Online Banking Terms and Conditions

PLEASE REVIEW OUR CONSENT TO USE ELECTRONIC RECORDS AND SIGNATURES AND TERMS OF SERVICE FOR ONLINE BANKING.

BY CHECKING THE BOX OR BUTTON BELOW, YOU ARE CONFIRMING THAT YOU HAVE RECEIVED, REVIEWED AND AGREE TO THE CONSENT TO USE ELECTRONIC RECORDS AND SIGNATURES.

BY CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU ARE CONFIRMING THAT YOU HAVE RECEIVED, REVIEWED AND AGREE TO THE SIMMONS BANK TERMS OF SERVICE FOR ONLINE BANKING. THE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, WAIVER OF CLASS ACTION REQUIREMENT, LIMITATIONS ON DIRECT AND INDIRECT DAMAGES, AND A WAIVER OF THE PARTIES TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON CLAIMS UNDER THE TERMS OF SERVICE. YOU ARE ALSO ACKNOWLEDGING RECEIPT OF OUR PRIVACY POLICY.

YOU MAY ALWAYS ACCESS A COPY OF THE TERMS OF SERVICE BY CLICKING ON “USER AGREEMENTS” UNDER “SETTINGS” IN SIMMONS ONLINE BANKING. YOU MAY ALWAYS ACCESS A COPY OF THE CONSENT TO USE ELECTRONIC RECORDS AND SIGNATURES BY VISITING https://www.simmonsbank.com/e-sign-consent-and-disclosure.

 

 SIMMONS BANK

TERMS OF SERVICE FOR SIMMONS ONLINE BANKING

Revision November 12, 2024

PLEASE READ THESE SIMMONS BANK TERMS OF SERVICE FOR ONLINE BANKING (THIS “AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT OR ACCESSING SIMMONS BANK ONLINE BANKING SERVICES, YOU ACKNOWLEDGE AND AGREE THAT THE FOLLOWING TERMS AND CONDITIONS WILL APPLY TO AND GOVERN YOUR USE OF THE ONLINE BANKING SERVICES OFFERED BY SIMMONS BANK, AN ARKANSAS STATE BANK (“SIMMONS BANK”, “BANK”, “US”, OR “WE”); THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THE AGREEMENT; AND THAT THESE TERMS AND CONDITIONS CONSTITUTE A VALID AND BINDING LEGAL CONTRACT BETWEEN YOU AND THE BANK. IN THIS AGREEMENT, “YOU” AND “YOUR” REFER TO THE SIMMONS BANK ACCOUNT HOLDER AND/OR SIMMONS ONLINE BANKING USER WHO HAS ENROLLED IN SIMMONS ONLINE BANKING. IF YOU ARE ACCESSING SIMMONS ONLINE BANKING IN YOUR CAPACITY AS AN AGENT OR AUTHORIZED REPRESENTATIVE OF ANOTHER PERSON OR ENTITY, THEN YOU ARE ENTERING INTO THIS AGREEMENT BOTH IN YOUR OWN INDIVIDUAL CAPACITY AND ON BEHALF OF SUCH OTHER PERSON OR ENTITY, IN YOUR CAPACITY AS AN AGENT OR AUTHORIZED REPRESENTATIVE ON BEHALF OF SUCH PARTY.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION, WAIVER OF CLASS ACTIONS REQUIREMENT, LIMITATIONS ON DIRECT AND INDIRECT DAMAGES, AND A WAIVER OF THE PARTIES TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON CLAIMS UNDER THIS AGREEMENT.

You acknowledge and agree that your use of the Online Banking Services is subject to the JH Digital Banking Terms of Use (“JH Terms of Use”), attached hereto as Exhibit A, which is incorporated into this Agreement by reference. You understand and agree that use of the Online Banking Services requires your acceptance and compliance with the JH Terms of Use.

If you have questions about the Agreement or its terms and conditions, please contact us at (866) 246-2400.

1. INTRODUCTION

This Agreement between you (referred to as “you” or “Customer”) and Simmons Bank (referred to as “Simmons”, “Simmons Bank”, “us” or “we”, and including any affiliate or direct or indirect subsidiary of Simmons when any of them have established an Account or provide an Online Banking Service) governs your use of an electronic service provided by or on behalf of the Bank that permits you to access certain financial services or Account information through the Internet by use of a personal computing device and/or mobile application (“Mobile App”), as applicable (referred to throughout the remainder of the Agreement collectively as “Simmons Online Banking”).You will be responsible for all third party costs, including those related to your wireless provider, that result from or arise out of your use of Simmons Online Banking. You agree that if you continue to use Simmons Online Banking after we notify you of any change either to the services or to this Agreement, you thereby accept such changes and agree to be bound by this Agreement, as amended.

You are responsible for providing your own access to the Internet through the Internet service provider of your choice.  The terms and conditions of this Agreement are in addition to, and shall supplement, the terms, conditions, laws, rules and regulations that apply to any of your existing Simmons Bank Accounts or services of the Bank which you currently use. To use Simmons Online Banking, you must be at least 18 years old and be a resident of the United States.

 

2. DEFINITIONS

In addition to those terms that are defined in other sections of this Agreement, the following terms used in this Agreement shall have the following meanings:

“Account” – Any account at Simmons Bank of which you are the owner (for asset accounts and prepaid cards), borrower or cardholder (for loans, lines of credit and credit cards) (or, for business or commercial accounts only, an authorized signer or otherwise authorized to access Simmons Online Banking on behalf of the Account owner) and for which Simmons offers Online Banking Services. We may refer to any of these persons in this Agreement as an “owner.”  For Transactions conducted using Simmons Online Banking, “Account” may mean an account of the type referred to by Simmons Bank as a demand deposit, NOW, statement savings, money market account, investment products, securities accounts, brokerage accounts, CD, IRA, credit card, prepaid card, loan or line of credit, which may be offered by Simmons Bank.

“Account Documentation” – The relevant deposit agreement, card agreement, loan agreement, or other terms and conditions governing your Account or card, together with any disclosures, fee schedules, and other information related to your Account or card, as each may be modified from time to time.

“Business Day” – Any calendar day other than Saturday, Sunday, or any banking holiday observed by Simmons Bank, which will generally be any day other than a Saturday or a Sunday on which the Federal Reserve Bank of St. Louis is closed for business.

“Business Day Cut-Off Time” – The latest time on any Business Day at which Simmons Bank will accept a Transaction through Simmons Online Banking for same-day ledger posting to the affected Simmons Bank Account or Accounts.

“External Account” – A deposit account at another financial institution for which you have the authority to transfer funds.

“Online Banking Services” – The services offered by Simmons Bank through Simmons Online Banking, described in Section 3, below.

“Password” – A unique code which is to be known only to each Simmons Online Banking customer, initially assigned to each customer by the Bank but thereafter to be selected by the customer. Each customer must use their unique Simmons Online Banking Password and ID to obtain Account information and perform Transactions through Simmons Online Banking.

“Rules” – Simmons Bank’s rules and regulations for its accounts, including those rules about the use of Simmons Online Banking and those about Electronic Funds Transfer Services.

“Simmons Bank Bill Payment” – Refers to the optional electronic bill payment service offered by Simmons Bank through Simmons Online Banking. References to “Online Banking Services” include, among other services, Simmons Bank Bill Payment.

“Transaction” – A debit or credit to an Account, including, but not limited to, a withdrawal, deposit, transfer, payment, or purchase.

 

3. ABOUT SIMMONS ONLINE BANKING.

Simmons Online Banking consists of an online banking website and an application for a mobile device that provide you and other Simmons Online Banking users with various financial services provided by Simmons Bank. The services offered through Simmons Online Banking, and the types of Accounts you may access and manage using Simmons Online Banking, may be updated or changed by Simmons Bank at any time, in its sole discretion.   The specific Online Banking Services offered with respect to any Account may vary.  You may determine which of your Accounts are eligible Accounts, and the Online Banking Services available for those Accounts, by accessing Simmons Online Banking. Depending on the Account, the Online Banking Services may allow you to, among other things, place stop payments, review your current and historical Account information, transfer funds between your Accounts, initiate external transfers, make eligible one-time and recurring credit card payments, initiate bill payments through Simmons Bank Bill Payment, activate your cards, manage your cards, and/or make deposits through Mobile Deposit Services.The availability of each type of information or financial service to you is dependent upon the type or types of Simmons Bank Accounts you maintain, the extent to which you have identified each of your Accounts on Simmons Online Banking, the extent to which Simmons Bank offers a particular service with respect to an Account, and any applicable statutory or regulatory limitations. The use of Simmons Online Banking does not affect the applicable minimum balance requirements of, monthly service charge fees of, or rates of interest payable on, any Simmons Bank Account.

Except for eStatements (described below), any Transaction histories, Account balances, payments, and other information we provide to you through the Online Banking Services are provided as a courtesy and for your convenience only.  Information and data concerning Transaction histories, Account balances, payments and other information may be posted after a delay or may not be final.  In the event of a conflict, the information in your official periodic statement (including any eStatement) will control.

 

4. BETA SERVICES.

Simmons Bank may from time to time in its sole discretion make available to you certain beta or prototype offerings on or through Simmons Online Banking (“Beta Services”). You acknowledge and agree that your use of any such Beta Services is at your own risk and that all Beta Services are provided on a strictly as-is basis with all faults. You shall remain solely responsible and liable for your use of any such Beta Services and for any loss or damages resulting therefrom. You hereby waive and release Simmons Bank from any and all claims relating to or arising from your use of the Beta Services provided hereunder. SIMMONS BANK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE BETA SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SIMMONS BANK DOES NOT MAY ANY GUARANTEE THAT THE BETA SERVICES WILL PERFORM IN ANY PARTICULAR MANNER OR THAT THEY WILL BE UNINTERRUPTED, SECURE OR PERFORM AS INTENDED.

 

5. SERVICE AVAILABILITY.

Simmons Online Banking is intended to be available each day of the year. However, it is necessary to interrupt service from time to time to perform periodic system and account maintenance. The maintenance periods may vary by geographic region due to different time zones. During these periods, customers generally will be notified of the maintenance activities by an information screen that is displayed when attempting to access Simmons Online Banking. Unforeseen technical difficulties may also interrupt service. The Bank is not responsible for account or payment deficiencies or other issues due to Simmons Online Banking system outages or interruptions.

 

6. INTERNET SECURITY INFORMATION.

From time to time, there may be security notices posted on Simmons Bank’s general website or the Simmons Online Banking website regarding security issues. It is your responsibility to read all applicable notices. One of the main security features guarding the use of Simmons Online Banking is the unique combination of your Simmons Online Banking ID and Password. It is important that you protect the security of your Simmons Online Banking ID and Password by keeping them secret. No one at Simmons Bank has access to the Password associated with your Accounts. It is important that you DO NOT SHARE YOUR PASSWORD WITH ANYONE FOR ANY REASON. No one at Simmons bank will know or need to know your Password, and Simmons Bank employees will never ask for your Password. Simmons Bank may, in its sole discretion, require additional or different security features and procedures from time to time.  By entering into this Agreement and using Simmons Online Banking, you agree to protect the security of your Simmons Online Banking ID, Simmons Online Banking Password, and any other numbers, codes, marks, signs, keys, or other means of identification of you as a Simmons Online Banking user which may be devised or established from time to time.

Simmons Bank reserves the right to block your access to Simmons Online Banking to maintain or restore security to the Bank’s account information and data processing systems if the Bank reasonably believes your means of identification as a Simmons Online Banking user (including, but not limited to, your Simmons Online Banking Password, ID, or other Simmons Online Banking access codes) have been or may be obtained or are being used or may be used by an unauthorized person or persons. Except as otherwise required by Regulation E or other applicable law, you are liable and responsible for all Transactions made through Simmons Online Banking using your means of identification, whether those Transactions are made by you or any person you authorize, permit or enable to have your means of identification (even if the person exceeds your authority), or by any person who obtains through you, by whatever means, your means of identification. If you have given someone your means of identification and wish to terminate their authority, or if you know or believe that your means of identification has been or is otherwise compromised, you must notify the Bank immediately so that the Bank can take the necessary steps to change the means of identification. You agree to defend, hold harmless, and indemnify the Bank from and against any and all claims of any nature arising out of any such access by a person you have authorized, permitted or enabled to have access to your Simmons Bank Accounts via Simmons Online Banking or, subject to limitations described elsewhere in this Agreement or as provided in applicable law or system rules, any persons that obtain your means of identification (other than through the Bank’s negligence), including any person who obtains through you, by whatever means, your means of identification.

 

7. REGISTRATION PROCESS.

In order to obtain and use Simmons Online Banking, you must complete our initial registration process. The Simmons Online Banking registration process involves completing an application including information we will need to make Simmons Online Banking available to you. The Bank may verify the information you submit on the application for accuracy and authorization to access your Accounts. As part of this verification process, we may, and you authorize us to, verify your identity by obtaining information about your credit history from a consumer reporting agency. If we verify your identity in this way, Simmons Bank and our service provider will obtain and use your credit information only in accordance with the Fair Credit Reporting Act (“FCRA”) and other applicable laws. We reserve the right to deny you access to Simmons Online Banking if we cannot verify your identity or other necessary information. We may approve or decline your application for Simmons Online Banking based upon our review of your credit report, along with other information we deem relevant. If we deny your request to use Simmons Online Banking, you may obtain a free copy of the credit report that we used (if applicable) from the consumer reporting agency that issued the report.

In addition to the right to obtain a credit report, Simmons Bank and our service providers reserve the right to obtain such additional information as we deem reasonably necessary to ensure that you, or persons to whom you may transfer funds, are not using the Simmons Online Banking service in violation of law, including, but not limited to, laws, rules, and regulations designed to prevent money laundering or the transfer of funds to or from persons or organizations whose accounts are blocked under regulations of the Office of Foreign Asset Control (“OFAC”) of the United States Treasury Department.

 

8. LOG-ON SECURITY.

As noted in Section 6 of this Agreement, security is very important to Simmons Online Banking. Prior to activation of your Simmons Online Banking service, Simmons Bank will verify your identity and authorization to obtain information and conduct Transactions on the Accounts you have requested us to include in your Simmons Online Banking service. You may receive a unique Simmons Online Banking ID and Simmons Online Banking Password from us or establish a Simmons Online Banking ID and Simmons Online Banking Password during enrollment. After your initial sign-on to Simmons Online Banking, you may be prompted by Simmons Online Banking to change your Password.  We may, at our option and in our sole discretion, require you to take additional steps to authenticate yourself, or use additional tools or devices, in order to access the Online Banking Services.

To help prevent unauthorized access to Simmons Online Banking and ensure the security of your Accounts, we may end your Simmons Online Banking online session if we have detected no activity for a short period of time (e.g., ten (10) minutes).

Because your Simmons Online Banking ID and Simmons Online Banking Password and/or passcode, and any other security or access device or tool we provide, is used to access your Accounts, you should treat them as you would any other sensitive personal data. You should carefully select a Simmons Online Banking Password and passcode that is difficult to guess. Keep your Simmons Online Banking Password and passcode safe. You may change your password and passcode from the applicable menu function at any time as often as you like after you log on to Simmons Online Banking.

You are responsible for (i) maintaining the confidentiality and security of all devices you use to access Simmons Online Banking, your Simmons Online Banking ID and Simmons Online Banking Password, any security question(s) and associated answer(s), Account number(s), and any other security or access information, used by you to access or use Simmons Online Banking (collectively, "Access Information"), and (ii) preventing unauthorized access to or use of the information, files or data that you store, transmit or use in or with the Online Banking Services. You will be responsible for all electronic communications, including image transmissions, text message, email and other data ("Communications") entered using the Access Information. Any Communications received through the use of the Access Information will be deemed to be sent or authorized by you. You agree to immediately notify Simmons Bank if you become aware of any loss, theft or unauthorized use of any Access Information, including your mobile devices. Simmons Bank reserves the right to deny you access to the Online Banking Services (or any part thereof) if Simmons Bank believes that any loss, theft or unauthorized use of Access Information has occurred.

 

9. ACCOUNTS.

You may access one or more Account(s) of which you are either an owner or, for business or commercial Accounts only, an authorized signer or otherwise authorized to access Simmons Online Banking on behalf of the Account owner, through Simmons Online Banking. If you desire services that allow you to initiate payments or transfers from the Account, you will need required withdrawal authority over the Account to be able to complete the Transaction. By using Simmons Online Banking, you agree to maintain one or more Accounts with us and to keep sufficient balances in your Account or Accounts to cover any Transactions and fees that are ultimately approved by or related to Simmons Online Banking. If an Account included in your Simmons Online Banking access is jointly held or has multiple signers, you agree that any and all use of your Simmons Online Banking ID and Password to obtain information concerning the Account and initiate Transactions on the Account is authorized, unless we have been notified (and have had a reasonable opportunity to act upon such notification) to cancel your Simmons Online Banking service in writing or to remove the jointly held or multiple signer Account from the Simmons Online Banking service.

When you instruct Simmons Bank to transfer funds between or among your Accounts through Simmons Online Banking, you authorize the Bank to withdraw the necessary funds from the Account you designate. As with any funds transfer request, whether or not utilizing Simmons Online Banking, you agree that you will instruct the Bank to make a withdrawal only when a sufficient balance is or will be available in your designated Account at the time of the withdrawal. Simmons Bank will not be obligated to act on any withdrawal instruction from you if sufficient funds, including any overdraft lines of credit previously established for you, are not available in the Account you designate.

If you use Simmons Online Banking to access an Account that requires more than one signature to authorize an Electronic Funds Transfer or to write a check or complete another Transaction, or your Account is subject to dollar or Transaction limits, the Bank will not monitor or restrict those aspects of those Accounts in relation to your use of Simmons Online Banking. When such a restricted Account is accessed, the authorized signers are jointly responsible for all Transactions that occur in the Account, whether performed by a single authorized party and whether the restrictions are violated or not. This provision shall supersede any contrary or conflicting provisions in your Account Documentation. You may remove a restricted Account from your Simmons Online Banking service.

 

10. eSTATEMENTS.

We may make periodic statements for certain Accounts (“eStatements”) available to you from time to time, either through the Online Banking Service and/or through a separate website we may maintain for that purpose (eStatement Website).  eStatements may also include any notices or disclosures we provide to you either with periodic statements or separately.  If you enroll in Online Banking Services, we may enroll your Accounts in eStatements. eStatements can be viewed by any owner enrolled in the Online Banking Services.

You will receive an email notification for each eStatement that we post online.  You will be able to access the eStatement through Simmons Online Banking and/or the eStatement Website. You will need to ensure that your computer hardware and software meets the requirements that have previously been disclosed to you in order to view, print, and/or save your eStatements.

Your eStatements will be available to you through the Online Banking Services for a minimum of 18 months. We may, at our option, make historical statements prior to your enrollment available.  You will continue to have the option to request copies of historical statements, for which fees may apply; please refer to the Account Documentation for details. If you wish to receive a paper copy of a disclosure or other information presented to you electronically, you may contact us by phone at (866) 246.2400. Fees may apply for a paper copy.

We will use our best efforts to deliver your eStatements in a timely manner and in accordance with any applicable time required by law. However, we shall incur no liability if we are unable to deliver your eStatements because of the existence of any one or more of the following circumstances:

1. Our website or Online Banking Service is not working properly, and you know or have been advised by us of the malfunction; or
2. Circumstances beyond our control (such as, but not limited to, fire, flood, interruption in telephone service or other communication lines, interference from an outside force, legal restriction or delays in mail service) prevent proper delivery and we have taken reasonable precautions to avoid those circumstances.

 You must promptly access/review your eStatement and any accompanying items and notify us in writing immediately of any error, unauthorized Transaction, or any other irregularity. If you allow someone else to access your eStatement, you are still fully responsible to review the eStatement for any errors, unauthorized Transactions or any other irregularities. Any applicable time periods within which you must notify us of any errors on your Account statement(s) shall begin on the eStatement notification date regardless of when you access and/or review your eStatement. If you do not immediately report to Simmons Bank any non-receipt of eStatements or any error, irregularity, discrepancies, claims or unauthorized debits or items, to the fullest extent permitted by applicable law, you shall be deemed conclusively to have accepted all matters contained in the eStatements to be true, accurate and correct in all respects.

At any time, you can change the delivery method by going to the eStatements tab in Online Banking Services, clicking on “Sign Up/Changes”, and removing the checkmark from the All Account box or remove the checkmark from the Account(s) you want to remove from eStatements. When you change your settings, the change to paper delivery will take place on the next statement cycle. Please refer to your Account Documentation for potential charges related to paper delivery.

You understand and agree that by requesting electronic delivery, you will NOT receive statements, notices or documents in paper form delivered by regular United States Postal Service mail unless you specifically discontinue the eStatement service. You agree that electronic delivery will satisfy Simmons Bank's requirement to provide you a periodic statement of your Account(s). Your consent shall remain valid until such time as you exercise your right to revoke this consent. Simmons Bank retains the right to discontinue this service at any time. Your eStatement service may be discontinued, at our option and in our sole discretion, if the email notice is returned undeliverable for any reason. Should your eStatement service be discontinued, Simmons Bank will resume the paper delivery of your statement, notices and documents via the United States Postal Service.

11. FEES FOR SIMMONS ONLINE BANKING.

Fees for the Online Banking Services, including Simmons Bank Bill Payment, are set forth in the “Simmons Bank Online Banking Service Charge Schedule,” available at {https://simmonsbank.com/online-banking-service-charge-schedule}. The Simmons Bank Online Banking Service Charge Schedule may be updated by the Bank from time to time. If required by applicable law, the Bank will notify you of any changes to the Simmons Bank Online Banking Service Charge Schedule.

 

12. CANCELLATION OF SIMMONS ONLINE BANKING SERVICE.

Your Simmons Online Banking service may be canceled in whole or in part by Simmons Bank at any time without prior notice for any reason, including, but not limited to, insufficient funds in one or more of your Accounts or other circumstances that may create an unanticipated liability to the Bank. The Bank will use commercially reasonable measures to notify you in advance of such cancellation, but is not obligated to do so. You understand and agree that such action is reasonable to protect Simmons Bank from loss.

After such cancellation by the Bank for insufficient funds, the Bank may reinstate your Simmons Online Banking service once sufficient funds are available in your Accounts to cover any fees and other pending Transactions or debits. You may request reinstatement of Simmons Online Banking service after such cancellation by calling Simmons Bank at (866) 246-2400. The Bank reserves the right, in its sole discretion, to refuse to reinstate Simmons Online Banking service if canceled by the Bank.

You may cancel your Simmons Online Banking service at any time by notifying the Bank by mail at Simmons Bank, Attention: Simmons Bank Online Banking Department, P.O. Box 7009, Pine Bluff, AR 71611-7009. In the event of cancellation of your Simmons Online Banking service by either you or the Bank, you will remain responsible for all Transactions approved by Simmons Bank through Simmons Online Banking prior to the cancellation, together with any other fees associated with the Simmons Online Banking service.

 

13. BALANCE INQUIRIES, BILL PAYMENT AND FUNDS TRANSFER LIMITATIONS.

You may use Simmons Online Banking to check the balance of your Accounts and to transfer funds among your Accounts. There are no limits to the number of transfers or bill payments which can be made from any demand deposit or NOW Account (collectively referred to as “Checking Account”). Simmons Bank’s Bill Payment service is currently available for use only with Simmons Bank Checking Accounts.

The balances in your Accounts shown by Simmons Online Banking may include deposits still subject to verification by the Bank. The Account balances shown by Simmons Online Banking may also differ from your records due to deposits in progress, outstanding checks or other withdrawals, payments or charges. A transfer request may not result in immediate availability because of the time required to process the request. If you have further questions, contact the Bank’s Online Banking Department.

The Account balances shown by Simmons Online Banking are updated periodically. There may be situations that cause a delay in an update of your balances. Simmons Online Banking will use the most current balance available in the Bank’s primary computer records at the time of a Transaction request in determining whether to approve the request.

A Transfer may not be completed if we believe it is not genuine, conflicts with another instruction or relates to funds or an Account over which there is a dispute or restriction on withdrawal or if we suspect the transfer in question results from a breach in the confidentiality of a Security Procedure or relates to an Account or service that we suspect is being used for, or is the target of, fraudulent or illegal activity.

Special Information about Stop Payment Services. Generally, requests received via Simmons Online Banking will be processed within one (1) Business Day, using procedures that would handle similar requests received by mail or fax. If urgent action is required, we recommend that you contact Simmons Bank directly by telephone or in person.

Additional terms of acceptance or disclosures may apply on the Stop Payment service and these terms will be disclosed at the time you complete the request on Simmons Online Banking. The Stop Payment feature is designed to submit a request to stop payment on checks you have written. There may be additional fees associated with this service. The Stop Payment service is not available to cancel electronic payments. If you have a problem or need to cancel an electronic payment, you will need to contact the Bank at (866) 246-2400.

 

14. EXTERNAL TRANSFERS.

The Online Banking Services available to you may include the ability to engage in external transfers (“ET Service”). You understand and agree that by entering into this Agreement, you consent to terms set forth herein with respect to the ET Service and if you do not agree to these terms specific to the ET Service, you should not use the ET Service. This ET Service allows you to transfer funds between your deposit Accounts and loans at Simmons Bank and certain deposit accounts at other financial institutions (External Accounts). You will need to enroll each of your External Accounts that you wish to use for this ET Service. You agree that you will only attempt to enroll accounts for which you have the authority to transfer funds. All accounts requested to be used as part of this ET Service will be verified in accordance with Simmons Bank’s procedures. The verification process must be completed by you prior to using the ET Service. You will have a defined number of days, as defined in Simmons Online Banking, after enrolling an account to complete the verification process. Verification instructions are displayed to you during the enrollment process.

Unless displayed otherwise on the ET Service screens, funds requested to be transferred from your Simmons Bank Account will be debited from your Simmons Bank Account on the Business Day you initiate the transfer, provided you have met the cutoff time for submitting external transfers. Funds requested to be transferred to your Simmons Bank Account will be credited to your Simmons Bank Account three (3) Business Days following the day you initiate the transfer, provided you have met the cutoff time for submitting external transfers. Funds requested to be transferred to your Simmons Bank loan will be credited to your loan on the effective date of the transfer, which shall be no earlier than the Business Day following the day you initiate the transfer, provided you have met the cutoff time for submitting external transfers.  In the case of a future dated or recurring transfer, these time limits will be the Business Day following the scheduled date of the transfer. The cutoff time for initiating transfers is 5:00pm Central Time. Funds requested to be transferred will be debited/credited to the External Account according to the receiving bank’s availability and Transaction processing schedule.

Request for immediate transfers of funds cannot be cancelled. Future dated and recurring transfers can be canceled by 5:00pm Central Time the Business Day prior to the scheduled transfer date. If the transfer status is “In Process,” “Pending,” or “Processed,” you cannot cancel the transfer.

Fees will be charged according to the Simmons Online Banking Service Charge Schedule. Transfers are subject to number and dollar limits, at Simmons Bank’s discretion, unless otherwise agreed upon by you and Simmons Bank. Limits will apply to the total of all external transfers of a specific type for all Accounts enrolled in the ET Service. Simmons Bank may change your dollar limits and transfer limits at any time.

 

15. SIMMONS BANK BILL PAYMENT SERVICE.

Your daily limit for the total dollar amount of bill payments approved is governed by the daily available balance reflected in the Bank’s records for the checking Account you elect to use for making the payments. You can withdraw up to the available balance shown for the Account, as long as this balance represents sufficient funds to cover the total payments you have requested. Each payment will normally be charged to your Account on the business date it is approved, together with any bill payment fees assessed by the Bank in accordance with the Simmons Bank Online Banking Service Charge Schedule.

If for any reason Simmons Bank Bill Payment cannot make a scheduled bill payment due to insufficient funds in your checking Account, we may either refuse to honor the request or complete the Transaction and thereby overdraw the Account or transfer funds from an associated Account. In any event, you are responsible for any Insufficient Funds or incidental charges that we may impose per the applicable Account agreement.

Although bill payments may be scheduled for the current Business Day or any date in the future at any time, they will only be processed once a day at 2:00pm Central Time. If you attempt to schedule a payment for the same Business Day after the 2:00pm Central Time, the payment will be processed the following Business Day. Anything scheduled on a non-Business Day, will be processed the Business Day prior to the non-Business Day.

Because we must forward the funds and billing information to the payee, some lead-time for payments is necessary. The minimum time frame you should allow between the initiation of each payment and the date on which the payment is due will generally be determined by the way in which the payment is to be sent to the payee. If we send a paper check through the U.S. Postal Service, we suggest that the payment should be initiated at least ten (10) Business Days prior to the Business Day on which the payee is to receive the payment for processing at its address. If we send an electronic payment, we believe sufficient lead-time for initiating the payment will be four (4) Business Days prior to the date on which the payee is to receive the payment.

Special Information Regarding Canceling or Changing a Payment. To cancel or change a scheduled payment, the request must be submitted before the 2:00pm Central Time processing time on the scheduled payment date. Otherwise the payment will be processed according to its instructions at 2:00pm Central Time on the scheduled payment date.

 

16. THE BANK’S LIABILITY FOR INCOMPLETE TRANSACTIONS.

It is the Bank’s responsibility to process and complete all payments and transfers properly initiated through Simmons Online Banking in accordance with this Agreement. We will be liable pursuant to applicable laws, rules, and regulations for damages, as provided in this Agreement, where Simmons does not complete a Transaction to or from an Account in the correct amount or causes a payment delay or fails to process a payment to be received by a payee/vendor by the tenth (10th) Business Day following the date on which your Account was charged for the payment. Funds transfers will be processed within two (2) Business Days of your completion of the funds transfer Transaction in Simmons Online Banking.

NOTWITHSTANDING THE FOREGOING, SIMMONS WILL NOT BE LIABLE IF A TRANSACTION IS NOT COMPLETED DUE TO ANY OF THE FOLLOWING:

1. The available balance in your Account that is to fund the bill payment or funds transfer is insufficient at the time that Simmons Online Banking attempts to complete the Transaction;
2. Funds in your Account are subject to legal process or other encumbrances restricting the bill payment or funds transfer;
3. You had knowledge of or questions about the possible malfunction of Simmons Online Banking or the Bank’s main computer system when you initiated the Transaction;
4. The failure of Simmons Online Banking to complete the bill payment or funds transfer was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably designed and adapted to avoid any such error;
5. Any information you provide is incorrect;
6. We suspect fraudulent or illegal activity with respect to the requested Transaction or your Account;
7. There are any delays by any other parties;
8. Natural disasters (e.g., fire, flood, tornado, etc.) or other uncontrollable circumstances (e.g., mail delays, power failures, civil disobedience, etc.) prevent proper completion of the Transaction despite reasonable precautions we have taken;
9. Other applicable laws, rules, and/or regulations exempt Simmons from liability;
10. It can be shown, with regard to bill payment, that the merchant or Payee received the payment within Simmons Online Banking’s normal delivery time frame and failed to process the payment through no fault of the Bank or its service providers;
11. It can be shown that any delay may have been caused by a malfunction in communications facilities not under the Bank’s control that may have affected the accuracy or timeliness of a bill payment or funds transfer;
12. It can be shown that a delay may have been caused by a malfunction in your Internet service provider or browser software, or by a computer virus or related problem which may be attributable to your Internet service provider, your use of the Internet, or your use of any computer software or external storage device; or
13. If a delay causes you no losses or damages which you could prove in a court of appropriate jurisdiction.

 

17. NOTICE OF YOUR RIGHTS AND LIABILITIES.

Notify the Bank immediately if your Simmons Online Banking ID, Password, or other credentials have been compromised, lost, stolen, or used without your authorization. Failure to notify us immediately could result in your loss of all funds accessible through your Simmons Online Banking Password. Telephoning us at (866) 246-2400 is the best way of limiting your possible loss. You could lose all the money in your Accounts, plus the full amount of any pre-approved overdraft line of credit or overdraft privilege, if you have one.  Please refer to the Rules and to the Account Documentation for important information about your rights and responsibilities regarding unauthorized transfers.

You may terminate any agreement authorizing funds transfers to or from your Account by written notice to either the person or company initiating the transfer and Simmons Bank. Only funds transfers scheduled to occur after the Bank receives your notification are affected. Your written notice must be received by the Bank with enough time so that both the Bank and the other person or company have a reasonable opportunity to act on your request.

 

18. ELECTRONIC FUNDS TRANSFER PROVISIONS INCLUDING ERRORS AND QUESTIONS (CONSUMER CUSTOMERS).

(a) Applicability

The provisions in this Section apply only to electronic funds transfers (“EFTs”) that debit or credit a Consumer’s checking, savings or other Account and are subject to Regulation E (12 C.F.R. Part 1005). This Section does not apply to business or commercial Accounts.

When applicable, we may rely on any exceptions to the provisions in this Section that are covered in Regulation E. All terms in this Section not defined in this Agreement but defined in Regulation E will have the meaning given in Regulation E.

(b) Your Liability

Except for EFTs to or from brokerage accounts, your liability for an unauthorized EFT or a series of related unauthorized EFTs will be determined as follows:

• If you notify us within two (2) Business Days after learning of the loss or theft of your password, your liability will not exceed $50 or the amount of unauthorized EFTs that occur before notice to us, whichever is less.
• If you notify us more than two (2) Business Days after learning of the loss or theft of your password, your liability will not exceed the lesser of $500 or the sum of (i) $50 or the amount of unauthorized EFTs that occur within the two (2) Business Days, whichever is less, and (ii) the amount of unauthorized EFTs that occur after the close of two (2) Business Days and before notice to us (provided that we establish that these EFTs would not have occurred had you notified us within the two (2) Business Day period).

To avoid liability for subsequent transfers, you must report unauthorized EFTs that appear on a periodic statement within sixty (60) days of our transmittal of the statement. If you do not, your liability will not exceed the amount of the unauthorized EFTs that occur after the close of the sixty (60) days and before notice to us, and that we establish would not have occurred had you notified us within the sixty (60)-day period. You may also be liable for the amounts described above.

If your delay in notifying us was due to extenuating circumstances, we may extend the times specified in the immediately preceding paragraphs to a reasonable period.

(c) Errors/Unauthorized Electronic Funds Transfers/Questions

In cases of errors or questions concerning EFTs completed with Simmons Online Banking, do one of the following, as soon as possible:

Telephone the Bank at (866) 246-2400;

or

Write to the Bank at Simmons Bank, Attention: Simmons Bank Regulation E Dispute Department, P.O. Box 7009, Pine Bluff, AR 71611-7009;

or

Initiate a payment inquiry through Simmons Online Banking.

We must hear from you no later than sixty (60) days after we sent the FIRST statement on which the problem or error appeared. Please include the following information:

• Your name;
• Your Account Number and Simmons Online Banking ID;
• Description of the error or what you are unsure about, plus an explanation of why you believe it is an error or why you need more information;
• The dollar amount of the error; and
• If the error or question relates to Simmons Bank Bill Payment, include the following additional information:
• The Account number of the Simmons Bank checking Account used to pay the bill;
• The payee name;
• The date the payment was sent;
• The confirmation number for the payment received through Simmons Online Banking;
• The payment amount; and
• Your Account number with the payee for the payment in question.

If you report a problem by phone, we may need you to submit 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 promptly correct any error and report the results of our investigation within three (3) Business Days after completing the investigation. If we need more time to conduct our investigation, we will notify you of our need for an extension of up to forty-five (45) days. If we decide to do this, we will provisionally credit your Account within ten (10) Business Days for the amount you think is in error, so you can use the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and do not receive it within ten (10) Business Days, we may not provisionally credit your Account.

For errors involving new Accounts, point-of-sale or foreign-initiated Transactions, our investigation may take up to ninety (90) calendar days. For new Accounts, we may take up to twenty (20) Business Days to provisionally 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.

If we decide that no error occurred, we will send you an explanation within three (3) Business Days after the conclusion of our investigation. You can ask for copies of the documents that we used in the investigation.

(d) Changes to Debit Amounts

If you authorize a person to regularly debit your Account, and the amount varies from the previous amount debited, he/she must tell you, at least ten (10) days before each debit, when the debit will be made and how much it will be.

(e) Stop Payment Orders for Pre-authorized Electronic Funds Transfers

To place a stop payment order on preauthorized EFTs, call us at the number listed on the statement for your Account or at the number above, at least three (3) Business Days before the scheduled transfer date. We’ll need:

• Your name and the Account number associated with the transfer;
• The exact name of the payee;
• The exact payment amount; and
• The scheduled transfer date.

If you do not provide correct and complete information, we may not be able to stop payment of the preauthorized EFT. 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.

PREAUTHORIZED PAYMENTS

Right to stop payment and procedure for doing so. If you have told us in advance to make regular payments out of your Account, you can stop any of these payments. Here’s how:

Call us at the number above, or write us at the address above, in time for us to receive your request three (3) Business Days or more before the payment is scheduled to be made. If you call, we may also require you to put your request in writing and get it to us within 14 days after you call. You may be charged a fee for placing a stop payment.  Please refer to the schedule of fees.

Notice of varying amounts. If these regular payments may vary in amount, the person you are going to pay will tell you, 10 days before each payment, when it will be made and how much it will be. (You may choose instead to get this notice only when the payment would differ by more than a certain amount from the previous payment, or when the amount would fall outside certain limits that you set.)

Liability for failure to stop payment of preauthorized transfer. If you order us to stop one of these payments three (3) Business Days or more before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages.

(f) Acknowledgments and Agreements

You agree to indemnify and hold us harmless from and against any loss incurred by us if we do not pay a preauthorized EFT because:

• Any of the information relied upon in the stop payment order is incorrect or incomplete; or
• A valid stop payment order is in effect.

 

19. MOBILE DEPOSITS.

The following provisions apply to your use of the mobile deposit services within Simmons Online Banking (“Mobile Deposit Services”).  For consumer customers, the Mobile Deposit Services are provided to you at no charge. However, for all customers, mobile deposits to an Account count towards any deposit limits or “excess deposit” fees applicable to that Account – exceeding those deposit limits or creating excess deposits may result in fees or charges.  See the fee schedules that apply to your Account(s).

To use the Mobile Deposit Services, you must have a supported mobile device (e.g., smartphone, tablet, etc.) with a supported camera and a supported operating system, and access to the Internet.  You must also download our Mobile App to your mobile device. Simmons Bank does not guarantee that your particular mobile device, mobile device camera, mobile device operating system or mobile carrier will be compatible with the Mobile Deposit Services.

We may, at our option, automatically enroll one or more of your Accounts for Mobile Deposit Services.  We may also, at our option, suspend or terminate your enrollment in Mobile Deposit Services with respect to one or more Accounts, in our sole discretion.  We will provide you with notice of any such enrollment or suspension as required by applicable law.

When using the Mobile Deposit Services, you may experience technical or other difficulties. Simmons Bank does not assume responsibility for any such difficulties or any resulting damages that you may incur. For security reasons, the Mobile Deposit Services have qualification requirements, and Simmons Bank reserves the right to change the qualifications at any time without prior notice. Simmons Bank reserves the right to change, suspend or discontinue the Mobile Deposit Services, in whole or in part, or your use of the Mobile Deposit Services, in whole or in part, immediately and at any time without prior notice to you. Simmons Bank reserves the right to limit the number of mobile devices through which you may access the Mobile Deposit Services.

Except as expressly provided herein, deposits made though the Mobile Deposit Services are subject to all limitations and terms set forth in the Account Documentation, including, but not limited to, those related to deposit acceptance, crediting, collection, endorsement, processing order and errors.

You agree to scan and transmit only checks as that term is defined in Federal Reserve Regulation CC, 12 C.F.R. Part 229 (“Reg CC”).

You agree that the image of the check transmitted to Simmons Bank shall be deemed an “item” within the meaning of Article 4 of the applicable Uniform Commercial Code. You agree that you will not use the Mobile Deposit Services to scan and deposit any of the following checks or other items: (i) checks or items payable to any person or entity other than you, or to you and another party; (ii) checks or items containing alteration to any of the fields on the front of the check or item (including the MICR line), or which 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 or item is drawn; (iii) checks or items previously converted to a substitute check, as defined in Reg CC; (iv) checks or items drawn on a financial institution located outside the United States; (v) checks or items that are remotely created checks, as defined in Reg CC; (vi) checks or items not payable in United States currency; (vii) checks or items issued by a US federal agency; and/or (viii) money orders, savings bonds or traveler’s checks.

Nothing herein will be construed as requiring Simmons Bank to accept any check or item for deposit, even if Simmons Bank has accepted that type of check or item previously. Nor shall Simmons Bank be required to identify or reject any checks or items that you may scan and deposit that fail to meet the requirements herein.

The image of a check or item transmitted to Simmons Bank using the Mobile Deposit Services must be legible. The image quality of the checks and items must comply with the standards established from time to time by the American National Standards Institute, or any higher standard set by us, and with any requirements set by any clearing house we use or agreement we have with respect to processing checks or items. You agree that Simmons Bank shall not be liable for any damages resulting from a check or item’s poor image quality, including those related to rejection of or the delayed or improper crediting of such a check or item, or from any inaccurate information you supply regarding the check or item, including if you enter the incorrect amount of the check or item as a deposit is made through the Mobile Deposit Services. If Simmons Bank determines that the check or item is for a different amount, Simmons Bank may adjust the deposit amount and notify you of the adjustment.

Before transmission to Simmons Bank, you agree that you will restrictively endorse any check or item transmitted through the Mobile Deposit Services as provided in this Agreement. You agree to follow any and all other procedures and instructions for use of the Mobile Deposit Services as Simmons Bank may establish from time to time. You agree to supply any information in your possession that Simmons Bank requests regarding a check or item deposited or attempted to be deposited through the Mobile Deposit Services.

Simmons Bank reserves the right to reject any check or item transmitted through the Mobile Deposit Services, at its discretion, without liability to you. Simmons Bank is not responsible for checks or items it does not receive in accordance with the terms set forth herein or for images that are dropped or damaged during transmission. An image of a check or item shall be deemed received when you receive a confirmation from Simmons Bank that we have received the image.

Simmons Bank reserves the right to impose limits on the amount(s) and/or number of deposits (over a period of time we establish) that you transmit using the Mobile Deposit Services and to modify such limits from time to time.  Limits we establish will apply to all checks and/or items deposited via Mobile Deposit Services and may be imposed generally or specifically with respect to your Accounts.  If we set specific limits for your Accounts, we will give you notice of such limits as required by applicable law.   In the event that you exceed any such limits, we may place a hold on one or more of your deposits – this may include any check or item you deposit using Mobile Deposit Services, including without limitation treasury checks, cashier’s checks, official checks, and postal or other money orders.

You acknowledge that funds deposited remotely using Mobile Deposit Services (“Mobile Deposits”) are not subject to the funds availability requirements of Reg CC. Mobile Deposits will generally be available the same Business Day.  However, we will impose a hold on any item if (and to the extent) the amount of the item exceeds one-third of your monthly Mobile Deposit limit. Tap “Deposit Limits” within the Mobile App to view your monthly Mobile Deposit limit.  Any funds held will generally not be available until the third Business Day after the day of your deposit.  The Business Day Cutoff Time for Mobile Deposit Services is 6:00 p.m. CT.  Mobile Deposits made after the Business Day Cutoff Time or on a day that is not a Business Day are considered made the next Business Day. 

In addition to the holds previously described, in some other cases, we may delay the availability of Mobile Deposits for a longer period.  For example, Mobile Deposits may be delayed for a longer period when we believe the Mobile Deposit will not be paid; you make a Mobile Deposit that has previously been returned unpaid; you have overdrawn your Account repeatedly in the last six months; or there is an emergency, such as a failure of computer or communications equipment.  In such cases, we will notify you, and we will tell you when the funds will be available. 

Simmons Bank reserves the right to change the Business Day Cutoff Times for items deposited via Mobile Deposit Services at any time as permitted by law. Regardless of whether Simmons Bank establishes later cutoff times for items deposited via Mobile Deposit Services, you understand and agree that checks and items must be received and accepted by Simmons Bank before the applicable Business Day Cutoff Time and must not be incomplete, illegible or erroneous to be eligible for same-day crediting. This means you may not be able to make withdrawals against deposits made through the Mobile Deposit Services until the deposit has been posted to your Account.

After a check or item has posted to your Account, you agree to prominently mark the check or item as “Electronically Presented.” You agree never to re-present to Simmons Bank or any other party a check or item that has been deposited through the Mobile Deposit Services unless Simmons Bank notifies you that the check or item will not be accepted for deposit through the Mobile Deposit Services. You will promptly provide any check or item, or a sufficient copy of the front and back of the check or item, to Simmons Bank as requested to aid in the clearing and collection process, to resolve claims by third parties with respect to any check or item, or for Simmons Bank’s audit purposes. You agree to destroy or otherwise properly dispose of checks and items that have been accepted for deposit through the Mobile Deposit Services and have cleared to ensure that such checks and items are not re-presented for payment and, prior to disposal or destruction, to safeguard such checks and items.

The manner in which the checks and items are cleared, presented (or re-presented) for payment, and collected shall be in Simmons Bank’s sole discretion as set forth herein.

You represent and warrant to Simmons Bank that:

1. You will only transmit eligible checks and items that you are entitled to endorse, and all checks and items will include all signatures required for their negotiation;
2. Before transmission to Simmons Bank, you agree that you will restrictively endorse the back of any check transmitted through the Mobile Deposit Services: “For Mobile Deposit at Simmons Bank Only” and, where available, by checking the box named “CHECK HERE IF MOBILE DEPOSIT”;
3. You will transmit to us only eligible checks that are suitable for processing, including, but not limited to, checks that are legible and contain machine-readable MICR data;
4. You will not transmit an image or images of the same check or item to us more than once and will not deposit or negotiate, or seek to deposit or negotiate, such check or item with any other party;
5. You will not deposit or re-present the original check or item with Simmons Bank or any other party;
6. You will prominently mark the check or item as “Electronically Presented” after a check or item has posted to your Account and after transmitting the eligible check to us, you will retain the original paper checks for a minimum of five (5) calendar days, but no longer than fourteen (14) calendar days, from the transmission date (the “Retention Period”), and you will retain and store the original paper checks in a secure and locked container that is only accessible by persons needing access to such paper checks, and finally during the Retention Period and upon our request, you agree to provide us with the original paper checks; once the Retention Period has expired, you will securely and irretrievably destroy original paper checks from which you have previously created and submitted to us through use of the Mobile Deposit Services;
7. You will not store or make a back-up copy of any check;
8. All information you provide to Simmons Bank is accurate and true, including that all images transmitted to Simmons Bank accurately reflect the front and back of the check or item at the time it was imaged;
9. You will comply with this Agreement and all applicable laws, rules, and regulations and any and all other procedures and instructions for use of the Mobile Deposit Services as Simmons Bank may establish from time to time;
10. You will supply any information in your possession that Simmons Bank requests regarding a check or item deposited or attempted to be deposited through the Mobile Deposit Services;
11. You will use the Mobile Deposit Services only for your own deposits and will not allow the use of the Mobile Deposit Services by way of a service bureau business, timesharing, or otherwise disclose or allow use of the Mobile Deposit Services by or for the benefit of any third party; and
12. By your utilization of the Mobile Deposit Services you acknowledge that the third-party service provider of the Mobile App may have access to the nonpublic personal information transmitted by you through the Mobile App.

In addition to your other indemnification obligations as set forth herein, you agree to indemnify and hold harmless Simmons Bank from any loss arising directly or indirectly from or related to any breach of this warranty provision or the terms relating to your use of the Mobile Deposit Services.

You understand that your use of the Mobile App and Mobile Deposit Services may be subject to your agreement to, and compliance with, certain third-party terms (e.g., Apple and/or Google) and that Simmons Bank is not responsible for nor shall it be liable to you with respect to any such third-party terms.

Simmons Bank reserves the right to terminate, modify, add and remove features from the Mobile Deposit Services at any time in Simmons Bank’s sole discretion. You may reject changes by discontinuing use of the Mobile Deposit Services. Your continued use of the Mobile Deposit Services will constitute your acceptance of and agreement to such changes. Maintenance to the Mobile Deposit Services may be performed from time-to-time resulting in interrupted service, delays or errors in the Mobile Deposit Services, and Simmons Bank shall have no liability for any such interruptions, delays or errors. Attempts to provide prior notice of scheduled maintenance may be made, but Simmons Bank cannot guarantee that such notice will be provided.

You may cancel the Mobile Deposit Services at any time by calling (866)246-2400 and allowing Simmons Bank a reasonable opportunity to act upon your request. If you cancel, Simmons Bank will not refund any portion of any fee assessed for any checks and items previously deposited via Mobile Deposit Services. Simmons Bank will have no obligation to honor any instruction, in whole or in part, that (i) Simmons Bank reasonably believes is used for any illegal or improper purpose or activity; (ii) Simmons Bank has reason to believe may not be authorized by you; (iii) would violate any law, rule or regulation applicable to Simmons Bank or the Mobile Deposit Services; (iv) is not in accordance with any other requirement stated in this Agreement or any of Simmons Bank’s policies, procedures or practices; or (v) for Simmons Bank’s protection or yours, Simmons Bank has reasonable cause not to honor. Simmons Bank reserves the right to refuse to honor an instruction or suspend or terminate the Mobile Deposit Services, in whole or in part, at any time, with or without notice to you, with or without cause, including, without limitation, if: (a) Simmons Bank has any reason to believe that your Account has been compromised or mismanaged in any way, such as by unauthorized or erroneous use of your Access Information; or (b) Simmons Bank believes the Mobile Deposit Services are not being used for the intended, bona fide and lawful purposes under this Agreement; (c) Simmons Bank has reason to believe the Mobile Deposit Services are being used in an anti-competitive manner or contrary to Simmons Bank’s business interests; (d) your Account is closed, access to your Account is restricted for any reason, or if you do not use the Mobile Deposit Services for a period of time; or (e) following initial enrollment you do not use the Mobile Deposit Services. Termination will not affect your liability or obligations under this Agreement or any other agreements you have with Simmons Bank for actions that Simmons Bank has taken on your behalf.

You agree that Simmons Bank retains all ownership and proprietary rights in the Mobile Deposit Services, associated content, technology, and website(s). You agree not to copy, disassemble, decompile, or otherwise reverse engineer any part of the Mobile Deposit Services, including the Mobile App. You may use the Mobile Deposit Services only for your own benefit. You may not copy, reproduce, distribute or create derivative works from the content and agree not to reverse engineer or reverse compile any of the technology used to provide the Mobile Deposit Services. In the event that you attempt to use, copy, license, sublicense, sell or otherwise convey or to disclose the Mobile App or any other part of the Mobile Deposit Services, in any manner contrary to the terms of this Agreement, Simmons Bank shall have, in addition to any other remedies available to us, the right to injunctive relief enjoining such actions.

SIMMONS BANK IS ONLY RESPONSIBLE FOR PERFORMING THE MOBILE DEPOSIT SERVICES AS EXPRESSLY STATED HEREIN. THERE IS NO GUARANTEE THAT ACCESS TO THE MOBILE DEPOSIT SERVICES WILL BE AVAILABLE AT ALL TIMES, AND SIMMONS BANK SHALL NOT BE LIABLE IF YOU ARE UNABLE TO ACCESS THE MOBILE DEPOSIT SERVICES. THE MOBILE DEPOSIT SERVICES ARE PROVIDED “AS-IS” AND, EXCEPT AS PROHIBITED BY LAW, SIMMONS BANK AND ITS THIRD-PARTY SERVICE PROVIDERS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES CONCERNING THE MOBILE DEPOSIT SERVICES, MOBILE APP, EQUIPMENT OR SOFTWARE, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY PARTIES’ PROPRIETARY RIGHTS.

You agree that you will not use the Mobile Deposit Services in locations that are prohibited under U.S. laws, rules, and regulations, including laws and regulations issued by the Office of Foreign Assets Control.

 

20. CARD ACTIVATION, CARD MANAGEMENT AND ALERT SERVICES.

Your enrollment in Simmons Online Banking may include access to activate cards associated with your Account (“Card Activation”), to manage cards associated with your Account (“Card Management”) and to receive certain alerts (“Alert Services”). By receiving or otherwise using these services, you agree to the following terms.

(a) Card Activation

Card Activation is designed to allow you to activate your ATM, debit, or credit card through Online Banking. By activating your card, you acknowledge that the card was issued to you, and you acknowledge receipt of and agree to the Account Documentation for the card and any associated Account.

(b) Card Management

Card Management is designed to allow you to temporarily or permanently disable your ATM, debit, or credit card in the event it is misplaced, lost, or stolen, and to reorder a card if you need a replacement. When a card is disabled, Transactions using that card will be declined except as provided below. Card Management does not allow for the cancellation of authorized or pre-authorized card Transactions and is not intended as a method for stopping payment of such Transactions. All Transactions for which there is a prior authorization before the card is disabled will be paid and recurring Transactions may continue to post. In addition, disabling a card will not prevent credits or deposits from being processed.

In addition, Card Management may allow you to request us to block certain Transactions based on spending limits, locations, merchant types, or Transaction types. Card Management may allow you to enter travel notes on your ATM or debit card. You understand that merchants are assigned a merchant code and other parameters that we rely on when implementing these requests and that we do not have control over the assigned merchant code or other parameters. While the merchant code is typically assigned based on the line of business and type of products and/or services primarily sold or provided by the merchant, some merchants you expect would fall within a certain type may not. Similarly, certain parameters establishing a merchant’s location may not be what you expect. Consequently, some Transactions you expect would be blocked may not be.

When you restrict usage of your card through Card Management, you acknowledge and agree that you release us from any liability for Transactions that are rejected due to your elected controls. In addition, you acknowledge and agree that our implementation of your request to restrict usage is provided as a courtesy only and that we are not liable for failing to block any Transaction.

Your responsibilities to monitor your periodic Account statements and to provide us with notice of unauthorized Transactions or lost or stolen cards are subject to the Account Documentation  and are not affected by any elections you make using Card Management. If your card has been lost or stolen, you must notify us immediately; disabling your card is not notice to us of a lost or stolen card.

(c) Alert Services

Alert Services may include the delivery of informational alerts or fraud alerts. You have the option to enroll to receive certain informational alerts within Simmons Online Banking but may receive alerts related to suspected fraudulent activity independent of your enrolled alerts. You agree that we may send alerts to you via text message through your mobile service provider, phone call, e-mail, or any other delivery method available to us based on the information we have in our records for you. Additionally, by providing us with a mobile phone number and/or selecting text message alerts, you certify that you are the mobile phone number subscriber or have permission from the subscriber to use the mobile phone number for Alert Services. You agree that you will immediately notify us if the phone number is changed or deactivated. Further, you agree to indemnify, defend, and hold us harmless from and against any and all claims, losses, liability, costs, and expenses, including reasonable attorneys' fees, arising from your provision of a phone number, e-mail address, or other delivery method that is not your own and for your violation of applicable federal, state or local law, regulation, or ordinance. Your obligation under this paragraph shall survive termination of this Agreement.

The Alert Services are provided for your convenience and are not an official record for your Account. We do not guarantee continuous, uninterrupted, or secure alerts. You understand that there may be a disruption in service if you change your mobile service provider and that Alert Services may be delayed or impacted by your Internet service provider, phone carrier, carrier coverage, and other factors. You also understand and agree that these alerts may not be encrypted and may include personal or confidential information about you such as Account activity or the status of your Account. We are not liable for losses or damages arising from disclosure of Account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the alerts and messages sent.

There is no service fee for the Alerts Services; however, you are responsible for all costs incurred in relation to the Alert Services. Neither we nor Visa will be responsible for fees or costs you incur in receiving notifications through SMS messages to your mobile phone, the cost of obtaining a wireless carrier, an appropriate wireless data services plan, a compatible mobile device, and/or any SMS message fees charged by your mobile carrier. In addition, neither we nor Visa will be responsible for fees or costs you incur in receiving notifications through email, accessing a personal computer, Internet-enabled phone, or other device used to receive emails, and/or associated costs charged by your internet service provider. Message and data rates may apply. Message frequency depends on the preferences and settings you select. To cancel Alert Services and discontinue all other SMS messages, text STOP to the number from which you received the Alert Services, at any time. For help or information on the Alert Services, text HELP to the number from which you received the Alert Services. For additional assistance with Alert Services, you may contact us at 1-866-246-2400.

 

21. CREDIT CARD ACCOUNT PAYMENTS.

We may offer multiple electronic methods for you to make payments on your Simmons Bank credit card Account. You may make electronic payments through Simmons Bank Credit Card Digital Services by visiting www.simmonsbankcards.com (or by viewing your consumer credit card Account within Simmons Online Banking and selecting “More Credit Card Services”). Payments made through Simmons Bank Credit Card Digital Services are governed by a separate agreement, which is available within that separate service. This Agreement governs credit card Account payments made using the Make a Payment Feature within Simmons Online Banking.

Within Simmons Online Banking, eligible users may make one-time or recurring payments from a Simmons Bank deposit Account or External Account by clicking on the “Make a payment” button if accessing Simmons Online Banking through a web browser, or the “Pay” button if accessing Simmons Online Banking through the Mobile App (the “Make a Payment Feature”).  The Make a Payment Feature is currently available only for consumer Simmons Bank credit card Accounts.

(a) One-Time Payments

You may schedule one-time payments from a Simmons Bank deposit Account or an External Account using the Make a Payment Feature. You can only make one payment per day per payment account using this feature. If you try to make an additional payment on the same day with the same payment account, the additional payment will fail. You may not make a one-time payment using the Make a Payment Feature while Autopay is turned on. If you want to make a one-time payment using this feature, you must first turn off Autopay.  Payments made using this feature after 10:59 pm Central Time on a Business Day and payments made on a non-Business Day will be processed on the next Business Day.

(b) Autopay

You may schedule recurring payments from a Simmons Bank deposit Account or an External Account using the “Autopay” feature within the Make a Payment Feature.

To enroll in Autopay, select your credit card Account under “Accounts”, then select “Enroll in Autopay”. To schedule Autopay payments, select a payment method, and a payment amount. The payment amount may be your credit card statement balance, minimum amount due, or other fixed amount. If your credit card Account balance is less than your recurring fixed payment amount on a payment due date, the current balance on your credit card Account will be paid.  By enrolling in Autopay payments using the Make a Payment Feature, you are authorizing recurring payments, and you authorize and direct us to initiate a Credit Card Payment Transaction at approximately monthly intervals on your payment due date until you timely revoke or amend your authorization by turning off or editing your autopay options (as described below) at least one (1) Business Day before the next scheduled payment. The first Autopay payment will be made on your next payment due date. If you enroll in Autopay on a day when a payment is already being processed, that payment will be overwritten.

To stop or edit payment of an Autopay payment made within the Make a Payment Feature, select your credit card Account under “Accounts”, click the arrow next to “Autopay is turned on” and then select “Turn off” or “Edit payment options”.

(c) Credit Card Payment Transactions

By scheduling recurring payments or by making a one-time payment (if the one-time payment is made from an External Account) using the Make a Payment Feature, you authorize and direct us (or, at our discretion, our agent) to (i)  apply the amount as a payment to your designated credit card Account, and (ii) initiate an Automated Clearinghouse (“ACH”) debit entry to withdraw funds from the designated External Account or Simmons Bank deposit Account in the amount of the Transaction (and, if necessary, initiate ACH credit entries to your Account to correct any erroneous debits) (collectively, items (i) through (ii) are considered a “Credit Card Payment Transaction”).

By making a one-time payment from a Simmons Bank deposit Account using the Make a Payment Feature, you authorize and direct us (or, at our discretion, our agent) to (i) immediately place a memo debit on the designated deposit Account in the amount of the Transaction to hold the funds (you acknowledge that funds subject to the hold will not be available to you to use for any other purpose), (ii) apply the amount as a payment to your designated credit card Account, (iii) initiate an Automated Clearinghouse (“ACH”) debit entry to withdraw funds from the designated deposit Account in the amount of the Transaction (and, if necessary, initiate ACH credit entries to your Account to correct any erroneous debits), and (iv) release the hold on the designated deposit Account prior to or near the time the ACH debit entry is settled (collectively, items (i) through (iv) are also considered a “Credit Card Payment Transaction”).  You acknowledge that we intend to release the hold on the designated deposit Account at or near the time the ACH debit entry is settled.  However, should the hold be released prior to the time of settlement of the ACH debit entry, you agree to maintain funds in the designated deposit Account in an amount equal to or greater than the Transaction amount.  You acknowledge that if the ACH debt entry is returned, then the payment made to the credit card Account may be considered a returned payment. You acknowledge and agree that, in order to initiate such a Transaction, we may require you to have sufficient funds in the designated deposit Account in an amount equal to or greater than the Transaction amount. If sufficient funds are not available, Simmons may decline to process the Transaction. If we do elect, in our sole discretion, to process the Transaction in such circumstances, or, if the hold is released prior to the time of settlement of the ACH debit entry and you fail to maintain funds in the designated deposit Account in an amount equal to or greater than the Transaction amount, you acknowledge that the Transaction may cause an overdraft in the designated deposit Account. In such instance, you shall be solely responsible for the amount of the overdraft and any applicable overdraft fees, as set forth in the Account Documentation.

Upon your authorization of a one-time Credit Card Payment Transaction or recurring Credit Card Payment Transactions as described in this Section, we will e-mail a confirmation to you at the e-mail address that we have in our records for you. You acknowledge that you are solely responsible for reviewing this confirmation promptly upon receipt (including, among other things, the date and amount transferred as part of the Transaction) and immediately notifying us of any discrepancy between the confirmation and your records.

You certify that any deposit account (whether a Simmons Bank deposit Account or an External Account) you add to make a payment to your credit card Account using the Make a Payment Feature is a deposit account from which you are authorized to make payments and withdrawals, and any Credit Card Payment Transaction you initiate will debit a deposit account that you are legally authorized to use.  If the financial institution upon which your payment is drawn, including Simmons Bank, rejects, refuses, or returns the payment, the payment to your credit card Account will be reversed and you may incur late payment or other fees. In addition, the institution holding your deposit account may impose a returned item or other fee.

You acknowledge and agree that, in addition to this Agreement, Credit Card Payment Transactions initiated using the Make a Payment Feature are subject to all applicable Account Documentation, the NACHA Operating Rules, and applicable law.

 

22. LIMIT OF BANK AND OTHER PROVIDERS’ RESPONSIBILITY.

Simmons Bank agrees to make reasonable efforts to ensure full performance of Simmons Online Banking. The Bank will be responsible for acting only on those instructions sent through Simmons Online Banking that are actually received and cannot assume responsibility for malfunctions in communications facilities not under its control that may affect the accuracy or timeliness of messages you send. Simmons Bank is not responsible for any losses or delays in transmission of instructions arising out of the use of any Internet service provider or caused by any browser software. Any information you receive from Simmons Bank can only be provided for your convenience and is not guaranteed. The Bank is not liable for any deficiencies in the accuracy, completeness, availability or timeliness of such information or for any investment or other decision made using this information. Simmons Bank is not responsible for any computer virus or related problems that may be attributable to Simmons Online Banking or to any services provided by any Internet services provider. The Bank may on a regular basis perform maintenance on Simmons Online Banking or other equipment and systems operated by the Bank or its service providers that may result in interruption of Simmons Online Banking service, and the Bank will not incur any liability to you as the result of any such interruptions.

 

23. LIMITATION OF LIABILITY.

YOU UNDERSTAND AND AGREE THAT THE SIMMONS ONLINE BANKING SERVICE IS PROVIDED AS-IS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR AS REQUIRED BY LAW, THE BANK ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE SIMMONS ONLINE BANKING SERVICE IS AT YOUR SOLE RISK, THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SIMMONS ONLINE BANKING SERVICE IS DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR THE OBTAINING OF SUCH MATERIAL AND/OR DATA.

EXCEPT AS EXPRESSLY SET FORTH ON THE SIMMONS BANK WEBSITE OR IN THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR THIRD PARTY RIGHTS, AND WE MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SIMMONS ONLINE BANKING SERVICE, THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH SIMMONS ONLINE BANKING, THE ACCURACY OF ANY INFORMATION RETRIEVED BY US FROM THE ACCOUNTS OR WHETHER THE SIMMONS ONLINE BANKING SERVICE WILL MEET ANY USER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.

WE ARE ONLY LIABLE FOR DAMAGES YOU INCUR THAT ARE SOLELY AND PROXIMATELY CAUSED BY OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND IN NO EVENT WILL OUR LIABILITY TO YOU EXCEED THE LESSER OF (i) YOUR ACTUAL DAMAGES OR (ii) THE TOTAL FEES PAID BY YOU TO US FOR THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE ALLEGED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. 

EXCEPT AS DESCRIBED IN THIS AGREEMENT, WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SIMMONS ONLINE BANKING SERVICE, ANY INACCURACY OF ANY INFORMATION OR AMOUNT RETRIEVED BY US FROM THE ACCOUNTS, ANY BREACH OF SECURITY CAUSED BY A THIRD PARTY, ANY TRANSACTIONS ENTERED INTO BASED ON THE SIMMONS ONLINE BANKING SERVICE, ANY LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF A USER’S TRANSMISSIONS OR DATA OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

24. DISCLOSURE OF ACCOUNT INFORMATION TO THIRD PARTIES.

Information about your Account(s) or the Transactions you initiate will be disclosed to third parties only if at least one of the following applies:

1. It is necessary to complete a Transaction;
2. To verify the existence and condition of your Account to a consumer reporting agency or merchant;
3. To comply with a governmental agency, court order, or lawful subpoena, or to a person authorized by law to inspect or review our records in the course of such person’s official duties;
4. To any attorney or collection agent of the Bank;
5. To an employee or outside auditor of the Bank solely for the purpose of an official audit or accounting, or to any other person for the purpose of servicing your Account relationship, including preparation of the periodic statement of account, but only to the extent actually necessary to accomplish such purposes;
6. If permission is given by you, which we may require to be in writing;
7. To collect information for internal use, the use of our service providers, and our servicing agents and contractors concerning Simmons Online Banking;
8. It involves a claim by or against us concerning a deposit to or withdrawal from your Account; or
9. Where otherwise required or permitted under state or federal laws, rules, and/or regulations.

 

25. ARBITRATION, WAIVER OF CLASS ACTIONS AND WAIVER OF JURY TRIAL.

1. The resolution of any dispute or claim between you and us (including ones arising out of or relating in any way to this Agreement or the Online Banking Services) shall be governed by the arbitration provision in the deposit agreement governing your Account in effect when you or we commence arbitration or litigation of the claim. If the deposit agreement governing your Account has been terminated, the arbitration provision in your final Account agreement shall apply, except that you also may choose to arbitrate under the terms of any newer deposit agreement applicable to current customers.  The current deposit agreement for consumer customers is available online at https://simmonsbank.com/terms-and-conditions/personal-terms-and-conditions, and the current deposit agreement for business customers is available online at https://simmonsbank.com/terms-and-conditions/business-terms-and-conditions.  If you validly opted out of the arbitration provision in your current deposit agreement governing your Account, this arbitration provision does not apply to you.
2. You hereby irrevocably and unconditionally consent to the jurisdiction of the federal and state courts in Arkansas. To the extent a dispute or claim arising out of or related in any way to this Agreement or the Online Banking Services is not resolved through arbitration, you and we hereby agree that any action or proceeding involving any such dispute or claim must be brought in a state or federal court of competent jurisdiction located in Arkansas.  You hereby waive any objection to laying venue in the aforementioned courts, as well as any objection that the aforementioned courts are an inconvenient forum or do not have jurisdiction over you.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION OR OTHER PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE ONLINE BANKING SERVICES.

 

26. GOVERNING LAW.

The terms and conditions of this Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas. Any issue relating to an Account or service with Simmons Bank which you access through Simmons Online Banking shall be governed by the laws specified in the agreement for that Account or service if there is a separate agreement for that Account or service.

 

27. RIGHTS.

You acknowledge and agree that Simmons Bank and/or our service provider owns all rights in and to the Simmons Online Banking service. You are permitted to use this service only as expressly authorized by this Agreement. You may not copy, reproduce, distribute, or create derivative works, reverse engineer or reverse compile Simmons Bank and/or our service provider’s Simmons Online Banking service or any of Simmons Bank and/or our service provider’s services or technology.

 

28. NO UNLAWFUL OR PROHIBITED USE.

As a condition of using Simmons Online Banking, you warrant to us that you will not use Simmons Online Banking for any purpose that is unlawful or is not permitted, expressly or implicitly, by the terms of this Agreement or by any applicable law, rule, or regulation. You further warrant and represent that you will not use Simmons Online Banking in any manner that could damage, disable, overburden, or impair this service or interfere with any other party’s use and enjoyment of Simmons Online Banking. You may not obtain or use Simmons Online Banking to obtain any materials or information through any means not intentionally made available or provided for through this service. You agree that these warranties and representations will remain in full force and effect even if this Agreement terminates for any reason.

 

29. LINKS TO THIRD PARTY SITES.

The Simmons Bank website may contain links to other websites (“Linked Sites”). Such links are provided solely as a convenience to you. Simmons Bank does not approve or otherwise endorse any content or information contained in any Linked Sites. You acknowledge and agree that Simmons Bank, its affiliates and partners are not responsible for the contents of any Linked Sites, including the accuracy or availability of information provided by Linked Sites, and makes no representations or warranties regarding the Linked Sites or your use of them.

 

30. THIRD-PARTY SOFTWARE AND CONTENT.

We may offer third-party software tools and products (“Third-Party Software”) that you can install on your computer or access through the Online Banking Service. You are responsible for obtaining a valid and separate license agreement with the provider of the Third-Party Software.

We may offer third-party information, commentary, and tools (“Third-Party Content”). Third-Party Content offered in or accessed through the Online Banking Service is generally labeled as such, and may be available either in a frame, via a hyperlink, or simply posted to the Online Banking Service. We don’t own any interest in, edit, review or endorse any Third-Party Content.

We reserve the right to cancel your access to any Third-Party Software at any time without notice. We may also suspend or terminate your access to Third Party Content at any time without notice and for any reason, including, but not limited to, your non-use of the Third-Party Content.

You agree that:

1. Any Third-Party Software you download through your financial management software is provided to you "as is" and "as available."
2. Any Third-Party Content you review or use is provided to you "as is."

You agree that we make no warranties and have no liability as to:

1. The accuracy, completeness, availability or timeliness of the information, text, graphics, or other items provided, stored, evaluated or processed through the Third-Party Software or Third-Party Content;
2. Any errors or omissions in the delivery or transmission of the Third-Party Software or Third-Party Content from us to you (and "you" includes delivery to your financial management software and/or your computer); and
3. The Third-Party Software's or Third-Party Content's fitness for a particular purpose and non-infringement of any third-party rights.

You understand that some states do not allow limitations on how long an implied warranty lasts, so that the above limitations may not apply to you, and that you may also have other rights, which vary from state to state.

You agree that we won’t be liable to you for:

1. Your inability to access or use the Third-Party Software.
2. The accuracy, timeliness, loss or corruption, or misdelivery of any Account information or any other information processed by the Third-Party Software.
3. Unauthorized access to your Accounts or to your Account information and any misappropriation, or alteration, of your Account information or data as a result of your installation or use of the Third-Party Software.
4. Removing your access to, or unenrolling you from, any Linked Site, Third-Party Software or Third-Party Content at our sole discretion.

You agree and understand that:

1. You assume all risk that unauthorized third parties may access any Third-Party Software you download and install, or any information you enter into the Third-Party Software.
2. If you use the Third-Party Software to transmit information, you and the Third-Party Software provider are responsible for the security and confidentiality of that information.
3. Any Third-Party Software downloads are your own risk and you alone are responsible for any resulting damage to the computer or other electronic device, as well as for any loss or corruption of data that might occur as a result.
4. You are solely responsible for acquiring and maintaining a computer or other electronic device that can handle and access the Third-Party Software, including any necessary equipment such as a modem, and that you’re responsible for all costs associated with accessing the Third-Party Software.

CREDIT SCORE MANAGER:

You agree that by navigating beyond the Credit Score Manager tab in our Online Banking Service, entering your information and continuing beyond the “Agree and Continue” button, or by otherwise accessing or using the Credit Score Manager Third-Party Content, you instruct Simmons Bank to periodically obtain your credit report to use it for the following purposes:

To display your credit score information to you for educational purposes and to assist you in understanding how financial transactions affect your credit score;

To confirm your identity, such as to identify potential fraudulent transactions in your name; and

To offer our products and services to you.

 

31. NOTICES AND COMMUNICATION.

Except as expressly provided otherwise in this Agreement, we may provide notices, disclosures, agreements, periodic statements and other information regarding your Accounts and Online Banking Services (collectively "Account-Related Information") electronically, through the mail or by other means. We’ll send this information to the postal or electronic address ("Electronic Address") of the owner of the applicable Account or Online Banking Service as reflected in our records, unless you specify a different postal or Electronic Address.

Electronic Addresses include email addresses, other Internet addresses, text messaging numbers or other electronic access addresses provided to us in accordance with this Agreement. Any Account-Related Information will be considered “sent” on the first Business Day following the date on the communication.

Account-Related Information held for pickup or posted on our website will be deemed to be delivered to/received by you when we make it available for pick-up, display it to you or send notice in accordance with this Agreement that it is posted on the Online Banking Service. The person receiving the notice has to provide copies of all Account-Related Information to all joint owners or other persons with access to the applicable Account or Online Banking Service.

We can communicate all Account-Related Information to you through the U.S. Postal Service or overnight courier, at our sole option.

Unless applicable law states otherwise, when we need to provide you with information in writing, we can send it electronically, either: 

1. To your Electronic Address; or
2. By posting the information to the Online Banking Service with a notice to your Electronic Address that it is available;
3. By posting the information to the Online Banking Service; or
4. To an online banking secure mailbox we establish for you, or other electronic means.

When you provide a phone number to us, you agree that you own or are authorized to provide the telephone number to us. You agree that we may use automatic dialing technology or artificial or prerecorded voice messages to call you or send text messages to you, even if the phone number is registered to a cell phone number or Voice over Internet Protocol service. You understand and agree we may place calls with informational, servicing, or collections messages about your Account.  Our calls and text messages to your cell phone number could result in your communication service provider’s charges to you.

You authorize us to send emails and text messages to others on your behalf, if needed to carry out your instructions regarding an Account or Online Banking Service. You confirm and agree that you have obtained consent from the person who owns or is the current subscriber of the email address or phone number to receive the communication. These communications may identify you by name and may state that we’re sending them on your behalf and according to your instructions.

If Account-Related Information documents are returned or electronic notifications are returned as undeliverable, we can stop sending Account-Related Information or electronic notifications to you until you provide a valid postal or valid email to us.

We may also:

1. Destroy Account-Related Information sent to you and returned to us as undeliverable.
2. Hold the Account-Related Information for your Account for you to pick up.
3. Stop sending the Account-Related Information through the current delivery method and use an alternative delivery method. For example, if we’re sending Account-Related Information to you via the U.S. Postal Service, and the information is returned to us as undeliverable on two or more occasions, we may attempt to deliver the information to your Electronic Address instead.
4. Suspend access to your Accounts or Online Financial Services.

If we hold Account-Related Information for you to pick up and it remains unclaimed for 60 days, we may send the Account-Related Information to the address reflected in our records for your Account or destroy it.

You agree to notify us immediately if you no longer own or you are no longer authorized to use or share your address, Electronic Address or phone number you previously provided to us. Address changes may be initiated:

1. At your request - you can instruct us to change the address or Electronic Address to which we send notices or Account-Related Information about your Account at any time.
2. If we get an address change notice from the U.S. Postal Service.
3. If another party in the business of providing correct address information notifies us that the address in our records no longer corresponds to your address.

We may act on instructions purportedly made on your behalf within a reasonable time after we receive them.

Unless you instruct us otherwise, we may change the U.S. Postal Service address or Electronic Address only for the Account(s) you specify, or for all or some of your other Account(s) with us.

Any notice you send us won’t be effective until we actually receive it and have a reasonable opportunity to act on it. If your Account has multiple Owners, we may send Account-Related Information to any one of them.

You assume the risk of loss in the mail or other transit. Any notice or Account-Related Information we send you will be effective when mailed, sent electronically, or otherwise made available to you.

You agree that:

1. We may satisfy our obligation to provide you with an annual copy of our privacy notice by keeping it available for review on our Website. 
2. We may call you and text you to service your Accounts, collect any amount you may owe or discuss our relationship, products and services with you, as described in this Section. If your only relationship with us is as a participant in an employer-sponsored retirement or deferred compensation plan, this paragraph won’t authorize us to make telephone calls or send text messages to discuss other products or services we offer. 
3. Information is deemed delivered to you if it is sent electronically as described in this Section.

 

32. AMENDMENTS.

The Bank may amend this Agreement at any time by adding, deleting, or modifying terms. If such an amendment changes any term(s) or condition(s) of this Agreement in a manner which would result in a greater cost or liability to you, or decrease or limit access to your Account(s), the Bank will notify you in advance. If you have not withdrawn your consent, you agree that we may send electronic change of terms notices to you in accordance with the Notice and Communications provisions of this Agreement. If we mail a paper copy to you, we will use your current address shown on the Bank’s records. If you do not agree with the change(s), you must notify us in writing prior to the effective date of the amendment that you wish to cancel your Simmons Online Banking service. You understand that by using Simmons Online Banking after you have been notified of such an amendment, and it becomes effective, you will have agreed to the amendment and are bound by its terms. Amendments or changes to this Agreement may be made by the Bank without prior notice to you if such amendments or changes do not result in higher fees, restriction in service, or increased liability to you.

 

33. ASSIGNMENT.

Simmons Bank may assign its rights and delegate its duties under this Agreement to a company affiliated with the Bank or to any other party. This Agreement is personal to you and you may not transfer or assign any of your rights or duties under this Agreement at any time.

 

34. MISCELLANEOUS.

You represent and warrant that you are who you claim to be; that you are the rightful owner of all Accounts for the purposes of the Simmons Online Banking service or that you are authorized to enter into this Agreement on behalf of such rightful owner; and that you are rightfully authorizing us to access the Accounts.

You agree that our rights and remedies arising out of any breach of your representations and warranties in this Agreement, the limitations on our liability and our rights to indemnification under this Agreement are continuing and shall survive the termination of this Agreement, notwithstanding the lack of any specific reference to such survivability in these provisions. Simmons Bank’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Simmons Bank’s right to subsequently enforce such provision or any other provisions of this Agreement.

This Agreement may be amended, or any of Simmons Bank’s rights waived, only if Simmons Bank agrees in writing to such changes, or you continue using the Simmons Online Banking service following receipt of notice of any changes proposed by Simmons Bank. All notices to you will be made in accordance with the Notice and Communications provisions of this Agreement. All notices to Simmons Bank must be made in writing and sent to Simmons Bank, Attention: Simmons Bank Online Banking Department, P.O. Box 7009, Pine Bluff, AR 71611-7009, via registered or certified mail.

You agree that Simmons Bank’s third-party service providers, may rely upon the provisions of this Agreement, including its disclaimer of warranties and any limitations of liability and that such third-party service providers are, for the purpose of this Agreement, third party beneficiaries to this Agreement with the power to enforce this Agreement.

 

35. ENTIRE AGREEMENT.

The most current version of this Agreement as it appears on Simmons Online Banking, including any amendments that we may make from time to time, is the entire agreement between you and Simmons Bank regarding your use of Simmons Online Banking, and it supersedes and replaces any prior discussions, understandings, and agreements, whether written or oral, between you and the Bank regarding Simmons Online Banking, and supersedes any marketing or similar material pertaining to Simmons Online Banking delivered to you in writing, verbally or obtained at any Bank Internet site or the site of any Internet Service Provider. This Agreement supplements any other agreements or disclosures related to your Account(s), including, but not limited to, the Bank’s Account Documentation. In the event of a conflict between this Agreement and any other agreement between you and the Bank concerning your Account(s), or any statements made to you by employees or agents of the Bank concerning your Account(s), this Agreement shall supersede and control. If any provision or part thereof in this Agreement is held to be invalid, illegal, void or unenforceable, then this Agreement shall be deemed automatically modified to the extent necessary to (1) make such provision or part thereof valid, legal, and enforceable and (2) as closely as possible maintain and accomplish the original intent of the provision or part thereof in question; and the remaining provisions, or other parts or applications of such provision, in this Agreement shall not be affected and shall remain in full force and effect.

 

36. NO SIGNATURE REQUIREMENTS.

When any payment or other on-line service generates items to be charged to your Account, you agree that the Bank may debit the designated Account, or the Account on which the item is drawn, without requiring your signature on the item and without any notice to you.

 

EXHIBIT A

JH DIGITAL BANKING TERMS OF USE

 

The primary provider for the online and/or mobile banking service you are using (the "Service") is Jack Henry & Associates, Inc. (the "JH", "we" or "us"). By enrolling in our Service, you agree to these terms of use (the "Agreement"). Please read this Agreement carefully before using the Service. The Service includes the Software and the App as defined below. This Agreement applies to both the consumer version of the Service and App ("Banno") and the business version of the Service and App ("Banno Business").  

By enrolling in, accessing or using the Service, you agree to be bound by this Agreement and all of its terms without change. This Agreement is between JH and you, the user. If you are using Banno Business on behalf of a company or other organization, such company or organization will also be considered a party to this Agreement and you represent and warrant that you have the authority to bind such company or organization to this Agreement. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS YOUR CLASS ACTION RIGHTS AND THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM JH.  

(i) General. JH is not the provider of any of the financial services available to you through the Service and JH is not responsible for any of the materials, information, products or services made available to you through the Service. You acknowledge and agree that JH is the owner of all right, title and interest in the online and/or mobile technology solution made available to you in the Service, including but not limited to any downloaded software and the computer programs contained in the Service, as well as any accompanying user documentation, and all subsequent copies, updates or versions, regardless of the media or form in which they may exist (together, the "Software").  

You may not use the Software unless you have first accepted this Agreement. Subject to the terms and conditions of this Agreement, we grant you a subscription to use the Software (in machine readable object code form only) in accordance with this Agreement and for the sole purpose of enabling you to use and enjoy the benefits of your financial institution’s services made available via the Software. This is not a sale or license of the Software. All rights not expressly granted to you by this Agreement are reserved by JH. Nothing in this Agreement will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This subscription may be terminated at any time, for any reason or no reason, by you or JH. Upon termination, you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or are otherwise in your possession or control. You will not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (iv) engage in any screen scraping or data mining of the Software;(v) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright; or (vi) use the Software to train any generative artificial intelligence application. The terms of this Agreement will govern any updates that replace and/or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern. You agree to use the Service, the App and the Software in compliance with applicable laws and for your own personal use only or, if you are a subscriber of Banno Business, only for your use on behalf of your business or organization for its internal business purposes.  

(ii) Privacy. JH may access personal information while you use the Service. JH may access records held by your financial institution for such information as your phone number, home address or email address. JH will use this contact information to alert you about Service-related events or actions that require your attention. If you grant permission to use phone information, JH will use the phone number to pre-populate forms that expect a personal phone number for contacting you. If you grant permission to use your device’s location, JH will use the data when checking for nearby branch and ATM locations. If you grant permission to use access photos, media or other files stored on your device, JH will use that information to add an image to a transaction, to attach a document to chat, and add a photo to your profile. If you grant permission to use a camera, JH will use it when taking a picture to add an image to a transaction or to capture images of a check that is being deposited or to add a photo to your profile. Our privacy practices regarding your personal information can be found in our privacy policy located at https://www.jackhenry.com/privacy-policy (the "JH Privacy Policy"). If you are a subscriber of Banno Business, business-to-business exceptions in certain privacy laws may apply to your information. In addition to the JH Privacy Policy, your financial institution maintains a privacy policy covering the personal and financial information related to your use of the financial institution’s services and products, including such information that may be gathered through use of this Service, such as the "Account Information" and "Registration Information" described below. A copy of that privacy policy is available from your financial institution. In the event of conflict between the JH Privacy Policy and your financial institution’s privacy policy, your financial institution’s privacy policy will control. Under applicable privacy laws, you may have certain rights such as the right to collect your personal information, to have your personal information deleted, and to opt-out of certain processing, sales, or sharing of personal information. Please see your financial institution's privacy policy if you wish to make any requests under these rights. JH acts as a processor or service provider to its financial institution customers who act as controllers of your personal information and are primarily responsible for handling such requests. We will cooperate with any privacy rights requests we receive from your financial institution. If you use the Service to make bill payments or engage in transactions with other companies, those companies should also have a privacy policy that addresses the use of your personal information and your privacy rights.  

(iii) Source of Information. The Service, at your direction, will retrieve your information maintained online by financial institutions and billers with which you have customer relationships, maintain accounts or engage in financial transactions and other log-in related information ("Account Information"). JH does not review, verify or analyze the Account Information for accuracy or any other purpose, but simply gathers, organizes and reports available Account Information to you. Technical difficulties may result in a failure to obtain data, a loss of data, a loss of personalized settings or other service interruptions. Account Information is timely only to the extent that it is promptly provided by the third-party sites. Account Information may be more complete or up to date when obtained directly from the third-party sites.  

(iv) Your Responsibility for Information. You are responsible for providing JH with accurate and updated (as necessary) account numbers, user names, passwords and other log-in related information ("Registration Information") so that the Service is able to access Account Information. If you become aware of any unauthorized use of your Registration Information, you should notify your financial institution immediately. Text messaging services may be provided by your financial institution. You and your financial institution are solely responsible for the content transmitted through text messages sent between you and your financial institution. You must provide source indication in any text messages you send (e.g., mobile telephone number, "From" field in text message, etc.) You are responsible for any text message fees charged by your wireless carrier.  

(v) Your Account. If you use the Service, you are responsible for maintaining the confidentiality of your Account and password and for restricting access to your device, and you agree to accept responsibility for all activities that occur under your Account or password. Make sure to log out of your Account when you are finished using the Service. If your status as a user of the Service is terminated, you will (i) stop using the Service and any information obtained from the Service, and (ii) destroy all copies of your account information, password and any information obtained from the Service. We encourage you to use strong passwords that use a combination of upper and lowercase letters, numbers and symbols, contain at least ten characters and are not used by you with other services or websites. You agree to provide accurate information when you register. You will immediately notify us of any breach of security or unauthorized use of your Account. We will not be liable for any losses or other damages caused by any unauthorized use of your Account. We may delete your Account and any data in your account at any time and move the location where we store your Account information in our sole discretion. We may suspend your Account and use of the Service at any time for any reason including any potential security threat or fraud. You grant us a perpetual, irrevocable, non-exclusive, sublicensable, transferable and royalty-free right to use, store, copy, transmit and modify any data you submit on the app and you represent and warrant to us that you have the right to provide such data.  

(vi) Rights You Grant to JH. By submitting data, passwords, user names, PINs, log-in information, materials and other Registration Information to JH through the Service, you are voluntarily supplying that content to JH for the purpose of providing the Service to you. By submitting such information to JH, you represent that you are entitled to submit it to JH for use for this purpose, without any obligation by JH to pay any fees. By using the Service, you expressly authorize JH to access your Account Information maintained by identified third parties, on your behalf as your agent. When you use the "Add Accounts" feature of the Service, you will be directly connected to the website for the third party you have identified. JH will submit information including user names and passwords that you provide to log you into the site. You authorize and permit JH to use and store the information submitted by you (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third-party sites for which you submit your information. You acknowledge and agree that when JH is accessing and retrieving Account Information from the third-party sites, JH is acting on your behalf and not on behalf of the third party. You acknowledge that certain risks are inherent in the transmission of information over the internet, and you agree that by using the Service you are assuming those risks.  

(vii) Links to Third Party Sites. The Service may contain hyperlinks to websites operated by parties other than JH or its affiliates. Such hyperlinks are provided for your reference only. We do not control such websites and are not responsible for their content. If we post hyperlinks to other websites, this does not mean that we endorse the material on such websites or associate ourselves with their operators. Your access to and use of such websites, including information, material, products and services on such website, is solely at your own risk. Furthermore, because the JH Privacy Policy is applicable only when you are on the Service or our website, once linked to another website, you should read that site’s privacy policy before disclosing any personal information.  

(viii) No Unlawful or Prohibited Use. As a condition of your use of the Service, you warrant to JH that you will not use the Service for any purpose that is against the law or prohibited by these terms. If you violate any of these terms, your permission to use the Service automatically terminates. You will not without our prior written permission use any computer code, data mining software, "robot," "bot," "spider," "scraper" or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy data or content found on the Service or accessed through the Service. You will not republish JH content or other content from the Service on another website or app or use in- line or other linking to display such content without our permission. You will not introduce viruses, spyware, malware, or other malicious code to the Service or interfere with the integrity or security of the Service. You will not use the Service for benchmarking purposes, use another Service user's account, reverse-engineer the Service or use the Service to develop any competing product or service. You will not identify us or display any portion of the Service on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights or refer to JH or the Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of the Service under this Agreement, without JH’s express written consent. If you are under the age of 13, you are not permitted to use the Service.  

(ix) Mobile Devices. To use the mobile app provided with the Service (the "App"), you must have a mobile device that is compatible with the App. We do not warrant that the App will be compatible with your mobile device. You are responsible for any message and data rates from your mobile service provider when you use the App. You must comply with all rules and regulations of your mobile service provider and the mobile app store from which you download the App. If you download the Mobile App from the Apple App Store, you acknowledge and agree that this Agreement is solely between you and JH, not Apple, Inc. ("Apple") and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the Apple Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the App. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the App. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the Service. You acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, JH, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the App and compliance with the terms and rules of the Apple App Store, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the App against you as a third-party beneficiary. If you download the App from the Google Play Store: (i) you acknowledge that the Agreement is between you and JH only, and not with Google, Inc. ("Google"); (ii) your use of App must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the App; (iv) JH, and not Google, is solely responsible for the App; (v) Google has no obligation or liability to you with respect to the App or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to the App.  

(x) Consent to Use of Data. You agree that JH may collect and use data and information about you, your device, system and application software, and peripherals, that is gathered through your use of the Service to facilitate the provision of software updates, product support, product enhancements and other services (if any) related to the Service. JH may use this information, as long as it is in a form that does not personally identify you, to improve its products or provide services or technologies.  

(xi) Disclaimer of Warranty. THE SERVICE AND THE APP ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON- INFRINGMENT. NO WARRANTY IS PROVIDED THAT THE SERVICE OR THE APP WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SERVICE OR THE APP WILL BE UNINTERRUPTED OR ERROR FREE. YOUR USE OF THE SERVICE, THE APP AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  

(xii) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL JH BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR THE APP, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, JH'S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR THE APP WILL NOT EXCEED IN THE AGGREGATE THE SUM OF $250. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  

(xiii) Analytics. To assist JH in maintaining and improving this application, JH uses multiple analytics and logging platforms to gather information about usage of the Service. For example, it tracks how many visitors the Service has, which screens they spend time on, what kinds of operating systems and devices they use, and how they found the Service. Analytics platforms generally do not track, collect or upload any data that personally identifies an individual (such as a name, email address, account number or billing information), or other data which can be reasonably linked to such information, although they may use anonymized identifiers. The information helps JH improve the performance of this Service for you. More information on analytics services, including analytics cookies, can be found in the JH Privacy Policy.  

(xiv) Dispute Resolution. You agree that: (1) Any claim, dispute, or controversy (whether in contract, tort, or otherwise) arising out of, relating to, or connected in any way with the Service or this Agreement will be resolved exclusively by final and binding arbitration conducted pursuant to the American Arbitration Association ("AAA") Procedures for Consumer-Related Disputes in conjunction with the AAA Commercial Arbitration Rules (if and as applicable depending on the amount in controversy); (2) This arbitration agreement is made pursuant to a transaction governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16; (3) The arbitration will be held at the AAA regional office nearest to you; (4) The arbitrator’s decision will be controlled by the terms and conditions of this Agreement; (5) The arbitrator will apply Missouri law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law; (6) There will be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims and the arbitrator will not consolidate or join the claims of other persons or parties who may be similarly situated; (7) The arbitrator will not have the power to award punitive damages against any party; (8) If the administrative fees and deposits you are required to pay under the AAA rules exceed $125, and you are unable to pay the additional fees and deposits, JH retains the right to forward them to the AAA on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, JH retains the right to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost- prohibitive; and (9) If any part of this Arbitration Provision is deemed to be invalid or otherwise unenforceable or illegal, the balance of this Arbitration Provision will remain in full force and effect and will be construed in accordance with its terms as if the invalid or illegal provision were not contained herein. You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class-action basis, and that You have expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration in accordance with the provisions of this paragraph.  

(xv) Miscellaneous. This Agreement constitutes the entire agreement between you and JH concerning the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of Missouri, excluding that body of laws pertaining to conflict of laws. If any provision of that portion of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. Failure by JH to insist upon strict enforcement of any provision of this Agreement will not be construed as a waiver of any provision or right. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, the App or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred If any of these terms will be deemed invalid, void, or for any reason unenforceable, that term will be deemed severable and will not affect the validity and enforceability of any remaining term. You may have greater rights, or some of the provisions may be prohibited, by virtue of state or federal consumer protection laws. In such a case, to such extent, the subject provisions will not apply to you. This Agreement and all related documentation are and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly waived and excluded.