FNB ONLINE BUSINESS USER AGREEMENT

This Agreement (the “Agreement”) is made between Customer, if more than one, each jointly and severally, and The First National Bank of Santa Fe (hereinafter called “First National”) for the use and delivery of FNB Online Services for business purposes as described below. Many terms used in this Agreement are defined in Section 13 of this Agreement.

1. FNB Online Services.

Description of Services

FNB Online permits Customer’s Authorized User(s) to access and use the Services subject to the terms and conditions of this Agreement and the Links and any other agreement between First National and Customer relating to the Services, including, but not limited to, any and all Account Agreements, Deposit Agreements, Loan Documents and ACH Agreements all of which are incorporated herein by reference.

The FNB Online Services available to Customer’s Authorized Users are listed below and are described in detail at Business Services.

Basic Services

• Account Inquiry
• Account Information Downloading
• Transfers between Accounts at First National
• Stop Payment Requests and Orders
• Loan Advances
• Loan Payments

Commercial Services

• ACH Credit Origination
• ACH Debit Origination
• Treasury Tax and Loan Payments
• Wire Transfer Requests

Upon the Effective Date, Customer’s Authorized Users shall have automatic access to the Basic Services for all accounts using the Tax Identification Number assigned to the first Account listed by Customer in the Activation Card submitted by Customer. Access for additional Accounts may be obtained through the Add Accounts Link. In addition to the Basic Services, Customer’s Authorized Users shall have access to those Business Services selected by Customer’s Authorized User using the Selection of Commercial Services.

2. Limitations Regarding Use of Services

Access to, and use of, FNB Online is strictly limited to the Authorized Users of First National Customers. Use of FNB Online is permitted only for bona fide banking purposes in accordance with terms and conditions of authenticated agreements between Customer and First National and applicable laws, rules and regulations.

Customer authorizes First National to monitor Customer’s FNB Online usage and transactions for First National’s security purposes without further notice or authorization. First National must report any detected suspicious activity to appropriate law enforcement agencies.

First National may, but is not obligated to, reject any request transmitted via FNB Online if the request is incomplete, inaccurate in any respect, or if the request involves a transfer of funds from an Account in which there are insufficient available funds to satisfy the request on the designated effective date. If First National, at its sole option, chooses to honor a transfer request for which Customer has insufficient collected funds in the affected Account, Customer shall pay First National immediately upon demand any overdraft amounts, together with any and all overdraft fees and charges that may be assessed in accordance with the Deposit Agreement or any other agreement between Customer and First National.

If FNB Online is utilized before or after banking hours First National will not be available for live support. Click on Holiday and Closures page for a list of scheduled holidays and closures.

First National may temporarily or permanently revoke access, in its discretion, at any time if (a) Customer or Customer’s Authorized User(s) violate any term of this Agreement or any other agreement with First National; (b) First National reasonably believes that continued access would pose a security risk to First National.

3. System Requirements.

Customer shall comply with the FNB Online System Requirements. For a description of the minimum hardware, software and connectivity requirements, please click on System Requirements.

4. Customer’s Responsibilities.

Customer is solely responsible for the timeliness, accuracy and completeness of any instruction and information entered by Customer’s Authorized User(s) in connection with any FNB Online transaction.

Customer shall read the description of the Services on the Business Services page and carefully select the Services Customer desires.

Security for FNB Online transactions is provided exclusively by the use of Passwords and User IDs. The establishment and maintenance of these security measures are in the exclusive control of Customer and are Customer’s sole responsibility. The use of Customer’s Password(s) or User ID(s) shall have the same effect as Customer’s signature authorizing the transaction. Customer is responsible for any transaction made by any of Customer’s Authorized Users. The risk of improper use of Passwords or User IDs shall be borne entirely by Customer. First National is not liable for misuse of Passwords or User IDs or any other failure of Customer’s security measures or for any losses that may result.

Customer, and Customer’s Authorized User(s), shall not make any Password(s) or User ID(s) available to any non-authorized persons.

FNB Online automatically identifies the first Authorized User to access FNB Online on behalf of Customer as the Administrator. The Administrator shall have the exclusive ability to designate Authorized Users and to select Services to which each Authorized User has access. Only the Administrator can change the identity of the Administrator without First National’s intervention. Therefore, Customer should choose its Administrator with care.

WARNING: CUSTOMER IS THE ONLY PERSON WHO CAN ASSURE THE SECURITY OF CUSTOMER’S USER ID AND PASSWORD. CUSTOMER SHOULD CAREFULLY PROTECT CUSTOMER’S USER ID AND PASSWORD. ANY PERSON WHO POSSESSES CUSTOMER’S USER ID AND PASSWORD IS AN AUTHORIZED USER WITH POTENTIALLY UNLIMITED AND COMPLETE ACCESS TO CUSTOMER’S ACCOUNTS AND INFORMATION. FIRST NATIONAL SHALL HAVE NO LIABILITY FOR THE ACTIONS OF ANY AUTHORIZED USER.

WARNING: NOTWITHSTANDING ANY INSTRUCTIONS OR AGREEMENTS THAT REQUIRE TWO OR MORE SIGNATURES TO ACCESS CUSTOMER’S ACCOUNT(S), ANY ONE AUTHORIZED USER WILL HAVE ACCESS TO THAT ACCOUNT THROUGH FNB ONLINE IF CUSTOMER GRANTS ACCESS TO THE AUTHORIZED USER(S).

5. Fees.

In exchange for access to and use of FNB Online, Customer agrees to pay the fees described at the Business Accounts Fee Schedule page. Customer hereby authorizes First National to automatically deduct such fees from Customer’s Account. Fees may be changed by First National, unilaterally, 30 day’s after notice of the proposed change is provided in accordance with Section 12 of this Agreement. The fees described at the Business Accounts Fee Schedule Link relate only to FNB Online and are in addition to any fees that Customer may currently pay for other services.

6. Warranties.

First National warrants that it will provide FNB Online services in a commercially reasonable manner in substantial conformity with this Agreement. This warranty is subject to, and limited by, the provisions of this Section 6 and Section 7 below.

First National’s warranty does not apply to defects, problems or failures caused by Customer’s nonperformance of obligations essential to First National’s performance of its obligations and/or defects, problems or failures caused by an event beyond First National’s control, including, but not limited to those events described in Section 14 of this Agreement.

FIRST NATIONAL DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT FIRST NATIONAL KNOWS OR HAS REASON TO KNOW OR HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ALLEGED TO ARISE BY LAW OR BY REASON OF CUSTOM OR USAGE IN THE INDUSTRY OR BY COURSE OF DEALING. IN ADDITION, FIRST NATIONAL DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.

Customer understands and agrees that use of, or connection to, the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Customer’s computer systems, networks, and any and all information stored therein. Customer understands that the technical processing and transmission of the Services, including Customer’s User ID and Password, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. All information transmitted and received through the Internet is subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. First National shall not be responsible for any adverse consequences whatsoever of Customer’s connection to, or use of, the Internet, and shall not be responsible for any use by Customer of an Internet connection in violation of any law, rule, or regulation or any violation of the intellectual property rights of another.

First National does not represent or warrant that FNB Online will be continuous or uninterrupted. First National disclaims any liability for interruptions in service.

7. Limitation of Liability and Damages – Limitation of Action.

First National shall not be liable for any damages whatsoever related in any way to a failure of any communications network or FNB Online. First National’s sole and exclusive liability for damages for any cause whatsoever and regardless of the form of action shall be limited to direct damages sustained by Customer, but only to the extent that such damages are the direct and immediate result of First National’s gross negligence or willful misconduct. First National shall not be liable for any special, indirect, incidental, consequential or punitive damages, even if First National is advised of the possibility of such damages. The agreements of Customer contained in this section are material inducements to First National. First National would not provide FNB Online to Customer in the absence of these Agreements.

Any claim for damages against First National must be asserted within one year after the occurrence of the action or event giving rise to the claim, whether or not that action was immediately discovered.

8. Indemnification.

Customer shall defend, indemnify, and hold First National Indemnitees harmless against, any and all claims of any type, nature or kind asserted against First National Indemnitees, whether formally or informally, including but not limited to claims arising from (a) Customer’s alleged acts or omissions; (b) Customer’s violation of any provision of this Agreement; (c) the data, information and/or instructions furnished by Customer and any inaccuracy or inadequacy thereof; and (d) any claim of economic loss or damage to any third party from use of the services by Customer hereunder.

First National Indemnitees shall provide Customer with notice, in accordance with Section 12 of this Agreement, of any claim falling within Customer’s obligation under this section. Upon receipt of such notice, Customer shall be obligated to immediately and fully defend First National Indemnitees against such claim. First National Indemnitees shall cooperate fully with, and assist Customer in, the defense of such claim and in all reasonable respects. Customer shall keep First National Indemnitees fully apprised at all times of the status of the defense. Notwithstanding the foregoing, First National Indemnitees shall have the right to employ their own separate legal counsel in any such action, but the fees and expenses of such separate legal counsel shall be at the expense of First National Indemnitees. No claim shall be settled without First National Indemnitees’ express, written, consent. Until First National Indemnitees receive notice from Customer as provided in Section 12 of this Agreement, that Customer will timely and fully defend First National Indemnitees, and Customer assumes such a defense, First National Indemnitees may, at any time after 10 days after the date notice of the claim is given to Customer, resist or otherwise defend the claim or settle or otherwise compromise and pay the claim without Customer’s consent without relieving Customer of Customer’s indemnification obligation under this Agreement. Customer shall pay all costs of indemnity arising out of, or related to, that defense and any such settlement, compromise or payment. Following indemnification as provided in this section, Customer shall be subrogated to the rights of First National Indemnitees with respect to the matters for which indemnification has been made.

9. Links.

The Links are integral parts of this Agreement and are incorporated herein by reference. First National may unilaterally amend the Links from time to time (except with reference to the Customer’s selection of services). Amendments shall be effective and binding 30 days after First National provides notice of the amendment as provided in Section 12 of this Agreement.

10. Default and Remedies.

Default by Customer. Customer shall be in default if Customer violates any term or condition of this Agreement, including the Links and Schedules, or if First National reasonably determines that the activity of Customer or Customer’s Authorized Users create an undue risk to First National or FNB Online. Upon Customer’s default, First National may, without notice or demand, terminate this Agreement and take such action at law or equity as First National, in its sole discretion, deems necessary and appropriate to address the default.
Default by First National. First National will be in default if the First National violates any term or condition of this Agreement. In the event of default by First National, Customer’s remedies are limited as set forth in Section 7 above.

11. Termination.

Automatic Termination. This Agreement will automatically be terminated (a) as to any Account when that Account is closed by Customer or First National; and (b) if Customer withdraws Customer’s consent under Section 15 below.

Termination by Customer or First National. Either Customer or First National may terminate this Agreement at any time upon 3 days prior notice complying with the requirements of Section 12 of this Agreement.

Termination by Customer. Customer may, without incurring liability, terminate this Agreement upon 3 days notice if First National defaults in its obligations under this Agreement.

Termination by First National. First National may terminate this Agreement immediately if Customer defaults in its obligations under this Agreement or any other Agreement between First National and Customer or if First National reasonably believes that activity by Customer or Customer’s Authorized Users may create an undue risk to First National or FNB Online.

12. Notices.

Except as otherwise expressly provided herein, First National shall not be required to act on any notice or instruction received from Customer or any other person, or to provide any notice to Customer or anyone else with respect to any matter. First National shall be entitled to rely on any written, including electronically transmitted, notice or other communication that First National believes, in good faith, to be genuine and to have been signed or authorized by any director, partner, officer, employee, or agent of Customer, whether or not actually authorized by Customer, any such communication will be deemed to have been duly executed by Customer. Any required notice shall be given in writing authenticated by the party giving notice or an authorized representative of the party giving notice. Any notice sent shall be effective as follows:

A. If transmitted electronically – the first business day after the notice is given either by e-mail or if by First National, by broadcast message to FNB Online Customers:
B. If by first class mail – 5 days after the date notice is placed in the mail;
C. If by nationally recognized and reliable courier service – when received by the party to whom notice is directed; and
D. Notice SHALL NOT be given to First National by facsimile transmission.

Addresses for any required notice shall be as follows:

First National:
By First Class Mail:

The First National Bank of Santa Fe
Attention: FNB Online Product Manager
P.O. Box 609
Santa Fe, New Mexico 87504-0609

By e-mail: inquire@1stnationalbanknm.com

By Delivery:
The First National Bank of Santa Fe
Attention: FNB Online Product Manager
2020 Rosina Street
Santa Fe, New Mexico 87501

The Customer:
By First Class Mail or Delivery:
At the address designated by Customer for notice in a notice provided to First National in accordance with this Section 12, or at Customer’s address associated with any Account,
E-mail: At Customer’s e-mail address associated with FNB Online.

Addresses for notice may be modified by written notice complying with this section.

13. Definitions.

For purposes of this Agreement and the Links, the following terms shall be given the following meanings set forth below.

" Account" means those accounts owned by Customer and maintained at First National identified by Customer in the authorization card submitted by Customer to First National or identified by Customer at the Add Accounts Link.

" Agreement" means this document, as amended from time to time and all agreements and Links incorporated herein by reference.

" Authorized User(s)" shall mean those individuals who access FNB Online using Customer’s Password(s) and User ID(s).

“ First National” means The First National Bank of Santa Fe.

“ First National Indemnitees” means First National, its directors, officers, shareholders, employees, agents, its parent and its subsidiaries.

“ Customer” means the persons or entities authenticating this Agreement, jointly and severally if more than one, and the owner of deposit Accounts or Borrower in connection with Loan Accounts.

“ Deposit Agreement” means the brochure entitled “Your Deposit Account” which contains “Terms and Conditions of Your Account” and various disclosures.

“ Effective Date” means the date, after Customer submits Customer’s Activation Card to First National, when First National provides access under this Agreement.

“ FNB Online” is an Internet application, consisting of proprietary software and third-party software and services that allows Authorized User(s) to electronically access and process business financial transactions using a computer.

“ Link” means bookmarks to move a user from one location in the user agreement to another using the Internet; as such Links may be amended by First National unilaterally, and without prior notice, from time to time. The Links are integral parts of this Agreement.

14. Miscellaneous.

Entire Agreement - Amendment. This Agreement, including the Links, and any agreement incorporated herein by reference or applicable to any Account or Loan Account, constitute the complete and exclusive statement of agreement between the Customer and First National regarding the subject matter hereof and supersede any prior agreement regarding the subject matter of this Agreement. This Agreement may only be modified or amended in writing authenticated by First National and Customer.

Severability. If any provision of this Agreement is invalid or unenforceable, the remainder of this Agreement shall be unaffected and each provision shall be valid and enforced to the fullest extent permitted by law.

Construction/Interpretation. First National and Customer each acknowledge that the limitations and exclusions contained in this Agreement represent the parties’ voluntary agreement based upon the level of risk to Customer and First National associated with their respective obligations under this Agreement. Customer and First National agree that the terms and conditions of this Agreement shall not be construed in favor of, or against, any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.
Headings are used for reference purposes only and shall not be deemed a part of this Agreement.

Compliance with Law. If the performance of the Services provided for herein in accordance with the terms of this Agreement would result in a violation of any existing or future law, rule, or regulation to which First National or Customer is subject, then this Agreement will be deemed amended to the extent necessary to comply with that law, rule or regulation, and the First National and Customer shall incur no liability as a result of such amendment.

Applicable Law – Jurisdiction and Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of New Mexico. Customer consents to personal jurisdiction and venue in the First Judicial District Court in Santa Fe County, New Mexico.
No Third-Party Beneficiary. Customer and First National each intend that this Agreement shall not benefit, or create any right or cause of action in, or on behalf of, any person or entity other than Customer and First National.

Relationship of the Parties. The performance by First National of its duties and obligations under this Agreement shall be that of an independent contractor and nothing contained in this Agreement shall create or imply an agency relationship between Customer and First National nor shall this Agreement be deemed to constitute a joint venture or partnership between Customer and First National.

Attorneys Fees and Costs. If it is necessary for Customer or First National to engage the services of an attorney to enforce any term or condition of this Agreement, or any agreement incorporated herein by reference, the prevailing party shall be entitled to costs, attorney’s fees actually incurred and necessary disbursements incurred in connection with such legal action.
Assignment. This Agreement may not be assigned by Customer by operation of law or otherwise, without the prior written consent of First National. First National may assign this Agreement to an affiliate or successor financial institution so long as the affiliate or successor financial institution is required to comply with all terms and conditions of this Agreement. First National may freely assign this Agreement in connection with a merger, corporate reorganization or sale of all, or substantially all, of its assets, stocks or securities.

Waiver. No delay or omission by Customer or First National in the exercise any right or power under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any violation of this Agreement shall not be construed to be a waiver of any other violation of this Agreement. All waivers must be made in writing signed by the party waiving its rights.

Force Majeure. Notwithstanding any provision contained in this Agreement, neither Customer nor First National shall be liable to the other to the extent that fulfillment of performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; terrorism; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes, electrical equipment or availability failures; telecommunications equipment or availability failures; data processing equipment or availability failures; fires; floods; acts of God; federal, state or municipal actions; statute ordinances or regulations; or, without limiting the foregoing any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether the class of causes is enumerated herein or not. This provision shall not apply to the payment of any sums due under this Agreement by either party to the other.

Disclosures. Disclosures are made when Accounts are opened; and from time to time with statements.

15. Electronic Signature Act Disclosure and Affirmative Consent.

CONSENT

If this Agreement is being delivered to Customer electronically, then any one Customer’s electronic acknowledgement of this Agreement shall evidence that (a) Customer has read and understood this Agreement; (b) Customer agrees to all terms and conditions of this Agreement; (c) Customer affirmatively consents to electronic delivery of all disclosures contained herein in accordance with the Electronic Signatures in Global and National Commerce Act; and (d) Customer affirmatively consents to the use of electronic records throughout FNB Online in accordance with the Electronic Signatures in Global and National Commerce Act; and (e) customer has not withdrawn the consent contained in this subparagraph.

DISCLOSURES

Withdrawal of Consent

Customer has the right to withdraw the Customer’s consent to having this Agreement provided or made available in an electronic form however, upon the withdrawal of such consent, Customer’s access to FNB Online will be terminated. Customer also consents to the use of electronic records throughout FNB Online.

To withdraw consent, Customer must provide notice to First National in accordance with Section 12 of this Agreement and immediately discontinue use of FNB Online. To update information needed to contact Customer electronically, Customer must provide notice to First National in accordance with Section 12 of this Agreement.

Right to Paper Copy

Customer has the right to have this Agreement provided or made available on paper or in a non-electronic form. Customer may, upon request, obtain a paper copy of this Agreement or any other electronic record by submitting such request to First National in accordance with the provisions of Section 12 of this Agreement.

WHEN CUSTOMER ENTERS CUSTOMER’S NAME IN THE BLANK PROVIDED BELOW AND CLICKS ON THE “I AGREE” BUTTON, CUSTOMER IS PROVIDING CONSENT AS DESCRIBED ABOVE AND IS SIGNING THIS AGREEMENT.

The person clicking on “I Agree” below represents and warrants to The First National Bank of Santa Fe that he or she is an authorized representative of Customer; that he or she can, and by his or her action of clicking on “I Agree” shall, bind Customer to the terms and conditions of this Agreement; and that he or she has, on behalf of Customer, carefully read and has understood all of the terms and conditions contained in this Agreement and the agreements incorporated herein by reference.