Effective 5/15/2009

I.   Introduction

This Online Banking and Cash Management Agreement (this “Agreement”) contains the terms that govern your use of the PMB Internet banking Services described below. This Agreement sets forth the terms and conditions for both PMB Online Banking for consumers and PMB Cash Management services for businesses. Except as specified, all terms apply equally to both Online Banking and to Cash Management Services.

If you use Online Banking, you may enroll online. By clicking “I agree,” you are agreeing to the terms and conditions of this Agreement. If you use Cash Management, you may not enroll online. You must sign this agreement and complete an Enrollment Form. These must be signed by your authorized representatives and returned to us for review and approval. By signing this Agreement and/or the enrollment form, you agree to the terms and conditions of this Agreement.

If you use Online Banking, then you agree to use the Service for consumer transactions only. A consumer transaction is one involving an electronic funds transfer to or from an account maintained primarily for personal, family or household purposes. If you use the Online Banking Services for a consumer transaction, then the terms and conditions of Section XVII will not apply. If you are a business and you use Online Banking Services, then the terms and conditions of Section XVII will apply.

A “non-consumer transaction” means the use of a Service for any purpose that is not a consumer transaction (for example, to transfer funds to or from a business account or any account that is not a consumer account) and in addition includes (to the extent allowed by law): (i) any transfer of funds through Fedwire or similar wire transfer system; (ii) any transfer of funds the primary purpose of which is the purchase or sale of a security or commodity; and (iii) any other transfer to or from an account covered by the Electronic Fund Transfer Act and its implementing Regulation E. As you will see below, Section XVI applies only to consumers and to consumer transactions, so if you use a Service for a non-consumer transaction, then the terms and conditions in Section XVI will not apply.

In this Agreement, defined terms have the meaning given to them. In addition:

• An “Account” means any deposit or loan account you maintain with us and can include all accounts and products you use. Your “Account” may be the account you have designated as the account to be credited or debited.
• An “authorized representative” is a person with authority of any kind with respect to an Account. If you are a business, Section XVII.A further defines the term “authorized representative” as it applies to you;
• Your “available balance” means the balance in your account as determined under our Funds Availability Policy, plus any available funds from an overdraft protection account or an overdraft line of credit of yours;
• A “business day” means Monday through Friday, but excluding Saturday, Sunday and legal holidays;
• A “business” is anyone other than a consumer who owns an Account with respect to which a Service is requested. A business includes a sole proprietor, corporation, partnership, limited liability company, unincorporated association or any person not a consumer;
• “Communication(s)” means instructions and actions from you (or attributable to you under this Agreement or otherwise) received by us through the Internet banking system. Communications include payment orders, transfers, bill payments, Automated Clearing House (ACH) entries, electronic funds transfers, or other instructions or requests for use of a Service;
• A “consumer” is a natural person who owns an Account with respect to which a Service is requested primarily for personal, family or household purposes;
• The word “includes” means “including but not limited to” the examples given.
• The word “may,” when used in reference to us, means that our option and sole discretion. Action (or inaction) that we “may” take is authorized by you and allowed to us, but is not required. You agree that we will not be liable for any action taken or any failure to act when action or inaction is at our discretion;
• A “payment order” is as defined under Section 11103(a)(1), as amended or revised, of the California Commercial Code, and includes a Communication received by us instructing us to pay, or to cause another bank to pay, a fixed or determinable amount of money to a you, to a third party or to any other beneficiary;
• Your “Security Codes” are the User codes and passwords that are associated with you and used by us to verify the authenticity of Communications from you. Security Codes are used to access accounts and to use the Services. The Security Codes include any supplemental or alternative method used to verify the authenticity of Communications that may be offered or presented to you by us from time to time;
• The “Services” are defined at Section IV. Consumers are limited to Online Banking Services. Except where otherwise specified or the context so requires, “Services” may include both Online Banking Services and Cash Management Services;
• A “User” is a person who uses a Service. See Section XVII.B for the definition of a User of Cash Management Services.
• The words “we,” “us”, “our”, “Bank”, and similar terms are used to refer to Pacific Mercantile Bank (PMB); and
• The words “you”, “your”, and similar terms are used to refer to the person entering into this Agreement and to the owner of an Account (with the owner’s authorized representatives).

References to time are to local time for the Bank.

II.   Using the Services

Subject to our approval and to any limits we impose, each Account may be made available for access through our Internet banking website and for the Services. We may act on requests for information, or requests to make or countermand any Service requested on or associated with an Account, from any Account owner (including joint owners or borrowers on an Account) or their authorized representatives. Accounts will continue to be subject to the agreements otherwise governing them, except where this Agreement differs and in which case this Agreement will control. Additionally, each Account and your Services will be subject to and governed by the following:

• The terms or instructions appearing on a screen when using a Service;
• Our rules, procedures and policies;
• Applicable state and federal laws, rules and regulations;
• The rules of the National Automated Clearing House Association (NACHA) for ACH transactions; and
• The rules of other funds transfer systems when used in connection with a Service.

You agree to use the Services in compliance with applicable laws, rules and regulations, including the sanctions laws administered by the Office of Foreign Asset Controls. You agree not to resell or offer a Service to another, or to process any transactions for others using a Service. If you are a natural person, you certify that you are at least 18 years or older.

You must have sufficient available funds in your Account to cover the amount of any transaction that would be charged to your Account (such as Bill Pay, wire transfers and some types of automated clearing house entries). You can initiate payments up to the amount of available funds in your Account. We may hold (or “freeze”) funds at any time after you have initiated a Service for any reason, including as a means of reducing risks that there will be insufficient funds for completing the Service. If we do hold funds, we may treat the held funds as not available for other purposes, and reject other transactions (for example, checks or other transfer instructions) in any order we choose. We may allow overdrafts or negative balances, but we also may discontinue the practice at any time with or without prior notice to you. We may prevent or reverse any payments or other Service in any order that we choose as a means of preventing or recovering any overdrafts or other exposures. If you do not have sufficient or available funds, you may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), as set forth herein and in the Schedule of Fees and Charges.

WAIVER OF TWO SIGNATURES AND OTHER ACCESS RESTRICTIONS: Your Accounts may be subject to access restrictions when you conduct transactions in person or using systems other than with a Service. For example, there may be a requirement for two signatures on checks. Or loan accounts may have limited or specific access restrictions or purposes. If access restrictions exist, they do not apply to your use of the Services. We may process your transactions based on Communications through the Service without regard to or any need to comply with access restrictions otherwise applicable to your accounts. We may, for example, transfer funds from one account to another account of yours based on transfer instructions through the Service, even though the person initiating the transfer is not an authorized signer on either account, meaning that a person with no signature authority over an account may be able to move funds from that account to another account over which he or she has signature authority or withdrawal capability. You represent and warrant that you have reviewed the risks associated with the Services and, to the extent allowed by law, you agree that you will not hold us responsible for damages or losses you suffer should those risks cause damage or loss to you.

If we receive instructions from any account owner or authorized signer, we may act on such instructions even if contrary to any instructions received from you or through a Service. We may freeze any account if we receive conflicting instructions from account owners or authorized signers; notice to any of you or to any account owner is sufficient notice to all of you.

You authorize us to make all of your Accounts available for access by and through the Services. We are not, however, obligated to establish access for any or all of your Accounts. If you do not wish to have a specific Account made subject to a Service, you may request that the Account be removed by calling us at 866 450 5600. Not all Services are available with all Accounts; some Services may not be available without special application to and approval by us, or may be limited to specific types of Accounts.

III.   Application for Services; System Requirements

Before you can use our Services, you must apply and be approved. For Cash Management Services, you must submit an Enrollment Form signed by a person authorized to act on behalf of and to bind the business. For Online Banking Services, an online application may be used and signed electronically. Signing the application (in paper or electronically) constitutes your agreement with this Agreement. It also authorizes us to obtain information about you from others (including credit reporting agencies) as part of our review of your application or for any other purpose, and to provide information about our experience with you to others, as and when we desire. You agree to provide us with financial and other information about you as we request from time to time.

To use the Service, you must have sufficiently powerful computer hardware and appropriate software. This includes an Internet browser that supports 128-bit encryption. Some Services may require you to download software from our website; in some cases, we may place software on your computer as part of our security and/or User verification tools. You agree to abide by the intellectual property rights of others with respect to this software; among other things, you will not use, copy, disseminate, reverse compile or otherwise appropriate any software code or program except as allowed and for the purpose of performing approved Services. You acknowledge and agree that the software may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations. You agree and certify that neither the software nor any direct product thereof is being or will be used for any purpose prohibited by these Acts. You agree and certify that you are not a citizen or permanent resident of the following countries: Cuba, Iran, Iraq, North Korea, Libya, Sudan or Syria.

IV.   Description of the Services; Cut-Off Times

With the Online Banking Services, you can (subject to system limitations):

• Check your Account balances. (Note: balances are updated as transactions are processed, but there can be some delay.)
• View Account summary.
• View Account statements. (Note: current and previous month’s statements).
• Obtain Account histories. (Note: account histories generally extend for the current and previous account statements.)
• Use Bill Pay.
• Initiate stop-payment instructions on checks.
• Reorder checks.
• Receive and send messages in a secure electronic environment.
• View checks after we have processed them.
• Transfer funds between Accounts.
• Download (or “export”) Account information for transfer to specified financial software programs and/or spreadsheets. (Note: we are not responsible for the accuracy of data or for its integration with financial software.)
• Receive account notifications.

With Cash Management Services, you have access to the Services offered to Users and you may also have access to supplemental Services, including:

• Wire transfer services.
• ACH services.
• Federal tax payment services.

See Section XVII regarding special provisions applicable to Cash Management Services.

A Communication received by us after the cut-off time on a business day, or on a day that is not a business day, may be treated by us as if it were received on the next business day. At our option, however, we may treat it as received the same day as the day of receipt. A Communication is deemed received by us when actually received by us (or by our service provider) in content and in a format specified by us (or at our option useable to us) for processing. There can be a delay between the time when you send a Communication to us and the time we receive it. Our cut-off time is generally 5:00 p.m., except for wire transfer Services. For wire transfer requests, the cut-off time is 1:00 p.m.

You will generally be able to use Services seven days a week, 24 hours a day. However, a Service may not be available due to system maintenance or circumstances beyond our control. Services may be added, cancelled or limited at any time or from time to time, with or without cause or notice (except as required by law).

V.   Security Codes; Additional Authentication Tools

You will be given a password that, with the other components of your Security Codes, will give you access to your Accounts through the Service. This password can be changed within the Service or by calling us. The password must be at least 6 characters and must include at least three letters and one number.

You agree to keep all Security Codes confidential; you agree not to write them down. We may offer to you or require you to use additional authentication tools or methods from time to time (for example, challenge phrases, watermarking, token devices or security keys). If you choose not to implement supplemental authentication tools, your access to some or all Services may be limited. The term “Security Codes” will include any supplemental authentication tools that are used by you. Each User is required to change his or her password upon initial login. We recommend that you change your password frequently. If you are a business, you agree to change all passwords with sufficient frequency so as to protect confidentiality, and in any event no less frequently than every six months.

You are responsible for keeping your Security Codes confidential. If you believe that your password or any aspect of your Security Codes may have been lost or stolen, or that someone has transferred or may transfer money from your account without your permission, or if you suspect any fraudulent activity on an Account, notify us at 866 450 5600.

VI.   Access to Accounts

For Online Banking Users, all Accounts on which you are an account owner may be made available for Services, subject to approval by us. For Cash Management Users: (a) your Accounts may be linked as shown on your Enrollment Form, subject to approval by us and you entering into any supplemental agreements required by us; (b) you represent and warrant that you have authorization from the account owner to engage in each Service used by you affecting that Account, whether or not linked; and (c) you make this representation and warranty at the time the Accounts are linked and each time you use a Service to access or transact on an Account. The foregoing representations and warranties are in addition to any terms contained in a separate agreement, if one is required by us.

VII.   Payment of Fees and Charges

A.   There are no monthly fees to access our website. Specific Services may have a fee or charge and you will be responsible for them. Our fees and charges are shown on our Schedule of Fees and Charges, a copy of which you acknowledge receiving. For consumers using Online Banking, these include:

• $22.00 for stop payment;
• $10.00 for deposited checks (and other items) returned unpaid;
• $10.00 each for deposited items re-cleared; and
• $35.00 each for non-sufficient funds (NSF) and uncollected funds (UCF) items (whether paid or returned) (maximum $ 175.00 per day for personal accounts).

Other fees may be assessed and billed separately by your Internet and/or telephone service provider. We may impose new fees and charges, or increase or change existing fees and charges. We will provide advance notice of these changes to you as required by law.

B.   You may be required to designate a deposit account with us to which fees and charges for Services will be debited (your “Payment Account”). You authorize us to charge your Payment Account and/or any other account you hold with us to cover your fees and charges. You also authorize us to charge you according to our then-current fee schedule. If you are a business, we may use account analysis programs to calculate amounts due to us for Services, but you remain responsible for any excess or uncollected fees and charges. If you close your current Payment Account, you must notify us and designate a new deposit account that will be your Payment Account. Additionally, even if you close all your Accounts, you must notify us to cancel your Services.

VIII.   Account Notifications

You may have the ability to set up an "Account Notification," which is a convenience feature that permits you to request a notification of specific situations. For example, you can request an Account Notification when an account has reached a certain balance or a check has been processed. You are responsible to input accurate information to set up the Account Notification. Account Notifications do not replace standard communications you receive from us concerning your Accounts. We are not responsible for any losses, damages or expenses that may occur if an Account Notification is not set up properly or is not processed as a result of factors beyond our reasonable control. You agree to keep your e-mail address up to date, using the Service.

IX.   Secure Messaging

You may communicate with us using the secure messaging feature offered as part of the Services. You agree not to use this feature to conduct transactions on an Account, to seek to accomplish a Service, or to provide us with instructions or notice. We may post messages for you in the secure location of our website. We may also use e-mail to notify you that a new message has been posted. After you log in, you agree to review all messages. You agree to keep your e-mail address up to date, using the Service. You will be deemed to have “received” the message upon receipt and opening of the e-mail message, or by the next business day after we post it to the website and send you a notification of availability, whichever occurs earliest.

We may not immediately receive messages that you send and we will not take action based on any requests until we actually receive your message and have had a reasonable opportunity to act. Therefore, you should not rely on Secure Messaging if you need our immediate attention. In such cases, call us at 866 450 5600. For example, if you need to report an unauthorized transaction from one of your Accounts, you should call us to ensure prompt action on your request.

X.   Electronic Mail (E-mail)

Regular non-encrypted Internet e-mail is not secure; Internet Service Providers or others could monitor your e-mails. Therefore for your security, we do not accept instructions for the operation of your accounts by e-mail. We also do not communicate with you through e-mail except as described in Sections VIII and IX.

XI.   Bill Pay Service

A.   The Bill Pay service allows you to schedule bill payments to others. You may be required separately to enroll in the Bill Pay Service, and each User may also be required separately to enroll. You can arrange for current, future and automatic (recurring) bills to be paid from your Account(s). In addition to the limitations elsewhere described, there are frequency limits that apply when transferring funds from a savings account or money market account. You may make a maximum of six preauthorized, automatic or telephone transfers per monthly cycle, and no more than three of the six may be made by check, draft or debit to third parties, including point of sale (“POS”) transactions.

B.   In general, you may pay anyone in the U.S. We may, however, bar payments or cancel payees where required by law or by the rules of any payment system used by us, or if we believe for any reason that processing the payment may or could result in loss or damage to you or to us. By furnishing us with the names of your payees, you authorize us to process payments using the information you provide and without further investigation by us. In some instances, however, Bill Pay may submit payments to another payee address, as provided to us by the payee or by a service used by us. Moreover, when necessary, we may (but are not required to) reformat your payee account number to match the format required by your payee for electronic payment processing. You agree not to use Bill Pay to process (and we may reject) payments to federal, state, local tax agencies or court ordered payments. We may use nonaffiliated third parties acting on our or your behalf to process Bill Pay payments. Bill Pay payments may be processed as electronic payments or as paper checks, at our option. Paper checks processed by nonaffiliated third parties may show as drawn on the third party processor or its bank rather than on you or on us.

C.   Funds for bill payments (whether we make these payments electronically or by check) will be withdrawn from the Account on: (a) the business day we process the Bill Pay request, if you schedule a bill payment for processing the same business day as the day of receipt by us of that request; and (b) the business day immediately preceding the date you schedule a bill payment for processing, if the bill payment is future dated (that is, set by you for processing on a future date). If the date you seek to have a Bill Pay request processed is not a business day, we may withdraw funds on the business day immediately prior to the process date. You are responsible for insuring that your Account has sufficient available funds on balance for us to withdraw them on the day we seek to charge your Account to cover your Bill Pay requests. If we receive your Communication (here, your Bill Pay request) on a business day after our 5:00 p.m. cut-off time, we may treat it as received on the next business day.

D.   If there are not sufficient available funds in your Bill Pay account to cover the bill payment on a day that we seek to charge your Account, we may take any of the following actions:

• Cover the bill payment according to the terms of any overdraft protection you have with us;
• Pay the bill payment and create an overdraft to your Bill Pay account; or
• Decline the bill payment.

If we pay even though there are not sufficient funds, you agree to pay (and we may charge your Bill Pay Account or any other account) the fee(s) you incur as described in this Agreement and in our Schedule of Fees and Charges. If your Bill Pay account closes, all pending payments associated with that Account will be canceled.

E.   You understand that we are not required to monitor, review or otherwise analyze your Bill Pay payments or your payees to seek to protect you against loss or damage, and have no duty to inform you of any suspicions or concerns we may have. If you are a business and an authorized representative of yours uses your Bill Pay account to pay bills which are not yours, you assume the entire risk of loss and indemnify, defend and hold us, our directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments and expenses arising out of or in any way connected with such use.

F.   You may change or cancel any scheduled bill payment (including recurring payments) by using the Bill Pay service. There is no charge for canceling or editing a scheduled bill payment. However, we must receive your Communication no later than our 5:00 p.m. cut-off time on the business day prior to the process date. Payments that are in process cannot be changed or cancelled, and you agree to this limitation. A stop payment request may be submitted to us by calling us at 866 450 5600, and we may try to accommodate it. However, our ability to process a stop payment request will depend on the payment method and whether or not a check has cleared, and we may not be able to change or cancel a request after processing. If we are successful in processing a stop payment request, we may take up to seven business days before we credit funds to your Account. If we suffer any loss or may be required to honor another’s request for payment after funds have been credited to your Account, you agree to return those funds or otherwise reimburse us to the extent allowed by law. If you are a business, loss or damages suffered by you if we fail to implement a stop payment instruction are limited by Section XIV of this Agreement.

G.   Payments made through the Bill Pay service require sufficient time for your payee to receive your payment and credit your obligation properly. To avoid incurring finance or other charges imposed by your payee, you must schedule a payment sufficiently in advance of the due date. YOU MUST SCHEDULE THE PAYMENT AT LEAST FIVE (5) FULL BUSINESS DAYS PRIOR TO THE DATE THE PAYMENT IS DUE AT THE PAYEE. For scheduling purposes, the first business day after we receive your Bill Payment Communication should be counted as Day 1. You must time your payment using the due date of the payment and not the last day of any grace period established by the payee. We are not responsible for delays in the U.S. mail when Bill Payment is made by check.

H.   If your Bill Pay payment is sent by check and the check is not presented for payment within 90 days, we may stop payment on the check. If we do so, we may delay crediting the check amount to your Account. You agree to reimburse us if the check is later cleared and payment occurs, notwithstanding our stop payment of the check.

I.   If you have the Bill Pay service and do not schedule or process a payment via the Bill Pay service for any three (3) month period, we may terminate your Bill Pay service. If you close your Bill Pay account, or if we terminate your Bill Pay service, your online bill payment information will be lost and all pending payments will be canceled. If you decide to terminate the Bill Pay service, you agree to cancel all future bill payments at the same time that you cancel your Bill Pay service, either by deleting those payments yourself using the Bill Pay service or by calling us at 866 450 5600. This will ensure that future payments made by you will not be duplicated. We will automatically delete all outstanding payment orders (all individual payments and all recurring payments) once your Bill Pay service has been terminated. Termination of the Bill Pay service will not automatically close your Accounts and will not affect your obligations arising from past Bill Pay transactions.

J.   If you do not access your Accounts via Online Financial Services within 90 days, you will need to re-enroll.

XII.   Information Security.

Information exchanged through the Service or any Online Financial Services is protected by advanced encryption techniques. These security measures still require your responsible behavior in protecting your Security Codes.

XIII.   Privacy

All information gathered from you in connection with using the Service will be governed by the provisions of the Pacific Mercantile Bank Personal Privacy Policy, including the Internet Privacy Policy, which you agree to review by accessing on our homepage.

XIV.   Limitations on Liability and Responsibilities; Indemnification

A.   This Section explains our liability to you for our failure to perform in accordance with this Agreement, or for the failure of a Service. Unless otherwise required by applicable law, we are only responsible for performing Services as expressly stated in this Agreement, and will only be liable for material losses incurred by you to the extent such losses directly result from our gross negligence or intentional misconduct.

IN NO EVENT WILL PACIFIC MERCANTILE BANK OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE), INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE SERVICE, THE INABILITY TO USE THE SERVICE OR THOSE RESULTING FROM ANY MERCHANDISE OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS SPECIFICALLY REQUIRED BY LAW FOR A CONSUMER. IF YOU ARE A BUSINESS, YOU AGREE THAT THE AGGREGATE LIABILITY OF PACIFIC MERCANTILE BANK AND OUR THIRD PARTY SERVICE PROVIDERS UNDER THESE TERMS OF USE SHALL NOT EXCEED ONE THOUSAND DOLLARS.

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

• Is not in accordance with any term or condition applicable to the relevant Online Financial Service or Account;
• We have reason to believe may not be authorized by you or any third person whose authorization we believe is necessary or involves funds subject to hold, dispute, restriction or legal process we believe prevents their withdrawal, transfer or availability;
• Would result in us exceeding any limitation of our net funds position established pursuant to present or future Federal Reserve guidelines;
• Would violate any applicable law, rule or regulation, or any guidance or directive of any federal or state regulatory authority;
• Is not in accordance with any other requirement of our applicable policies, procedures or practices; or
• We have reasonable cause not to honor for our or your protection.

B.   INDEMNIFICATION. Except to the extent that we are liable under the terms of this Agreement, or of any agreement that otherwise governs your Account, if you are an owner of an Account, you agree to indemnify and hold us, our affiliates, officers, directors, employees, consultants, agents, service providers, and licensors harmless from any and all third party claims, liability, damages and/or costs (including but not limited to reasonable attorney’s fees) arising from: (1) an Account; (2) the performance of a Service; (3) a third party claim, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or other materials submitted by you to us; (4) any fraud, manipulation, or other breach of these terms; (5) any third party claim, action, or allegation brought against Pacific Mercantile Bank arising out of or relating to a dispute with you over the terms and conditions of an agreement, purchase or sale of any goods or services; (6) your violation of any law, rule or regulation, or of the rights of a third party; (7) your use, or the provision of Services or use of your Account by any third party; or (8) any transaction or instruction or Communication from you to us. Pacific Mercantile Bank reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Pacific Mercantile Bank in asserting any available defenses. You will not settle any action or claims on Pacific Mercantile Bank’s behalf without the prior written consent of Pacific Mercantile Bank. This indemnification is provided without regard to whether our claim for indemnification is due to the use of the Service by you or your authorized representative. This survives termination of this Agreement.

C.   Except as specifically provided in this Agreement or where applicable law requires a different result, neither we nor our service providers or other agents will be liable for any loss or liability resulting in whole or in part from any act or failure to act of your equipment or software, or that of an Internet browser provider such as Microsoft (Microsoft Explorer browser), by an Internet access provider, by an online service provider, by an online service provider or by an agent or subcontractor of any of them, nor will we or our service providers or other agents be responsible for any direct, indirect special or consequential, economic or other damages arising in any way out of your access to or use of, or failure to obtain access to Online Financial Services through the Service. This Agreement is between you and us and no third party beneficiary is created under it.

XV.   General Provisions

A.   CHANGES. Except as otherwise required by law, rule, or regulation, we may change the terms of this Agreement from time to time and at any time. When changes are made we will update this Agreement at our website. You will be notified as soon as possible when any changes are made which materially affect your rights, such as changes regarding how your information is maintained or used. You may choose to accept or decline changes by continuing or discontinuing using the Service. Changes to fees or terms applicable to Accounts are governed by the agreement otherwise governing the applicable account.

B.   SERVICE OR TRANSACTION DELAYS. We are not responsible for errors, acts or failures of others including, without limitation, banks, communications carries or clearinghouses through which wire transfers, ACH entries or Tax Transfers, or other transactions, may be originated, or through which we receive or transmit information. No such entity shall be deemed our agent. We also are not responsible for any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, computer virus, flood, earthquake or extreme weather, acts of government, labor disputes, failures in communications networks, delayed or slow internet service, legal constraints or other events beyond our control.

C.   TERMINATION. This Agreement will be in effect from the date your enrollment in the Service is submitted by you and accepted by Pacific Mercantile Bank and at all times while you are using the Service or any Online Financial Service. Unless otherwise required by law, either you or Pacific Mercantile Bank may terminate this Agreement and/or your access to any Online Financial Service through the Service, in whole or in part, at any time without notice.

D.   GOVERNING LAW. This Agreement will be construed and interpreted in accordance with the laws of the State of California, without reference to its conflict-of-laws rules. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the California state and U.S federal courts located in Los Angeles, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney’s fees.

E.   NOTICES. Except as otherwise provided in this Agreement, all notices required may be sent in writing or by electronic record. If in writing, notice may be sent to you at the address shown in our records (if you are a business, we may use the address set forth in the Enrollment Form). Either party may change their address for notice from time to time, and any change by you will be effective when our records are updated. All notices shall be effective upon the earlier of receipt or, if mailed, seven days following deposit in the U.S. mail, postage prepaid. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, IN THE EVENT THAT WE ARE REQUIRED TO PROVIDE A NOTICE OR OTHER COMMUNICATION TO YOU IN WRITING, THAT NOTICE OR OTHER COMMUNICATION MAY BE SENT TO YOU ELECTRONICALLY TO YOUR INTERNET ADDRESS AS REFLECTED IN OUR THEN CURRENT RECORDS.

F.   ENTIRE AGREEMENT. This Agreement represents the sole and exclusive agreement between you and Pacific Mercantile Bank regarding the Service and merges and supersedes all previous and contemporaneous written or oral agreements and understandings regarding the subject matter hereof. If any provision of this Agreement is held to be invalid or otherwise unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be invalidated or otherwise affected. Each of the rules, terms and conditions set forth in this Agreement stand alone. Any term or condition contained in this Agreement which is inconsistent with any law, rule or regulation, will be deemed to have been modified by us and applied only in a manner consistent with such laws. To that effect, all rights asserted by us or obligations imposed on you are asserted or imposed, as the case may be, only to the extent allowed by law.

G.   BINDING ARBITRATION. Unless otherwise prohibited by applicable law, the parties expressly agree that any legal proceeding, any action, dispute, claim, or controversy of any kind (e.g., whether in contract or in tort, statuary or common law, legal or equitable) now existing or hereafter arising between the parties in any way arising out of, pertaining to or in connection with this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules and Supplemental Procedures for Financial Disputes of the American Arbitration Association ("AAA"). The foregoing matters shall be referred to as a "Dispute." Any of the parties hereto may, by summary proceedings (e.g., a plea in abatement or motion to stay further proceedings), bring an action in court to compel arbitration of any Dispute. Any such arbitration shall proceed in Orange County, California, and shall be governed by the substantive laws of the State of California.

The decision of the arbitrator shall be final and binding upon all parties and judgment upon the award may be entered in any court having jurisdiction thereof by any party. Any arbitrator chosen to preside over the dispute must be a member of the California State Bar either actively engaged in the practice of law or a retired member of the California State or federal judiciary, and, unless otherwise agreed in writing, must have expertise in the process of deciding disputes in the deposit account and/or internet banking services context.

Any party who fails to submit to binding arbitration following a lawful demand of the opposing party shall bear all costs and expenses, including reasonable attorney fees, incurred by the opposing party in compelling arbitration.

In Disputes involving indebtedness or other monetary obligations, each party agrees that the other party may proceed against all liable persons; jointly and severally, or against one or more of them, less than all, without impairing rights against other liable persons. Nor shall a party be required to join the principal obligor or any other liable persons in any proceeding against a particular person. A party may release or settle with one or more liable persons as the party deems fit without releasing or impairing rights to proceed against any persons not so released.

These arbitration provisions shall survive any termination, amendment or expiration of any provision of this Agreement, unless otherwise expressly agreed in writing.

THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHT TO A JURY TRIAL, OR A TRIAL BEFORE A JUDGE IN A PUBLIC COURT.

XVI.   Electronic Funds Transfer Provisions for Consumers (this Section only applies to consumers and consumer transactions).

A.   APPLICABILITY. The provisions in this Section XVI apply only to electronic fund transfers that debit or credit a consumer’s checking, savings or other asset types of account and are subject to the Federal Reserve Board’s Regulation E (an “EFT”). They do not apply to non-consumer transactions.

B.   LIABILITY FOR UNAUTHORIZED USE. Tell us AT ONCE if you believe that your Security Codes have been lost or stolen, or if you believe that an electronic fund transfer has been made without your permission using information from your check. Telephoning is the best way of keeping your possible losses down. You could lose all the money in your account (plus your maximum overdraft line of credit if you have one). If you tell us within two business days after you learn of the loss or theft of your Security Code, you can lose no more $50.00 if someone used your Security Code without your permission.
If you do NOT tell us within two business days after you learn of the loss or theft of your Security Code, and we can prove that we could have stopped someone from using your Security Code without your permission if you had told us, you could lose as much as $500.00.

Also, if your statement shows transfers that you did not make, including those made by Security Code or other means, tell us at once. If you do not tell us within 60 days after the statement was mailed to you, you may not get back any money you lost after the 60 days if we can prove that we could have stopped someone from taking the money if you had told us in time.
If a good reason (such as a long trip or hospital stay) kept you from telling us, we may extend the time periods.
Contact in Event of Unauthorized Transfer: If you believe your Security Codes has been lost or stolen, call 866 450 5600 or write to us at Pacific Mercantile Bank, Attn: Central Operations, 949 South Coast Drive, Third Floor, Costa Mesa, CA 92626. You should also call the number or write to the address listed above if you believe a transfer has been made using the information from your check without your permission.

C.   PREAUTHORIZED PAYMENTS. Right to stop payment and the 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 866 450 5600 or write us at Pacific Mercantile Bank, Attn: Central Operations, 949 South Coast Drive, Third Floor, Costa Mesa, CA 92626, in time for us to receive your request three 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. We will charge you for each stop payment order you give, as set forth in the Schedule of Fees and Charges.

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 payments of preauthorized transfers. If you order us to stop one of these payments three business days or more before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages proximately caused by us.

D.   DOCUMENTATION. You will get a monthly account statement (unless there are no transfers in a particular month. In any case you will get a statement at least quarterly).

E.   ERROR RESOLUTION. In Case of Errors or Questions About Your Electronic Transfer:
Telephone us at 866 450 5600 or write to us at Pacific Mercantile Bank, Attn: Central Operations, 949 South Coast Drive, Third Floor, Costa Mesa, CA 92626, as soon as you can, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt.

We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.

1. Tell us your name and account number (if any).
2. Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
3. Tell us the dollar amount of the suspected error.

If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days.
We will determine whether an error occurred within 10 business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. If we decide to do this, we will credit your account within 10 business days for the amount you think is in error, so that you will have the use of 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 we do not receive it within 10 business days, we may not credit your account.

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

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

F.   CONFIDENTIALITY. We will disclose information to third parties about your account or the transfers you make:

1. Where it is necessary for completing transfers, or
2. In order to verify the existence and condition of your account for a third party, such as a credit bureau or merchant, or
3. In order to comply with government agency or court orders, or
4.  If you give us your written permission

G.   OUR LIABILITY

If we do not complete a transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages proximately caused by us. However, there are some exceptions. We will not be liable, for instance:

1. If, through no fault of ours, you do not have enough money in your account to make the transfer.
2. If the transfer would go over the credit limit on your overdraft line (if any).
3. If the system was not working properly and you knew about the malfunction when you started the transfer.
4. If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.

There may be other exceptions stated in our Agreement with you.

XVII.   Cash Management Services (this Section applies to non-consumer transactions).

A.   AUTHORIZED REPRESENTATIVES. If you are a business, your “authorized representative” includes each person who is (1) authorized by you to conduct business with us, including as part of your account opening resolution; or (2) a principal officer of yours (such as your CEO if you are a corporation, or a partner in a partnership, or a manager in an LLC); or (3) otherwise authorized (or deemed authorized) to act on your behalf, whether under this Agreement or any other agreement with us, by the laws of agency, or under by any other state or federal law, rule or regulation. You authorize any authorized representative of your business, on such terms, conditions, and agreements as we may from time to time require, to:

• Enter into this Agreement and any related agreements for any one or more Services, as they or any of them may be amended from time to time. Your use of a Service will be deemed agreement to all terms and conditions related to that Service, including those of any related agreement governing such Service. We may require you to enter into related or supplemental agreements from time to time, and you agree to execute and deliver them, along with evidence of authorization for your authorized representatives, from time to time and as we request;
• Access each Account of yours in any manner and for any purpose available through a Service, whether the Service is now available or is made available at some time in the future; and
• Use any Service in any manner and for any purpose available through the Service, whether the Service is now available or is made available at some time in the future.

B.   USERS. You may be required to designate at least one Administrator. You (through the Administrator) then control the Cash Management Services, through the systems available at our website. Your Administrator may establish other users (including Supervisor and employees or other users) (collectively with any Administrator, the “Users”). You are responsible for causing any User to maintain the confidentiality of his or her password or login identification and other Security Codes.

C.   RESPONSIBILITY FOR ADMINISTRATORS. The Administrator(s) will be responsible for maintaining your Service settings and User security. Access to your account(s) through the Service will be based upon the identification of Users and authority levels specified by you in your Enrollment Form. You must notify us if you terminate or change the Administrator. You must also notify us if you add or delete accounts or functionalities.

The Service will allow the Administrator to establish authority levels to help you manage additional Users and control use of various Cash Management Services (such as stop payment, ACH origination, wire transfer and Bill Pay capabilities). The levels are used to specify who can access specific Accounts, what dollar amounts Users are authorized to handle and what functions a User can access within an account. The Administrator is responsible for setting up your Users. The Administrator is also responsible for assigning all Supervisors, employees, or other persons with the Security Codes that are necessary to access Services and for establishing what, if any, limitations will apply (including what level of activity is appropriate for each Account). The Administrator changes and maintains your Security Codes. The Administrator(s) will have full access to your Accounts and to any future Accounts you may open.

We will not control or oversee the Administrator function or the activity of Users. You agree to creation of an Administrator and to all action taken by the Administrator, by any User, and by any person given access to one or more Services by the Administrator or by a User, and all such persons are your agent for purposes of use of the Services. You further agree to assume all risks associated with providing Security Codes to your Administrator, understanding that this can result in Users and possibly other persons obtaining access to your Account without control or monitoring by us. You must establish authorization parameters and/or limits for each person you authorize to use the Service. You agree to use and implement each control (including template management, verification, access, use of maximum process settings, security, audit and review procedures) to prevent unauthorized persons gaining access to Security Codes or your Accounts.

D.   RESPONSIBILITY FOR COMMUNICATIONS IN YOUR NAME, WHETHER OR NOT AUTHORIZED BY YOU

The Security Codes are security procedures. You agree that we may use the security procedures to verify the authenticity of Communications in your name that are received by us (including Communications for Bill Pay, for a transfer, ACH entries, or wire transfer, other money transactions, or any other payment order). If we verify the authenticity of Communication or instruction using the security procedures, we may rely on and you will be obligated on the Communication or instruction, whether or not it was authorized by you. Also, if a Communication or instruction was authorized by you, you will be obligated on it even if we did not verify its authenticity using the security procedures and even if the security procedures would have prevented error. You agree that the security procedures are intended to verify authenticity and not to detect error.

E.   RESPONSIBILITY FOR SECURITY PROCEDURES

In addition to the Security Codes as security procedures, you may choose additional security procedures. We may from time to time offer supplemental security procedures, and you agree to consider them. You agree to follow any instructions we provide to you about using, storing or otherwise related to security procedures.

You agree to consider the size, type and frequency of the Bill Pay, ACH entries, wire transfer, payment orders or other money transactions you will or intend to use Services to accomplish. You agree to consider the risks presented by the possibility of unauthorized access to these Services, including the risk of loss to you that we may process Communications and instructions that are your responsibility even though they were not authorized by you. You agree to use Services only after determining, and only for so long as you continue to determine, that the security procedures are a commercially reasonable method of providing security against unauthorized Bill Pay, ACH entries, wire transfer, payment orders or other money transactions. You agree and acknowledge that the security procedures are commercially reasonable for you and that you will be bound by instructions or Communications in your name, as set forth above.

You agree to take appropriate steps to ensure that all Security Codes are protected and kept confidential. In your review of the Services, including those aspects of the Services pertaining to the issuance, use, and protection of Security Codes and security procedures, you agree to notify us if your use of the Services would necessitate or be better served by a level of security that exceeds that offered by the Services. If you fail to notify us, then you acknowledge and agree that the security procedures of the Services are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use.

F.   REFUSAL TO PROCESS COMMUNICATIONS.

We may delay or refuse to process any requested Service, including Bill Pay, ACH entries, wire transfer, payment orders or other money transactions, or any other Communication from you. We may do so for any reason or for no reason. We may provide notice to you, but are not obligated to do so. We may do so, for example, if: (a) processing would or may exceed the available funds in your affected Account; (b) the Communication is not authenticated to our satisfaction or we believe it may not have been authorized by you; (c) the Communication contains incorrect, inconsistent, ambiguous, or missing information; (d) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; or (e) for any other reason under this Agreement. You agree that we will have no liability to you or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal.

G.   YOUR ADDITIONAL RESPONSIBILITIES.

1.   Data Retention. You will retain data on file adequate to permit remaking or reconstruction of all requested Services (including Bill Pay, ACH entries, wire transfer, payment orders or other money transactions) for one year following the date of the execution of the request to which such data relate, and will provide the data to us upon our request. You agree to determine promptly the accuracy of all records and information regarding a Service and to notify us immediately of any errors in such records or information. Nothing in this Agreement relieves you from: (a) any responsibility imposed by law, regulation or contract with regard to the maintenance records; or (b) any responsibility to perform audits and account reviewers customarily conducted by persons or entities whose businesses are similar to your business.

2.   Advice of Payment; Duty to Examine. We will provide you with a confirmation, advice or other record of wire, ACH and Tax Transfers transactions.

You agree to examine any records or monthly account statements promptly upon receipt. You will notify us immediately, and in no event later than 14 days after receipt of the record or account statement, whichever is earlier, of the existence of any errors, unauthorized transactions, or irregularities reflected on the record or on the account statement. If you fail to notify us of any such discrepancy with 14 calendar days of receipt of the record or statement containing such information, you agree that we will not be liable for any other losses resulting from your failure to give such notice or for any loss of interest with respect to a transaction that is or should have been shown. If you fail to notify us of any such discrepancy within 60 days of receipt of such statement or report, you will be precluded from asserting the discrepancy against us. For purposes of this Section, you will be deemed to have "received" a periodic statement at the earlier of the time that (a) we first make it available to you for pick-up by you; or (b) the statement or the information is mailed or otherwise made available to you electronically by means of a Service.

3.   Providing Personal and Financial Information. You agree to provide true, accurate, current and complete personal and financial information about yourself (and, for a business, about affiliates) as requested. You agree to not misrepresent your identity.

4.   Equipment. You are responsible for and must provide all telephone and other equipment, software (other than any software provided by us) and services necessary to access the Service.

5.   Collection. If we initiate collection proceedings against you in an effort to recover any amounts owed, you agree to reimburse us for all costs and expenses, including attorneys’ fees. “Attorneys’ fees” includes reasonable charges for the time expended by in-house counsel.

H.   DOMESTIC/FOREIGN WIRE TRANSFERS. The Cash Management Service allows you to transfer funds from your Account(s) to an account or beneficiary at another financial institution.

1.   A Communication that contains wire transfer instructions delivered to us in your name will be authenticated using the security procedures, as described above. You will be responsible for and bound by such Communications, as set forth in that Section or as otherwise allowed by law.

2.   Amendment and Cancellation. You will have no right to cancel or amend a wire transfer instruction after its receipt by us. However, we may use reasonable efforts to act on a request by you to cancel or amend an instruction prior to executing it, but will have no liability if cancellation or amendment is not effected. Furthermore, you will indemnify and hold us harmless from any and all liabilities, costs and expenses we may incur in its amendment or cancellation efforts, as set forth in Section XIV.

3.   Foreign Currency Transactions. If you request a wire transfer in United States dollars to a foreign country, we may transfer payment in the currency of the beneficiary’s bank’s country at our or at that bank’s buying rate of exchange for United States dollar transfers, or as using any other conversion or market chosen by us. If for any reason the transfer is returned, you agree to accept the refund in United States dollars in the amount of the foreign money credit, based on the buying rate of the bank converting the currency to United States dollars on the date of refund, less any charges and expenses incurred by us or others involved in handling your funds.

4.   Reliance On Identifying Numbers. If your wire transfer instruction contains a name and account number, payment may be made by us and/or by other banks to which the instruction is forwarded based solely on the account number, even if the account number identifies a beneficiary different from the beneficiary named by you. You acknowledge that we and other banks to which a wire transfer instruction is forwarded may rely on any bank identification number supplied by you as a means to identify any other bank, even if the identification number is different than the bank named by you. Your obligation to pay the amount of the wire transfer to us is not excused in such circumstances.

5.   Designation Of Funds Transfer System And/Or Intermediary Bank. You agree and instruct us to use our discretion in choosing the funds transfer mechanism used to execute a wire transfer request. For example, we may choose from one of the following: Fedwire System, Clearing House Interbank Payments System, Society for World-Wide Interbank Financial Telecommunications, an intermediary bank identified by the foregoing systems or banks as a correspondent bank of the beneficiary’s bank, or internal transfer or letter. You agree to be bound by the rules of the funds transfer payment system utilized.

I.   ACH. The Cash Management Service allows you to originate electronic fund transfer requests between your Accounts with us and accounts at other financial institutions using the Automated Clearing House (ACH) network, on either a one-time or recurring basis. A separate ACH originator agreement is required between you and us, which will govern the acceptance and liability of ACH origination requests and ACH Entries, except that ACH data delivered to us in your name will be authenticated using the security procedures as described in this Agreement.

J.   TAX PAYMENT SERVICE

1.   You appoint us to act as your agent for the purpose of making tax payments and deposits on your behalf. Upon our request, you agree to execute such additional enrollment forms and authorizations as we may request. You authorize us to release account and tax payment information to any taxing authority in performing the Tax Payment Service (“Tax Service”) and to confirm payments.

2.   YOU MUST BE PRE-ENROLLED WITH THE FEDERAL AND/OR STATE TAXING AUTHORITIES PRIOR TO USING OUR TAX PAYMENT SERVICE. You warrant that you are enrolled in the Electronic Federal Tax Payment System (EFTPS) and have selected the ACH Credit option. You also warrant that all special requirements of the EFTPS system have been met. You also warrant that you have made appropriate enrollment with each state taxing authority, as applicable.

3.   You are solely responsible for determining the amount of any taxes due and transmitting the correct payment information in accordance with our procedures. You must furnish us with complete and accurate tax payment information. We are not responsible for: (i) determining the correctness of any tax computation or payment; (ii) questioning the timing or amount of the payment; (iii) determining or questioning the correctness of any report or information submitted by you (even if it appears incorrect on its face); or (iv) any penalty which may be imposed if you instruct us to make a payment after our cut-off time or the date the tax payment is due.

4.   We will notify you orally, electronically or in writing if we are unable to process any payment in the manner attempted by the Tax Service, and will do so no later than the business day following the payment date. If you fail to maintain sufficient collected and available funds in your account, we may refuse to perform the Tax Payment. If any payment is rejected, it will be your responsibility to resubmit the payment instruction. If you do not have sufficient or available funds, you may be charged an insufficient funds fee and any other fees or charges applicable to the transaction.

5.   When we receive your payment instruction to make a tax payment, we will charge your Account for the amount of the payment(s). The funds will be held by us as a non-interest bearing deposit liability to you, but will not be held in trust. Until we make your tax payment, your funds will be subject to offset for any debts owed to us.

6.   You assume the risk of any failure to submit payment instructions to us in a timely and correct manner. Payments should be submitted at least two business days prior to the due date. Any interruption of the Tax Service, regardless of the reason, will not relieve you of your obligation to make a tax payment or report. You are responsible for promptly making required tax payment or report. You are responsible for promptly making required tax payments by another means in the event there is an interruption in the Tax Service.

7.   You agree to be bound by the rules set by the National Automated Clearing House Association (NACHA), as amended from time to time, and all laws and regulations of the United States.

8.   You acknowledge that our employees are not authorized or permitted to give tax advice to you. You agree not to seek or place any reliance upon tax advice from us or our employees. If the Tax Service is not used for a period of one hundred and eighty (180) days, the Tax Service may be removed or disabled. To cancel a Tax Service Communication and the payment instruction that you have scheduled, you must cancel online prior to the cut-off time on the processing date. Payments cannot be cancelled after this time. We may, at our discretion, seek to assist you in attempting to cancel or amend any payment but are not obligated to do so. If we do, you will indemnify us in accordance with this Agreement for any losses we may suffer in connection with our efforts.

This Agreement will be governed by California law (excluding conflicts of law principals). You agree to indemnify and hold us harmless for any taxes, losses or other costs or liabilities (including attorneys fees and costs) resulting from your action or inaction in connection with the on-line services. This Agreement and the other agreements may be amended by us from time to time, and we may provide you an electronic notice of the amendment by e-mail to you or by posting on our web site.