you could lose as much as five hundred dollars ($500).

 Also, if your statement shows transfers you did not make, tell us at once. If you do not tell us within 60 days after the statement is made available to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us on time. If a good reason (such as long trip or a hospital stay) kept you from telling us, we will extend the time period.

 Notice of Change in Amount

If you authorize a person to regularly debit your Account and the amount varies from the previous amount debited, the person debiting your Account is required to tell you, at least 10 days before each debit, when the debit will be made and how much it will be.

 

Stop Payment of Preauthorized EFTs

You may place a stop payment order on preauthorized EFTs by calling 1.800.843.1552 or e-mail epayment@bankeasy.com at least 3 Business Days prior to the scheduled transfer date. We require your name and the account number associated with the transfer, and the exact (i) name of the payee, (ii) the exact payment amount, and (iii) scheduled transfer date. Failure to provide correct and complete information may make it impossible for us to stop payment of the preauthorized EFT. You agree to indemnify and hold us harmless from and against any loss incurred by us as a result of our paying an EFT if any of the information relied upon in the stop payment order is incorrect or incomplete (or as a result of our not paying a preauthorized EFT for which a valid stop payment order is in effect). If we pay a preauthorized EFT despite a valid stop payment order, we may require you to provide us with an affidavit describing in detail the dispute.

Disclaimer of Warranties

To the fullest extent permitted by law, we make no warranties of any kind for the Service, either express or implied, including but not limited to, implied warranties of merchantability or fitness for a particular purpose. We do not warrant that the Service will be uninterrupted or error free, that defects will be corrected, or that our Web site that makes the Service available is free of viruses or other harmful components.

Limits on our Liability and Obligations to You

In no event will we or any of our officers, directors, shareholders, parents, subsidiaries, affiliates, agents, licensors, or third-party service providers be liable for any consequential (including without limitation, loss of data, files, profit or goodwill or the costs of procurement of substitute goods or service) indirect, incidental, special, or punitive damages, whether in an action under contract, negligence or any other theory, arising out of or in connection with this Agreement, the Service, or the inability to use the Service, even if advised of the possibility of such damages. Some states may prohibit the limitation of liability for consequential or incidental damages. In those states the limitation of liability with respect to consequential or incidental damages (or other damages specified by law in such state) may not apply.

Except as specifically provided in this Agreement or otherwise required by applicable law, we (and our service providers or other agents) will not be liable for:

·         Any loss or liability you may incur resulting in whole or part from any failure or misuse of:

o    Your equipment, or

o    Software provided by an external company such as an Internet browser provider, an Internet access provider, an online service provider, or an agent or subcontractor of any of them, or

·         Any direct, indirect, special, consequential, economic, or other damages arising in any way out of your access to or use of, or failure to obtain access to, the Service.

We will not be obligated to honor, in whole or in part, any transaction or instruction which:

·         Is not in accordance with any term or condition of this Agreement or any other agreement applicable to the relevant Service or Eligible Account;

·         We have reason to believe may not be authorized by you or any other person whose authorization we believe is necessary or involves funds or other property subject to a hold, dispute, restriction, or legal process we believe prevents the transaction or instruction;

·         Would violate:

o    Any applicable provision of any risk control program of the Federal Reserve or the Office of the Comptroller of the Currency, or

o    Any applicable rule or regulation of any other federal or state regulatory authority;

·         Is not in accordance with any other requirement of our policies, procedures, or practices; or

·         We have other reasonable cause not to honor for our or your protection.

In no event will we be liable for any failure of availability or performance due to scheduled system maintenance or circumstances beyond our control (such as power outage, computer virus, system failure, fire, flood, earthquake, or extreme weather).

Your Agreement to Indemnify Us

Except to the extent that we are liable under the terms of this Agreement or another agreement governing the applicable Eligible Account(s), you agree to indemnify, defend, and hold us, our affiliates, officers, directors, employees, consultants, agents, service providers, and licensors harmless from any and all third-party claims, liability, damages, and/or costs (including but not limited to reasonable attorney's fees) arising from:

·        A third-party claim, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or other materials submitted by you to us;

·         Any fraud, manipulation, or other breach of this Agreement;

·         Your violation of any law or rights of a third party; or

·         The provision of the Service or use of the Service by you or any third party.

We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You will not settle any action or claims on our behalf without our prior written consent. This indemnification is provided without regard to whether our claim for indemnification is due to the use of the Service by you or your authorized representative.

Arbitration

PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. UNLESS YOU EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. YOU ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN YOU AND US AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.

 

Agreement to Arbitrate. You and we agree that any Dispute, except as provided below, will be resolved by Arbitration. This agreement is governed by the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq. and the substantive law of the State of South Dakota (without applying its choice-of-law rules).

Arbitration Defined. Arbitration is a means of having an independent third party resolve a Dispute. A  "Dispute" is any controversy or claim between you and us. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the opening of this e-Payment Services Account), based on any legal or equitable theory (tort, contract, or otherwise), and regardless of the type of relief sought (e.g., money, injunctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim based upon marketing or solicitations to open the e-Payment Services Account and the handling of your e-Payment Services Account, whether such Dispute is based on a federal or state constitution, statute, ordinance, regulation, or common law, and including any issue concerning the validity, enforceability, or scope of this arbitration agreement.

For purposes of this arbitration agreement, the terms  "you" and  "your" include any Authorized User and also your heirs, guardian, personal representative, or trustee in bankruptcy. The terms "us,"  "our," and "we" include our employees, officers, directors, attorneys, affiliated companies, predecessors, and assigns, as well as our marketing, servicing, and collection representatives and agents.

Choice of Arbitrator. The party filing an arbitration must choose either of the following arbitration firms for initiating and pursuing an arbitration: the American Arbitration Association or the Judicial Arbitration and Mediation Services.. If you claim you have a Dispute with us, but you do not initiate an arbitration or select an arbitrator, we may do so. You may obtain copies of the current rules of each of the arbitration firms and forms and instructions for initiating an arbitration by contacting them as follows:

 

American Arbitration Association

335 Madison Avenue, Floor 10

New York, NY 10017-4605

Web Site: www.adr.org

 

Judicial Arbitration and Mediation Services

1920 Main Street, Suite 300

Irvine , CA 92614

Web Site: www.jamsadr.com

 

The policies and procedures of the selected arbitration firm will apply provided that these are consistent with this arbitration agreement. To the extent the arbitration firm's rules or procedures are different than the terms of this arbitration agreement, the terms of this agreement will apply.

 

Cost of Arbitration. We will pay the filing fee and any costs or fees charged by the arbitrator regardless of whether you or we initiate the arbitration. Except where otherwise provided by applicable law, each party will be responsible for its own attorneys’ fees and other expenses. Unless prohibited by law, the arbitrator may award fees, costs, and reasonable attorneys’ fees to the party who substantially prevails in the arbitration.

Place of Arbitration. Unless you and we agree to a different location, the arbitration will be held in the same city as the U.S. District Court closest to your then current mailing address.

Waiver of Rights. You are waiving your right to a jury trial, to have a court decide your Dispute, to participate in a class action lawsuit, and to certain discovery and other procedures that are available in a lawsuit. The arbitrator has the ability to award all remedies available by statute, at law, or in equity to the prevailing party, except that you and we agree that the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving the individual disputes between you and us. The validity, effect, and enforceability of this waiver of class action lawsuit and class-wide arbitration are to be determined solely by a court of competent jurisdiction and not by the arbitration firm or arbitrator. If the court refuses to enforce the class-wide arbitration waiver, or if an arbitration firm or arbitrator fails or refuses to enforce the waiver of class-wide arbitration, you and we agree that the Dispute will proceed in court and will be decided by a judge, sitting without a jury, under applicable court rules and procedures.

 

Applicable Law and Judicial Review. The arbitrator will apply applicable federal and South Dakota substantive law and the terms of this Agreement. The arbitrator must apply the terms of this arbitration agreement, including without limitation the waiver of class-wide arbitration. The arbitrator will make written findings, and the arbitrator's award may be filed with any court having jurisdiction. The arbitration award will be supported by substantial evidence and must be consistent with this Agreement and applicable law or may be set aside by a court upon judicial review. Either party may seek judicial review of the arbitrator's decision according to applicable law.

 

Other Provisions. This arbitration provision will survive (i) termination or changes in this Agreement, the e-Payment Services Account, or the relationship between you and us concerning the e-Payment Services Account; (ii) the bankruptcy of any party; and (iii) any transfer, sale, or assignment of your Account, or any amounts owed on your Account, to any other person or entity.

 

Right to Opt Out. If you do not wish your Fishback Financial Account to be subject to this Arbitration Agreement, you must advise us in writing by contacting us at e-Payments, 2220 6th Street, Brookings, SD  57006. Clearly print or type your name and Account number and state that you reject arbitration. You must give written notice, and it is not sufficient to telephone us. Send only your notice to reject arbitration; do not include the notice with other correspondence to us. We must receive your letter at the above address within sixty (60) days after the date this Agreement was provided to you, or your rejection of arbitration will not be effective.

 

Changes to Charges, Fees, or Other Terms

We reserve the right to change the charges, fees, or terms described in this Agreement. When changes are made to any fees, charges, or other material terms, we will update this Agreement and either send a notice to you at the address shown on our records, or send you an electronic mail message (e-mail). The notice will be posted or sent at least thirty (30) days in advance of the effective date of any additional fees for online transactions, or any increase in your responsibility for unauthorized transactions, unless an immediate change is necessary to maintain the security of the system. If such a change is made, and it can be disclosed without jeopardizing the security of the system, we will provide you with electronic or written notice within thirty (30) days after the change. As always, you may choose to accept or decline changes by continuing or discontinuing participation in the online billing. We also reserve the option, in our business judgment, to waive, reduce, or reserve changes or fees in individual situations.

 

Governing Law

This Agreement and your account, and any claim, dispute, or controversy arising from or relating to this Agreement and your Account, are governed by and construed in accordance with the laws of the State of South Dakota (without regard to its conflicts of law rules) and applicable federal law. The legality, enforceability, and interpretation of this Agreement and the amounts contracted for, charged, and received under this Agreement will be governed by such laws.  This Agreement is entered into between you and us in South Dakota.