This General Terms Section is a part of your Account Agreement for your Deposit accounts, World Markets Accounts, and non-FDIC insured Metals Select Accounts. Your Account Agreement is a contract establishing the rules controlling your personal accounts with EverBank. By signing (manually, electronically, or otherwise) or submitting (electronically, verbally or otherwise) an EverBank Account Application or other form when you open or request an account, product or service, or by otherwise opening or using an account with us or a product or service from us, you agree that you (an your heirs, successors, representatives, agents, beneficiaries or assignees, if any) will be bound by the terms of your Account Agreement together with all amendments thereto in effect from time to time. Also included within your Account Agreement are the Specific Terms sections applicable to your Accounts and the Account Fee Schedule applicable to your Accounts. In the event that any provision of the Account Agreement is found to be unenforceable according to its terms, all remaining provisions will continue in full force and effect.
2.1.1. GENERAL DEFINITIONS AND MEANINGS
As used in this Account Agreement, the words "you," "your," "account owner," and "account holder" refer to each person opening or authorized to control the account, and each Authorized Signer of the account, or anyone else with the authority to exercise limited control over the account. The words "we," "us," "our," and "EverBank" refer to EverBank and to any successor or assignees. The headings in this Account Agreement are only for convenience. Unless it would be inconsistent to do so, words and phrases used in this Account Agreement should be interpreted to mean that the singular includes the plural and the plural includes the singular.
2.1.2. LIABILITY
You agree for yourself (and for the person or entity you represent, if you sign as a representative of another) to the terms of this Account Agreement. You authorize us to deduct all charges listed in this Account Agreement (including, without limitation, those fees set forth in the "Deposit Account Fee Schedule" and "Metals Select Account Fee Schedule" that are incorporated into this Account Agreement), or otherwise disclosed to you, directly from your account balance as accrued. You will pay any additional reasonable charges for services you request that are not covered by this Account Agreement.
2.1.3. LIMIT OF LIABILITY
You agree that the amount of any claim you have against us in connection with any account or banking transaction with us, whether brought as a warranty, negligence, wrongful dishonor, or other action, is subject to reduction on the basis of failure on your part (or on the part of your agents) to use reasonable care. YOU FURTHER AGREE THAT OUR LIABILITY WITH RESPECT TO ANY SUCH CLAIM WILL BE LIMITED TO THE FACE VALUE OF AN ITEM IMPROPERLY DISHONORED, OR THE ACTUAL VALUE OF ANY DEPOSITS NOT PROPERLY CREDITED, AND THAT NO LIABILITY FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WILL EXIST OR BE ASSERTED BY YOU AGAINST US.
2.1.4. ASSIGNMENTS/TRANSFERS
Your rights under this Account Agreement may not be transferred by operation of law or otherwise, and your accounts may not be transferred or assigned by you, without our prior consent or as required by law. However, your obligations under this Account Agreement shall be binding upon all transferees, assignees and your estate or personal representatives. We may transfer your accounts to another depository institution, and assign this Account Agreement and our related rights and obligations, at any time and without prior notice to you or your consent, except as may be required by law.
2.1.5. BUSINESS DAYS
For the purposes of this Account Agreement, every day is a business day ("Business Day") except Saturdays, Sundays, and federal holidays.
2.1.6. DEPOSITS
We may refuse, accept for collection only, or return all or part of any deposit. We will give you only provisional credit until collection is final for any item, other than cash, that we accept for deposit (including items drawn "on us"). Actual credit for deposits of, or payable in, foreign currency will be at the exchange rate in effect on final collection in U.S. dollars. Interest is paid only on collected funds, unless otherwise provided by law or our policy. We are not responsible for transactions by mail or an outside depository (including any deposit made at an automated teller machine (ATM) that we do not own or operate) until we actually record them. We will treat and record all transactions received after our "daily cut-off time" on a Business Day we are open, or received on a day we are not open for business, as if initiated on the next following Business Day that we are open. Please refer to "Funds Availability" for additional information on cut-off times for your accounts. For deposits made at ATM terminals, see the "Funds Availability " disclosure.
2.1.7. ENDORSEMENTS
We may accept for deposit any item payable to you or your order, even if the item is not endorsed by you. We may endorse and/or collect items deposited to your account without your endorsement but may, at our option and in our sole discretion, require your personal endorsement prior to accepting an item for deposit. Each of you authorizes each other person signing the signature card or account application to endorse any item payable to you or your order for deposit to this account or any other transaction with us. You warrant that all endorsements on items deposited by you are genuine.
2.1.8. WITHDRAWALS
Unless clearly indicated otherwise on the account records, any of you, acting alone, who signs (manually, electronically, or otherwise) in the space designated for signatures on the signature card or on the account application as an Authorized Signer, may withdraw or transfer all or any part of the account balance at any time. We may charge your account for a check even though payment was made before the date of the check, unless we have received notice of the postdating as required by this Account Agreement (please refer to "Postdated Checks"). We may, in our sole discretion, refuse any withdrawal or transfer request that you attempt on forms not approved by us, by any method we do not specifically permit, which is greater in number than the frequency permitted (see "Transaction Limitations" in the "Specific Terms" section related to your account), or which is for an amount greater or less than any withdrawal limitations. Even if we honor a non-conforming request, we may treat continued abuse of the stated limitations (if any) as your act of closing the account. We will use the date the transaction is completed by us (as opposed to the date you initiate it) to apply the frequency limitations. The fact that we may honor withdrawal requests that overdraw the available account balance does not obligate us to do so later. See "Funds Availability" for information about when you can withdraw funds you deposit. For those accounts to which "Funds Availability" does not apply, you may ask us when you make a deposit when those funds will be available for withdrawal. We may require not less than seven days' notice in writing before each withdrawal from any interest-bearing deposit account. Withdrawals from a time deposit account prior to maturity or prior to any notice period may be further restricted and may be subject to penalty. See the "Specific Terms" section related to your account for information on early withdrawal penalties of time deposits.
2.1.9. SUB-ACCOUNTS
We may establish, on your behalf, a master account, and two sub-accounts. All information made available to you about your account will be at the master account level. The sub-accounts will be comprised of a savings account and a transaction account. Both sub-accounts will earn the same rate of interest. At the beginning of each statement period, we will allocate funds between the two sub-accounts, as we deem appropriate. Checks received by us, drawn against your master account, are presented for payment against the transaction sub-account. Funds are transferred from the savings sub-account to cover checks presented against the transaction sub-account as needed. On the sixth transfer from the savings sub-account during a given statement period, all of the funds on deposit in the savings sub-account will be transferred to the transaction sub-account.
2.1.10. TRANSACTION LIMITATIONS
All withdrawals and transfers are subject to availability of funds in your account and to any special limitations for the particular type of account described in this Account Agreement, including in the "Specific Terms" section related to your account or in other disclosures you receive. ATM withdrawals are limited to $600 per day, PIN Point of Sale ("POS") purchases are limited to $1,500 per day, and signature POS withdrawals are limited to $2,500 per day. ATM and POS transactions may also be limited in amount by the ATM owner or merchant.
2.1.11. OWNERSHIP OF ACCOUNT AND BENEFICIARY DESIGNATION
These rules apply to your account depending on the form of ownership and any beneficiary designation specified on our account records. We make no representations as to the appropriateness or effect of the ownership and beneficiary designations, except as they determine to whom we pay the account funds. Some forms of account ownership may not be available on all types of accounts.
2.1.11.1. Individual Account: An account in the name of one person only, primarily used for personal, family or household purposes. Funds in the account may be paid only to that individual or to someone to whom that individual has given a power of attorney, or as otherwise may be required or permitted by law.
2.1.11.2. Joint Account with Survivorship (and not as Tenants in Common): An account in the name of two or more persons, primarily used for personal, family or household purposes. Each of you intends that when you die, the balance in the account (subject to any previous pledge to which we have agreed) will belong to the survivor(s). If two or more of you survive, the survivors will own the balance in the account as joint tenants with survivorship and not as tenants in common. By opening a joint account with survivorship, each of you agrees that any one of you may make withdrawals without the signature of the others. Each of your appoints each other account owner with power of attorney to endorse any check or draft payable to any one or more of you and to cash or deposit the same.
2.1.11.3. Tenants by the Entirety: An account in the name of two married persons, primarily used for personal, family or household purposes. By allowing you to title your account(s) as "tenants by the entirety," we make no representation and express no opinion as to the applicability of the designation to your account or the funds placed in the account. Each of you intends that, when you die, the balance in the account (subject to any previous pledge to which we have agreed) will belong to the survivor. By opening an account as tenants by the entirety, each of you agrees that any one of you may make withdrawals without the signature of the other. Each of you appoints each other account owner with power of attorney to endorse any check or draft payable to any one or more of you and to cash or deposit the same.
2.1.11.4. Custodial Account: Generally, a custodial account is established under the applicable state Uniform Transfers (or Gifts) to Minors Act, and used for the transfer of money to a minor. The transfers are complete and irrevocable and the funds in the account belong to the minor but are controlled by, and listed in the name of, the custodian. The law of the state where the account is maintained determines when the minor reaches the age of majority. Until the minor reaches the age of majority, withdrawals are paid only upon the signature of the custodian or as required or permitted by law. The minor has unconditional use of the account when he or she reaches the age of majority. Before that time, the account may be accessed only by the custodian (or successor custodian), and the funds must be used for the benefit of the child. We, however, have no duty or agreement whatsoever to monitor or ensure that the acts of the custodian (or successor custodian) are for the minor's benefit. The custodian is the only party authorized to act on the account.
2.1.11.5. Trust and other Fiduciary Accounts: A fiduciary account is one that is established by a fiduciary pursuant to a written trust agreement or court order, which shall include Letters Testamentary/Administration. A fiduciary account can be set up by one or more fiduciaries as account holder(s) for one or more beneficiaries. If the fiduciary account is being established for a trust, we may require the account holder to provide a full copy of the written trust agreement, a trustee's certificate in a form approved by us, and any other evidence of the trust's existence deemed appropriate by us in our sole discretion. By accepting the written trust agreement, we in no way assume any responsibility to review or comply with the terms of the trust agreement. We shall not accept responsibility to act as a trustee or successor trustee under any circumstances, regardless of any trust agreement which provides otherwise. Opening other fiduciary accounts will also require documentation acceptable to us regarding the existence of the relationship and the authority of the fiduciary. No beneficiary shall have any rights regarding the account. Upon the death, incapacity or replacement of a fiduciary, as shown by evidence satisfactory to us, we shall rely upon the instructions of the successor fiduciary(ies).
Fiduciary accounts may also be used for estate administration, guardianships, and other court-ordered accounts. Documentation satisfactory to us must be presented to us before this type of account will be opened. For an account established by court order, a court order may be required to disperse funds from the account. If more than one account holder is named as fiduciary on the Account, we shall act on the signature of any one account holder (see Liability section above), regardless of whether any other account holder(s) named on the Account as fiduciary is incapacitated or deceased. We shall have no duty to monitor the Account to determine the status of the fiduciary or beneficiaries, or whether the fiduciary complies with his or her duties.
2.1.11.6. Irrevocable Trust: If the account is established for an irrevocable trust, the account holder must provide a copy of the written trust agreement and trustee certification or other evidence satisfactory to us of the written trust agreement's existence. By accepting the written trust agreement, we in no way assume any responsibility to comply with the terms of the trust agreement. We shall not accept responsibility to act as a trustee or successor trustee under any circumstances, regardless of any trust agreement that, provides otherwise.
2.1.11.7. Payable-on-Death (POD) Account: For the purposes of this section, a Single POD Account means a voluntary and revocable POD, Totten Trust, or similar trust account opened by one person who names another as payee or beneficiary. For the purposes of this section, a Joint POD Account means a voluntary and revocable POD, Totten Trust, or similar trust account opened by two or more persons who name another as payee or beneficiary. Beneficiaries or payees cannot withdraw funds from Single or Joint POD Accounts unless:
- all persons creating the account die;
- the beneficiary or payee is then living; and
- any required release-of-funds procedures have been completed.
If two or more named beneficiaries survive the death of all persons creating the Single or Joint POD Account, such survivors will own the account in equal shares, without right of survivorship. The person(s) creating a Single or Joint POD Account reserve the right to take any of the following actions at any time:
- change beneficiaries or payees;
- change account types;
- withdraw all or part of the deposit; and
- close the account.
2.1.12. POWER OF ATTORNEY
If you wish to grant someone power of attorney to transact business on your account on your behalf, you will need to provide a document that is satisfactory to us. We have no obligation to review the legal validity of any power of attorney, and you agree that we are entitled to rely on any power of attorney that you provide to us. However, unless prohibited by law, we may refuse, with or without cause, to honor powers of attorney that you grant to others. If you do provide us with a power of attorney document, we may, at our option, accept the attorney-in-fact's authority on your behalf without question until we receive written notice that the power of attorney has been revoked or terminated and we have had a reasonable time to act on such written notice.
2.1.13. STOP PAYMENTS
At your request and risk, we may accept a written, electronic, or oral stop-payment order on any check drawn on, or Automated Clearing House (ACH) debit from, your account (including a temporary stop payment order for a postdated check). Any stop order must specify the account number, the check number or the ACH serial number, and the amount, date of the check or ACH debit, and the payee. You acknowledge that if you provide us with incorrect information, even if the information is a close approximation of the actual information, we will not be liable for payment of the check or debit. A stop-payment order must be given in the manner required by law and must be received by us in time to give us a reasonable opportunity to act on it. Without limiting the foregoing, we will not be liable for cashing a check or allowing a debit within one Business Day of receiving a stop-payment order for the check or debit. We will honor a stop-payment request by the person who signed the particular item, and by any other person, even though such other person did not sign the item, if such other person has an equal or greater right to withdraw from the account than does the person who signed the item in question. Only the person who initiated the stop-payment order may release the stop-payment request. You may be required to confirm in writing all oral stop-payment orders. If you orally contact us to place a stop payment, you must put your request in writing and deliver it to us within 14 calendar days. Your original oral order will be binding on us for only 14 calendar days, after which we may terminate the oral stop-payment, unless we receive your written confirmation within that period. In any case, stop-payment orders will be effective for only six months unless renewed by a new stop-payment order request as set forth above. You agree to hold us harmless for any check or debit on which you have requested a stop-payment; and to indemnify us against any loss, expense, and cost incurred due to our refusal to pay such check or debit. If an official check is lost or stolen and you request that a stop-payment order be placed on such check, we may place such a stop-payment order under certain circumstances. You must provide to us a written statement of the loss and must provide an indemnification in a form acceptable to us that will protect us in case the original check is presented. We may delay reimbursing you for the original check until we are reasonably sure that the original check will not be presented. The placement of a stop-payment on an official check is solely at our discretion. If you place a stoppayment order, you agree to pay a fee for each stop-payment, in the amount set forth in the "Account Fee Schedule."
2.1.14. POSTDATED CHECKS
We may pay any checks or other items presented against your account without regard to the date of the item. In order to ensure that we do not pay a postdated check, you may place a stop-payment on the postdated check by complying with our stop-payment policy. If you do not provide appropriate notice to us of a stop-payment, you acknowledge and agree that we are under no obligation to verify the date of the check. You also authorize us to pay the check and debit your account for the amount, even if the check is presented for payment prior to the date written on the check. In addition, we may return, at our sole discretion, the postdated check. You also acknowledge and agree that we will not be liable to you or any payee or payor if we return a postdated check, or if we pay a postdated check drawn on your account when you have not provided appropriate advance notice to us of the postdated check.
2.1.15. STALE-DATED CHECKS
We are not obligated to pay a check presented for payment more than six months after its date, but we may pay such a check and charge your account without liability, even if the presentation occurs after the expiration of a stop-payment order. If you do not want us to pay a stale-dated check, you must place or renew a stop-payment order on the check in the manner we describe in this Account Agreement.
2.1.16. INSUFFICIENT FUNDS AND RETURNED DEPOSITED ITEMS
You agree to be jointly and severally liable, in an individual capacity, for any account shortage resulting from charges, overdrafts (whether created by check, in-person withdrawal, ATM withdrawal, automated clearing house transaction, debit card transaction, other electronic means or otherwise), or returned deposited items, including shortages within or above your approved credit limit, whether caused by you, another with access to your account, or by a person that provided you an item that is deposited to your account but returned by us. You have no right to defer payment of this liability, and you are liable regardless of whether you signed the item, requested the debit or withdrawal, or benefited from the charge, overdraft, or returned item. Your liability includes our costs to collect any account deficit, including, to the extent permitted by law, our court costs and reasonable attorneys' fees. If a check you write or any other transfer or withdrawal request is presented for payment against your account, or if we otherwise receive notice of such check, transfer, or withdrawal request, and there are not sufficient funds available in your account (due to insufficient funds, uncollected items, or otherwise), we shall have the authority, in our sole discretion, to either (a) make payment in accordance with such check, transfer, or withdrawal request in any order at our option; or (b) return the check, transfer, or other withdrawal unpaid. In either case, we are not liable to you for doing so. If we decide to pay the check, transfer, or withdrawal request, you agree to reimburse us immediately for the amount of the overdraft, plus the Insufficient Funds (NSF) Item fee in the amount stated in the "Account Fee Schedule," even if the transfer or withdrawal request was made by an Authorized Signer other than you. If we decide not to pay the check, transfer, or withdrawal request, we will charge you an Insufficient Funds Item fee. We may also close your account without notice unless notice is required by law. Should we decide to pay an overdraft, we will not be obligated to do so again in the future. In addition, if you deposit an item to your account that we return for non-payment, you are obligated to pay us the Returned Deposited Item fee in the amount as stated in the "Account Fee Schedule" in this Account Agreement. You are responsible for reimbursing us for all overdrawn checks or other withdrawal, transfer, or debit requests, regardless of when or why they were returned, and for all Insufficient Funds (NSF) Item and Returned Deposited Items fees. This liability is due immediately, and can be deducted directly from the account balance whenever sufficient funds are available including deposits that may be received from the Social Security Administration. We encourage you to make careful records and practice good account management. This will help you to avoid writing checks or drafts without sufficient funds and incurring the resulting fees.
2.1.17. MONEY MARKET OVERDRAFT PROTECTION
You may use your EverBank money market account to fund overdrafts on your checking account. To use your money market account for overdraft protection, you must request this feature. If you elect to use your money market account as overdraft protection for your checking account, we will advance funds from your money market account to your checking account when any debit on your checking account is presented for payment in an amount in excess of the available funds in your checking account to pay the check ("Overdraft Amount"). Transfers from your money market account will be made in the exact amount necessary to cover the Overdraft Amount provided. However, we are not obligated to transfer such funds, and we may dishonor the debit, if such transfer would cause you to overdraw your money market account. In addition, each transfer of an Overdraft Amount will be considered a transaction subject to the transaction limitations on your money market account and you may incur fees and other penalties for exceeding the allowable transactions on your money market account. See the "Specific Terms" section related to your account for transaction limitations. See the "Account Fee Schedule" for the applicable fees.
2.1.18. TELEPHONE TRANSFERS
A telephone transfer of funds from one of your accounts with us to another account with us, if otherwise arranged for or permitted, may be made by the same persons and under, the same conditions generally applicable to withdrawals made in writing, including any limitations on the number of transfers per month as disclosed for your account in the "Specific Terms" section related to your account.
2.1.19. AMENDMENTS AND TERMINATION
We may change any term of this Account Agreement at any time. Rules governing changes in interest rates are provided separately. For other changes, we will give you reasonable notice in writing or by any other method permitted or required by law. We may also close your deposit account(s) with us at any time, upon reasonable notice to you and tender the account balance to you by mail. If we believe that it is necessary to close your account immediately in order to limit losses by you or us, we may close your account prior to providing notice to you. Notice from us to any one of you is notice to all of you.
2.1.20. SIGNATURES
2.1.20.1. Signature Card: When you open an account with us, you will be required to sign a signature card. The signature card is one of the methods we use to confirm your authorization for an account and the transactions conducted on the account. We require that you and anyone whom you authorize to conduct transactions on your account sign the signature card for, at a minimum, the first account you open with us. If we do not receive a signed signature card within 30 days of the date your initial deposit is received, we reserve the right to restrict certain transactions on your account. These transaction restrictions may include, but are not limited to, restrictions on wire transfers, official check requests, nonproprietary ATM transactions, check or other debit activity. We also reserve the right to close the account if a signature card is not signed by all account owners within 60 days. Your signature card authorizes us to open additional accounts for you in the same name as the account holders on the signature card, when we receive further applications from you or requests for additional accounts. For a joint account, each of you signing the signature card for a joint account authorizes your joint account holder to open additional joint accounts in your names without any additional signature from you.
2.1.20.2. Authorized Signer: Authorized Signers are merely designated to conduct transactions on the account owner's behalf. We have no obligation to monitor transactions conducted by an Authorized Signer to ensure or confirm the transactions are made on the account owner's behalf.
2.1.20.3. More than One Signature Required: Generally, we do not accept accounts that require more than one signature. We may, however, in our sole discretion, permit an account that requires two authorized signatures or two personal identification numbers (PINs) to make withdrawals, transfer funds, or otherwise transact business on the account. The acceptance of such an account authorization process must be given in writing by us, subject to our thencurrent procedures for such accounts.
2.1.20.4. Restrictive Legends: We are not required to honor any restrictive legends on checks that you write, unless we have agreed in writing to the restriction. Examples of restrictive legends are "must be presented within 90 days" or "not valid for more than $1,000.00." We are not responsible for any losses, claims, damages, or expenses that may result from placement of these or other special instructions on checks, unless we have agreed in writing to such instructions or restrictions, and in such case our liability to you is limited as provided in this Account Agreement. We may, but are not obligated to, pay or accept items bearing restrictions or notations. You agree that if you write or accept an item with such restrictions or notations, such restrictions or notations are between you and the payee, payor, endorser, or drawer, as the case may be, and such shall have no effect on us.
2.1.21. CUSTOMER RESPONSIBILITIES
You agree to exercise reasonable control over all bank checks, unused checks, time deposits or CDs, PINs, passcodes or other access codes or devices, Check Cards, and any other item, instrument, or cards related to your account. You agree to notify us immediately if any of these things is or may have been lost, stolen, or used without your authorization, or if you believe there is an error on your periodic statement. We may issue replacements for lost or stolen checks, CDs, PINs, Check Cards, or other items, instruments, or cards, but only after you have provided such proof and security or indemnification as we may require. In addition, you acknowledge that we may have to close your account to help prevent future losses.
2.1.21.1. Checks and Items other than Electronic Fund Transfers: You must review your statements, checks, confirmations, debit slips, items, and other records sent or made available to you with reasonable promptness, which you agree is within 14 days of the statement date or the date the checks, confirmations, debit slips, or other items or records were sent to you. You must notify us of an unauthorized transaction, signature, or alteration on a check, confirmation, draft, debit memo, withdrawal slip, or any other item or withdrawal request within 14 days after we sent or made available to you either a statement reflecting the unauthorized transaction or a copy of the item or other withdrawal request. If you fail to notify us within this time period and we also establish that we suffered a loss due to your failure, you cannot assert any unauthorized signatures or alterations by the same wrongdoer on items or other withdrawal requests paid by us after the reasonable time mentioned above elapses, but before we receive your notice. We lose these protections if we fail to exercise ordinary care, provided that reasonable care includes the use of automated check processing equipment in the handling of checks, even if that results in paying an item or other withdrawal request with an unauthorized signature or alteration on the face of the item or other withdrawal request. If you do not notify us of an unauthorized transaction, signature, or alteration on a check, confirmation, draft, debit memo, withdrawal slip, or any other item or withdrawal request within 60 days after we sent or made available to you the statement or the items or other withdrawal requests, or if you do not notify us within one year of alterations or any unauthorized endorsement on the back of an item or other withdrawal request, you cannot assert the unauthorized transaction, signature, or alteration against us.
2.1.21.2 Electronic Funds Transfers: See the Electronic Funds Transfer Disclosure and Agreement in this Personal Terms and Disclosures Booklet for your responsibilities for electronic fund transfers.
2.1.22. ADDRESS OR NAME CHANGES
You are responsible for notifying us of any change in your address, e-mail address, or name, and of any changes in your Authorized Signers. Informing us of your address or name change on a check reorder form is not sufficient. Unless we agree otherwise, at least one of the account owners must make a change of address, phone number, name, or Authorized Signer in writing. We will attempt to communicate with you only by use of the most recent address you have provided to us. You agree that any notice or communication sent to you at the address in our records shall be effective unless we have received an address change notice from you and we have had a reasonable time to act on it.
2.1.23. DIRECT DEPOSIT AND ELECTRONIC TRANSFERS
If, in connection with a direct-deposit or electronic transfer, we deposit any amount in an account that should have been returned to the Federal Government, financial institution, or other third party, for any reason, you authorize us to deduct the amount of our liability to the Federal Government, financial institution, or other third party from the account or from any other account you have with us, without prior notice and at any time, except as prohibited by law. We may also use any other legal remedy to recover the amount of our liability.
2.1.24. SETOFF
If you ever owe us or any of our affiliates any money as a borrower, guarantor, depositor or otherwise, and it becomes due to us, or if we believe that the amount may be owed to us even if it is ultimately determined that the amount is not owed, we have the right under law (called "setoff") and under this Account Agreement to use the money from any of your accounts or other assets with us to pay the debt. Without limiting the foregoing, this right of setoff can arise from your failure to make sufficient deposits to cover any insufficient funds in your account(s) or if you otherwise fail to timely pay your debts to us or one of our affiliates. If we do exercise this right of setoff, it will be exercised against your accounts and assets in the following order of priority to the extent permitted by law: (a) available Overdraft Protection (if applicable), (b) liquid assets in another of your accounts with us or with any of our affiliates, (c) any matured certificate of deposit (CD) awaiting rollover or payment to you, (d) any other CD held with us, and (e) any fully paid securities in any account held with us or one of our affiliates. Refer to "EverBank Asset Manager Service - Important Information," in this Account Agreement for further information on our right of setoff with respect to any of your securities carried at the clearing agent of EverTrade Direct Brokerage, Inc. We may exercise this right of setoff without prior notice to you when permitted by law.
We may setoff the funds in your accounts or other assets with us against any due and payable debt owed to us now orin the future by any of you (any of the account or asset owners) having the right of withdrawal in the accounts or rightto the asset, to the extent of such person's or legal entity's right to withdraw or obtain the asset. We may use the money from your accounts to pay the debt even if our withdrawal of the money from your accounts results in a loss of interest, an interest penalty, dishonor of checks, or transaction charges. You understand and agree that any such transaction charges will be in addition to any fees assessed to your account for insufficient funds. Additionally, you understand that you may be subject to monetary penalties if a CD, which has not matured, must be liquidated to cover any overdraft.
In the case of a partnership or joint account, each partner or joint owner of the account agrees that we may use the money in the partnership or joint account to satisfy any one of their individual obligations to us. Similarly, each partner or joint owner agrees that we may use the money in his or her individual accounts to satisfy obligations in the joint account or partnership account. If the debt arises from a note, "any due and payable debt" includes the total amount of which we are entitled to demand payment under the terms of the note at the time we setoff, including any balance the due date for which we properly accelerate under the note.
This right of setoff does not apply to this account if: (1) it is an IRA or other tax-deferred retirement account or (2) the debtor's right of withdrawal to the account or access to another asset held with us only arises in a representative capacity. You agree to hold us, our affiliates, and each of our respective officers, directors, employees and agents harmless from any claim or liability arising as a result of our exercise of our right of setoff.
2.1.25. FACSIMILE SIGNATURES
Unless you make advance arrangements with us, we have no obligation to honor facsimile signatures on your checks or other orders or transfer or debit requests, but we may honor facsimile signatures in our sole discretion. If we do honor items containing facsimile signatures, you authorize us, at any time, to charge you for all checks, drafts, or other orders or transfer or debit requests for the payment of money that are drawn on us. You give us this authority regardless of by whom or by what means the facsimile signature(s) may have been affixed, so long as it resembles the facsimile signature specimen filed with us and contains the required number of signatures for this purpose. You must notify us at once if you suspect that your facsimile signature is being or has been misused.
2.1.26. FDIC INSURANCE
Funds in your deposit account(s) with us are insured by the Federal Deposit Insurance Corporation (FDIC) up to the limits established by the FDIC and backed by the full faith and credit of the United States. The total amount of insurance coverage you have at EverBank depends on the number of accounts you have with us and the ownership of those accounts. If you would like additional information on FDIC insurance, you may ask us or contact the local office of the FDIC. If your deposit is held in a currency other than United States dollars, FDIC deposit insurance does NOT insure against any loss in the value of your account due to foreign currency fluctuations. The amount of deposit insurance available for funds denominated in a foreign currency will be determined and paid in the United States dollar equivalent of the foreign currency, as the value of such foreign currency is determined by the FDIC, on the institution's date of default.
EverBank Metals Select products are NOT deposits of EverBank, are NOT insured by the FDIC or any other government agency and the value of the holdings are not guaranteed, and are subject to significant risk, including the possible loss of principal due to market fluctuations.
2.1.27. TAXPAYER IDENTIFICATION NUMBER; BACKUP WITHHOLDING/TIN CERTIFICATION
Federal law requires us to obtain the Taxpayer Identification Number (TIN) applicable to all accounts. For individuals, this is your Social Security Number (SSN) or Individual Taxpayer Identification Number; for legal entities, this is your Employer Identification Number (EIN). If you are a sole proprietor or a single-owner limited liability company, you may use your SSN or EIN.
Federal tax law may require us to report to the Internal Revenue Service (IRS) interest and other payments we make to you from time to time, and to include your TIN. Therefore, we require you to provide us with your TIN and to certify that it is correct. In some circumstances, federal law requires us to withhold and pay to the IRS, on your behalf, a percentage of the interest earned on funds in your account(s) as federal income tax. This is known as backup withholding. We will not have to deduct backup withholding from your interest if, when you open your account, you certify your TIN and certify that you are not subject to backup withholding due to underreporting of interest. There are special rules if you do not have a TIN but have applied for one, if you are a foreign person, or if you are exempt from the reporting requirements. We may subsequently be required to begin backup withholding if the IRS informs us that you supplied an incorrect TIN or that you underreported your interest income.
2.1.28. CREDIT VERIFICATION AND CONSUMER REPORTS
By requesting to open an account with us or adding a new service to an existing account, or by agreeing to be a signer on an account or obtaining any other service from us, you (and, if acting in a representative capacity, individually for such entity or person that you represent) agree that we may obtain credit and employment information by any means, including obtaining information from check or credit-reporting agencies and/or from other sources. You also agree that we may obtain consumer reports (credit reports) for any reason on any of you from time to time in the future when updating, renewing, or extending your account. We may do so at the time you open your account, at any time while your account is open, or after your account is closed, if you owe us any amount related to your account. Upon your request, we will tell you whether we obtained a consumer report (credit report) and the name and address of any consumer-reporting agency that provided such reports.
2.1.29. FURNISHING INFORMATION TO CONSUMER-REPORTING AGENCIES
We may report information about your account to credit bureaus. Late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you believe that we have furnished any inaccurate information relating to your account to any consumer-reporting agency, you may notify us at the address listed at the end of the Personal Terms and Disclosures Booklet. To help us respond to your notification, include your account number, Social Security Number, the name of the consumer-reporting agency reflecting the inaccurate information, and an explanation of why you believe the information is inaccurate. You understand that you may also contact the appropriate consumerreporting agency directly at the appropriate address and toll-free number: Equifax, P.O. Box 740241, Atlanta, GA 30374, 800.759.5979; Trans Union, P.O. Box 390, Springfield, PA 19064, 800.888.4213; or Experian, 701 Experian Parkway, Allen, TX 75013, 800.682.7654.
2.1.30. ADDRESS INFORMATION AUTHORIZATION
You authorize us to, but we are not obligated to, obtain information about your current address from the Department of Motor Vehicles. We may obtain this information prior to opening your account or when reviewing your account from time to time.
2.1.31. ACCOUNT ADJUSTMENTS
We may make adjustments to your account from time to time to reflect corrections or changes to your balance. Adjustments might occur, for example, if deposits are posted for the wrong amount, or to the wrong account, or if items are returned unpaid. In the event of an error that has caused an overstated balance, you agree to reimburse the overstated amount.
2.1.32. CHANGING ACCOUNT PRODUCTS
We may change your account to another product offered by us at any time by giving you notice that your account will be changed to another product on a specified date. If your account is a time deposit (CD) account, the change will not occur before the next maturity date of your account. If you do not close your account before the date specified in the notice, we may change your account to the other product on the date specified in the notice.
2.1.33. TRANSACTIONS BY MAIL
You may deposit checks by mail. You should endorse the check being sent through the mail with the words "For Deposit Only" and should include your correct account number underneath to ensure that the check is credited to the correct account. You should use either the pre-encoded checking deposit slips found behind your checks in your checkbook, or an EverBank Deposit Slip and envelope. If you do not use your deposit slip or provide us with instructions indicating how or where the check should be credited, we may apply it to any account or any loan balance you have with us or we may return the check to you. You will be responsible for any loss or expense caused by your failure to properly identify the account to which a deposit is made or intended to be made.
Following your deposit, examine your statement carefully or call us to ensure that we received the item. DO NOT SEND CASH THROUGH THE MAIL FOR DEPOSIT. WE CANNOT BE RESPONSIBLE FOR YOUR LOSS IF YOUR DEPOSIT IS LOST, STOLEN, OR MIS-DELIVERED BEFORE WE RECEIVE IT.
2.1.34. LEGAL ACTIONS AFFECTING YOUR ACCOUNT
If we are served with a subpoena, restraining order, writ of attachment, or execution, levy, garnishment, search warrant, or similar order relating to your account (termed "legal action" in this section), or if we are required to suspend payment by any law or regulation including, but not limited to, those issued by the Office of Foreign Assets Control, we will comply with such legal action or other requirements to suspend payments. Payments will be suspended until final resolution of such legal action or similar process or until the applicable law or regulation authorizes resumption of payments, even though such suspension or compliance may be due to errors arising from similarity of names of customers or other mistakes. If your account is attached, garnished, or otherwise subject to levy by lawful legal action, we will not be liable to you for any sums we may be required to pay because of such attachment, garnishment, or other levy, even if paying the money from your account leaves insufficient funds in your account to pay your items or in any way restricts access to your funds in accordance with the legal action. Any fees or expenses we incur in responding to any legal action (including, without limitation, attorneys' fees and our internal expenses) may be charged against your account. The list of fees applicable to your account(s) provided elsewhere may specify additional fees that we may charge for certain legal actions.
2.1.35. FORCE MAJEURE
Notwithstanding anything to the contrary in this Account Agreement, neither you nor EverBank shall be liable in damages for any delay or default in performing hereunder, if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. We may close your non-U.S. dollar account(s), including any WorldCurrency Access Deposit Account, WorldCurrency CDs, or World Markets Basket (AKA Index) CDs, or convert them to U.S. dollars at anytime, if we deem such action prudent, necessary or appropriate, in our sole discretion, in response to acts of God, government restrictions (including, without limitation, the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of us. If we do close your non-U.S. dollar account(s) or convert the funds in such account(s) to U.S. dollars as described above, we will not have any liability to you resulting from changes in the value of those non-U.S. dollars or resulting from the timing of our closing the account or converting the currencies to U.S. dollars.
2.1.36. DEATH OR ADJUDICATION OF INCOMPETENCE
You agree to notify us immediately of the death or court-declared incompetence of any owner or Authorized Signer on your account. We reserve the right to prevent withdrawal from your account upon the death of any owner until all required release-of-funds procedures are completed. We also may freeze, refuse, or reverse deposits and transactions and/or return governmental benefit payments made to an account owner if an owner dies or if an owner is adjudicated incompetent. If you give us instructions regarding your time-deposit (CD) account that are to be effective upon maturity of your account, and you or another owner of the account dies or is adjudicated incompetent prior to maturity of the account, the instructions shall be ineffective if we receive written notice of death or incompetence prior to honoring such requests. We may continue to honor your checks, items and instructions until: (1) we know of the death or incompetence of any account owner or Authorized Signer and (2) we have had a reasonable opportunity to act on that knowledge. You agree that we may pay checks drawn on or before the date of death or legal incompetence for up to 10 days after your death or legal incompetence unless ordered to stop-payment by someone claiming an interest in the account.
2.1.37. CHECK STORAGE AND COPIES
You agree that you will not receive canceled checks issued from your account. We will store canceled checks or copies of them for a reasonable retention period. You may request copies from us in the manner we require.
2.1.38. CHECK ORDERS AND FORMATS
For some products you may order blank checks from us by completing a check reorder form. Printed check order fees will be debited from your account and will appear on your monthly account statement. If you order checks from a separate vendor, those checks may not meet our format or encoding requirements. At our sole discretion, we may refuse to honor or accept checks or other forms that you create or other companies provide that do not meet our format or encoding requirements, and may refuse any withdrawal or transfer request that you attempt on forms not approved by us or by any method we do not specifically permit. You are liable for all claims, costs, losses and damages that may result from the use of a non-standard check or deposit ticket. If we do honor a non-conforming check, we may impose (and you agree to pay) a check-processing fee.
2.1.39. CHECK SIGNATURE VERIFICATION AND NOTATION
Checks written on, and other items debited from, your account may be processed mechanically based on information encoded on such checks or other items. Although we may visually review such checks and other items from time to time, you agree that reasonable commercial standards do not require us to do so. If we do visually review any check or other item, we may return it unpaid without liability to you if, in our opinion, it does not bear a signature matching the specimen signature card we have on file for your account. You agree, however, that we will not be liable to you for honoring any check, withdrawal request, or other item bearing a signature that, in our sole opinion, matches your signature card or account application, on file with us. You also agree to indemnify and hold us harmless from any and all losses, claims, damages, liability, costs, and expenses arising directly or indirectly out of (a) the misuse or unauthorized use of any facsimile signature used on a check, withdrawal request, or other item; or (b) the payment or acceptance of any item with restrictions or notations, whether you are the payee, payor, endorser, drawer, or otherwise. We cannot honor any request to require multiple signers for any checks or other withdrawals or transfers. Therefore, checks and other withdrawal or transfer requests may be paid on one signature notwithstanding any instructions to the contrary, unless required by court order or other law or legal process.
2.1.40. MONITORING AND RECORDING TELEPHONE CALLS
In order to ensure a high quality of service and for security reasons, we may monitor or record phone calls. You hereby consent in advance to any such monitoring or recording. We need not remind you of our recording before each phone conversation.
2.1.41. EARLY WITHDRAWAL PENALTIES (AND INVOLUNTARY WITHDRAWALS)
We may impose early withdrawal penalties on a withdrawal from a time-deposit (CD) account, even if you do not initiate the withdrawal. For instance, the early withdrawal penalty may be imposed if the withdrawal is caused by our setoff against funds in the account or as a result of an attachment or other legal process. We may close your account and impose the early withdrawal penalty on the entire account balance in the event of a partial early withdrawal. See the "Specific Terms" section related to your account for information regarding early withdrawal or involuntary withdrawal penalties applicable to your account.
2.1.42. CONFLICTING DEMANDS AND DISPUTES; RIGHT TO FREEZE OR INTERPLEAD
We are not required to make payment from an account to a depositor, or to any trust account or payable on death (POD) account beneficiary or payee, or any other person claiming an interest in any funds in the account, if we have actual knowledge of, or otherwise believe there may be, a dispute between the depositors, beneficiaries, payees, or other persons concerning their rights to the account proceeds, or in the event that we are otherwise uncertain as to who is entitled to the account funds. In such cases, we may notify, without liability, all depositors, beneficiaries, payees, or other persons claiming an interest in the account of the dispute or uncertainty. We also may refuse, without liability, to disburse any funds in the account to any person until such time as, at our option:
- all depositors, beneficiaries, payees, and/or other persons claiming an interest in the account have consented in writing to the requested payment; or
- the payment is authorized or directed by a court of proper jurisdiction; or
- the party with a conflicting claim has withdrawn his or her claim in writing; or
- we have proof satisfactory to us in our sole discretion that the dispute has been resolved.
In any case, we may, at our option and without liability, pay or permit withdrawal of any funds on deposit in an account to a depositor or agent of a depositor or trust, or POD account beneficiary or payee, or to another person claiming an interest in the account, even when we have knowledge of a dispute, if the adverse claimant provides suitable security and indemnification to us (as determined in our sole discretion). If, at any time, we believe that your account may be subject to fraudulent or illegal activity, we, at our discretion, may freeze the funds in the account until we are able to complete our investigation of the account and transactions. If we do freeze your account funds, we will provide you notice as soon as reasonably possible, unless we believe such notice is prohibited by law or we believe that notice could result in a security risk to us or the owner of the account funds.
2.1.43. STATEMENT OF LIABILITY FOR AUTHORIZED USERS
In consideration of advances, extensions of credit, and other instruments for payment of money made to or for the account applied for, you unconditionally guarantee to us the prompt payment of claims of every nature and description of us, against us (including those arising out of or in any way connected with any instrument deposited with or purchased by us).
2.1.44. EVERBANK ASSET MANAGER SERVICE—IMPORTANT INFORMATION
You understand that the EverBank Asset Manager Service consists of at least one funded WorldCurrency or EverTrade® Direct Brokerage Account and one EverBank Checking or Money Market Account (also known as your Cash Management Account), depending on the nature of your account(s). This service integrates bank and investment products, and enables transfers between the Cash Management Account and Investment Accounts. Each account will be governed by the applicable EverBank or EverTrade Terms, Conditions, and Disclosures Agreement.
If you are applying for EverTrade Direct Brokerage, Inc., you agree you have read and will be bound by the Terms and Conditions of the account as set forth in the EverTrade Direct Brokerage Disclosures (available at EverTrade.com). You acknowledge receipt of the disclosures statements noted above and understand that they may be amended from time to time without notice.
As part of your EverBank Asset Manager Service, you understand that cash balances in your Cash Management Account may be used to pay for securities in your EverTrade Direct Brokerage Account or for investments held in other accounts at EverBank. If there are insufficient funds in your Cash Management Account, you understand that we may follow the procedures for collecting adequate funds to cover any overdraft amount, as set forth in this Account Agreement. You understand that we also have the right of setoff and may exercise that right of setoff to the extent permitted by applicable law against your accounts at EverBank and/or EverTrade Direct Brokerage, Inc., to cover any insufficient funds. By executing this Asset Manager Account, you expressly authorize EverBank and/or EverTrade Direct Brokerage, Inc., to apply and/or transfer assets in other accounts that you have with EverBank or EverTrade Direct Brokerage, Inc., to cover any deficiency of funds in your EverBank or EverTrade accounts. You understand that this right of setoff means that your positions in fully paid securities carried at the clearing agent of EverTrade Direct Brokerage, Inc., or CDs and/or metals held at EverBank could be liquidated and the cash proceeds used to cover any overdrafts in your EverBank or EverTrade Direct Brokerage Accounts.
If you are unable to or do not make sufficient deposits to cover any insufficient funds, you understand that other assets that you own at EverBank and/or EverTrade Direct Brokerage, Inc., will be used to cover your overdrafts, without prior notice to you, in the following order of priority, to the extent permitted by law: (a) available Overdraft Protection (if applicable), (b) any liquid assets in another EverBank account, (c) any matured CD awaiting rollover or payment to you, (d) any fully paid securities in your EverTrade Direct Brokerage Account, and (e) any other CD held with EverBank.
You understand that you are liable for any transaction charges that are incurred in connection with the liquidation of any assets for these purposes. You understand that such transaction charges will be in addition to any fees assessed to your account for insufficient funds. You understand that the liquidation of assets may result in a loss of interest or dishonor of checks or other such items. Additionally, you understand that you may be subject to monetary penalties if a CD, which has not matured, must be liquidated to cover any overdraft.
Unless you are trading in securities on margin pursuant to a current Margin Agreement, the clearing agent of EverTrade Direct Brokerage, Inc., you agree to have sufficient cash assets to cover any securities that you direct EverTrade Direct Brokerage, Inc., to acquire for your EverTrade Direct Brokerage Account. If you execute an ACH Agreement, your Cash Management Account can be debited or credited for the acquisition or sales of securities in your EverTrade Direct Brokerage Account.
You agree to hold EverBank; EverTrade Direct Brokerage, Inc.; and each of their affiliates, officers, directors, employees, and agents harmless from any liability in connection with exercising the right to setoff, as provided herein.
If you have an IRA investment at EverBank and/or EverTrade Direct Brokerage, Inc., it will not be used to cover any overdraft in another account or for purposes of settling any securities transactions in your EverTrade Direct Brokerage Account. Your IRA account or accounts at EverBank and/or EverTrade Direct Brokerage, Inc., are not part of the EverBank Asset Manager.
You understand that termination of your Cash Management Account automatically terminates your EverBank Asset Manager Service. You understand that you may terminate your Cash Management Account at any time upon written notice to EverBank. You further understand that, as a condition of your termination becoming effective, you will be responsible for settling any securities transactions for your account and, if applicable, shall be responsible for closing out any securities carried for your account on margin. You understand that EverBank and/or EverTrade Direct Brokerage, Inc., may terminate your EverBank or EverTrade Direct Brokerage Accounts, including Cash Management Account, at their discretion by sending notice of termination to you.
2.1.45. INTERNATIONAL VISA CHECK CARD TRANSACTIONS
You may choose to use your Visa Check Card to make a cash withdrawal or purchase in a foreign country (a "International Transaction"). If your International Transaction is in a currency other than U.S. dollars, the transaction will be converted into a U.S. dollar amount by Visa® International Inc., using the procedures established by Visa International, Inc., based on the exchange rate in effect at the time the transaction is processed. The exchange rate between the transaction currency and the billing currency used for processing international transactions is a rate selected by Visa from the range of rates available in wholesale currency markets for the applicable central processing date, which rate may vary from the rate Visa itself receives, or a government-mandated rate in effect for the applicable central processing date, in each instance. You will be charged an International Transaction Service Charge (please refer to the "Account Fee Schedule" for actual fee amounts). We monitor your accounts for signs of potential fraud, which could include the use of your Visa Check Card in a manner that is out of the ordinary. If you are planning on using your Visa Check Card in a foreign country (for example, if you are traveling abroad) please let us know in advance. Otherwise it is possible that your International Transactions may be delayed or declined.
