|
A TRUE COPY
<br /> CERTIFICATION ON LAST PAGE
<br /> J.R. SMITH, CLERIC
<br /> Code or other statute or regulation relating to bankruptcy or 15.2 Except as otherwise expressly provided
<br /> relief of debtors, (iii) in the event of a material breach, in Section 8 of this Agreement,Bank shall not be liable for
<br /> default in the performance or observance of any term, or any loss,damage or injury caused by any act or omission of
<br /> material breach of any representation or warranty by any third party;for any charges imposed by any third party;
<br /> Customer, (iv) in the event of default by Customer in the or for any loss, damage or injury caused by any failure of
<br /> payment of any sum owed by Customer to Bank hereunder the hardware or software utilized by a third party to provide
<br /> or under any note or other agreement, as may be defined Services to Customer.
<br /> therein, (v) if there has been a seizure, attachment, or
<br /> garnishment of Customer's Accounts, assets or properties, 15.3 Bank shall not be liable or responsible
<br /> (vi)if Bank believes immediate action is necessary for the for damages incurred as a result of data supplied by
<br /> security of Bank or Customer funds or (vii) if Bank Customer that is inaccurate,incomplete,not current,or lost
<br /> reasonably believes that the continued envision of
<br /> asO y p in transmission. It is understood that Bank assumes no
<br /> Services in accordance with the terms of this Agreement or liability or responsibility for the inaccuracy,
<br /> any Appendix would violate federal,state or local laws or incompleteness or incorrectness of data as a result of such
<br /> regulations,or would subject Bank to unacceptable risk of data having been supplied to Customer through data
<br /> loss. In the event of any termination hereunder,all fees due transmission.
<br /> Bank under this Agreement as of the time of termination
<br /> shall become immediately due and payable. 15.4 Bank is not liable for failing to act
<br /> Notwithstanding any termination, this Agreement shall sooner than required by any Appendix or applicable law.
<br /> remain in full force and effect with respect to all Bank also has no liability for failing to take action if Bank
<br /> transactions initiated prior to such termination. had discretion not to act.
<br /> 15. Limitation of Liability; Disclaimer of 15.5 Bank shall not be responsible for
<br /> Warranties. Customer's acts or omissions (including, without limitation,
<br /> the amount, accuracy, timeliness of transmittal or due
<br /> 15.1 Customer acknowledges that Bank's authorization of any entry, funds transfer order, or other
<br /> fees and charges for the Services are very small in relation instruction received from Customer)or the acts or omissions
<br /> to the amounts of transfers initiated through the Services of any other person, including, without limitation, any
<br /> and as a resin Bank's willingness to provide the Services
<br /> � � p Automated Clearing House processor, any Federal Reserve
<br /> is based on the limitations and allocations of liability Bank, any financial institution or bank, any transmission or
<br /> contained in this Agreement.Unless expressly prohibited or communication facility, any receiver or receiving depository
<br /> otherwise restricted by applicable law,the liability of Bank financial institution, including, without limitation, the return
<br /> in connection with the Services will be limited to actual of an entry or rejection of a funds transfer order by such
<br /> damages sustained by Customer and only to the extent such receiver or receiving depository financial institutions, and no
<br /> damages are a direct result of Bank's gross negligence, such person shall be deemed Banks agent Bank shall be
<br /> willful misconduct,or bad faith. In no event shall Bank be excused from failing to transmit or delay in transmitting an
<br /> liable for any consequential, special, incidental, indirect, entry or funds transfer order if such transmittal would result in
<br /> punitive or similar loss or damage that Customer may Bank's having exceeded any limitation upon its intra-day net
<br /> suffer or incur in connection with the Services, including, funds position established pursuant to Federal Reserve
<br /> without limitation, attorneys' fees, lost earnings or profits guidelines or otherwise violating any provision of any risk
<br /> and loss or damage from subsequent wrongful dishonor control program of the Federal Reserve or any rule or
<br /> resulting from Bank's acts, regardless of whether the regulation of any other U.S. governmental regulatory
<br /> likelihood of such loss or damage was known by Bank and authority. In no event shall Bank be liable for any damages
<br /> regardless of the basis, theory or nature of the action on resulting from Bank's action or inaction which is consistent
<br /> which a claim is asserted. Unless expressly prohibited by with regulations issued by the Board of Governors of the
<br /> or otherwise restricted by applicable law, and without Federal Reserve System, operating circulars issued by a
<br /> limiting the foregoing, Bank's aggregate liability to Federal Reserve Bank or general banking customs and
<br /> Customer for all losses,damages,and expenses incurred in usage.To the extent required by applicable laws,Bank will
<br /> connection with any single claim shall not exceed an compensate Customer for loss of interest on funds as a
<br /> amount equal to the monthly billing paid by,charged to or direct result of Bank's failure to comply with such laws in
<br /> otherwise assessed against Customer for Services over the executing electronic transfers of funds, if such failure was
<br /> three (3) month-period immediately preceding the date on within Bank's control. Bank shall not be liable for
<br /> which the damage or injury giving rise to such claim is Customer's attorney's fees in connection with any such
<br /> alleged to have occurred or such fewer number of claim.
<br /> preceding months as this Agreement has been in effect.
<br /> Notwithstanding any of the foregoing, for transactions 15.6 EXCEPT AS OTHERWISE SET
<br /> which are subject to Article 4A of the UCC,Bank shall be FORTH IN THIS AGREEMENT, CUSTOMER
<br /> liable for such damages as may be required or provided EXPRESSLY AGREES THAT USE OF THE SERVICES
<br /> under Article 4A or the Fedwire Regulations,as applicable, IS AT CUSTOMER'S SOLE RISK,AND THE SERVICE
<br /> except as otherwise agreed in this Agreement. This IS PROVIDED "AS IS," AND BANK AND ITS
<br /> Agreement is only between Bank and Customer,and Bank SERVICE PROVIDERS AND AGENTS DO NOT
<br /> shall have no liability hereunder to any third party. MAKE, AND EXPRESSLY DISCLAIM ANY,
<br /> 8 of 58 0916
<br />
|