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Code or other statute or regulation relating to bankruptcy or <br />relief of debtors, (iii) in the event of a material breach, <br />default in the performance or observance of any term, or <br />material breach of any representation or warranty by <br />Customer, (iv) in the event of default by Customer in the <br />payment of any sum owed by Customer to Bank hereunder <br />or under any note or other agreement, as may be defined <br />therein, (v) if there has been a seizure, attachment, or <br />garnishment of Customer's Accounts, assets or properties, <br />(vi) if Bank believes immediate action is necessary for the <br />security of Bank or Customer funds or (vii) if Bank <br />reasonably believes that the continued provision of <br />Services in accordance with the terms of this Agreement or <br />any Appendix would violate federal, state or local laws or <br />regulations, or would subject Bank to unacceptable nsk of <br />loss. In the event of any termination hereunder, all fees due <br />Bank under this Agreement as of the time of termination <br />shall become immediately due and payable. <br />Notwithstanding any termination, this Agreement shall <br />remain in full force and effect with respect to all <br />transactions initiated prior to such termination. <br />15. Limitation of Liability; Disclaimer of <br />Warranties. <br />151 Customer acknowledges that Bank's <br />fees and charges for the Services are very small in relation <br />to the amounts of transfers initiated through the Services <br />and, as a result, Bank's willingness to provide the Services <br />is based on the limitations and allocations of liability <br />contained in this Agreement. Unless expressly prohibited or <br />otherwise restricted by applicable law, the liability of Bank <br />in connection with the Services will be limited to actual <br />damages sustained by Customer and only to the extent such <br />damages are a direct result of Bank's gross negligence, <br />willful misconduct, or bad faith. In no event shall Bank be <br />liable for any consequential, special, incidental, indirect, <br />punitive or similar loss or damage that Customer may <br />suffer or incur in connection with the Services, including, <br />without limitation, attomeys' fees, lost earnings or profits <br />and loss or damage from subsequent wrongful dishonor <br />resulting from Bank's acts, regardless of whether the <br />likelihood of such loss or damage was known by Bank and <br />regardless of the basis, theory or nature of the action on <br />which a claim is asserted. Unless expressly prohibited by <br />or otherwise restncted by applicable law, and without <br />limiting the foregoing, Bank's aggregate liability to <br />Customer for all losses, damages, and expenses incurred in <br />connection with any single claim shall not exceed an <br />amount equal to the monthly billing paid by, charged to or <br />otherwise assessed against Customer for Services over the <br />three (3) month -period immediately preceding the date on <br />which the damage or injury giving rise to such claim is <br />alleged to have occurred or such fewer number of <br />preceding months as this Agreement has been in effect. <br />Notwithstanding any of the foregoing, for transactions <br />which are subject to Article 4A of the UCC, Bank shall be <br />liable for such damages as may be required or provided <br />under Article 4A or the Fedwire Regulations, as applicable, <br />except as otherwise agreed in this Agreement. This <br />Agreement is only between Bank and Customer, and Bank <br />shall have no liability hereunder to any third party <br />15.2 Except as otherwise expressly provided <br />in Section 8 of this Agreement, Bank shall not be liable for <br />any loss, damage or injury caused by any act or omission of <br />any third party; for any charges imposed by any third party; <br />or for any loss, damage or injury caused by any failure of <br />the hardware or software utilized by a third party to provide <br />Services to Customer. <br />15.3 Bank shall not be liable or responsible <br />for damages incurred as a result of data supplied by <br />Customer that is inaccurate, mcomplete, not current, or lost <br />in transmission. It is understood that Bank assumes no <br />liability or responsibility for the inaccuracy, <br />incompleteness or incorrectness of data as a result of such <br />data having been supplied to Customer through data <br />transmission. <br />15.4 Bank is not liable for failing to act <br />sooner than required by any Appendix or applicable law. <br />Bank also has no liability for failing to take action if Bank <br />had discretion not to act. <br />15.5 Bank shall not be responsible for <br />Customer's acts or omissions (including, without limitation, <br />the amount, accuracy, timeliness of transmittal or due <br />authorization of any entry, funds transfer order, or other <br />instruction received from Customer) or the acts or omissions <br />of any other person, including, without limitation, any <br />Automated Clearing House processor, any Federal Reserve <br />Bank, any financial institution or bank, any transmission or <br />communication facility, any receiver or receiving depository <br />financial institution, including, without limitation, the return <br />of an entry or rejection of a funds transfer order by such <br />receiver or receiving depository financial institutions, and no <br />such person shall be deemed Bank's agent. Bank shall be <br />excused from failing to transmit or delay in transmitting an <br />entry or funds transfer order if such transmittal would result in <br />Bank's having exceeded any limitation upon its intra -day net <br />funds position established pursuant to Federal Reserve <br />guidelines or otherwise violating any provision of any risk <br />control program of the Federal Reserve or any rule or <br />regulation of any other U.S. governmental regulatory <br />authority. In no event shall Bank be liable for any damages <br />resulting from Bank's action or inaction which is consistent <br />with regulations issued by the Board of Governors of the <br />Federal Reserve System, operating circulars issued by a <br />Federal Reserve Bank or general banking customs and <br />usage. To the extent required by applicable laws, Bank will <br />compensate Customer for loss of interest on funds as a <br />direct result of Bank's failure to comply with such laws in <br />executing electronic transfers of funds, if such failure was <br />within Bank's control. Bank shall not be liable for <br />Customer's attorney's fees in connection with any such <br />claim. <br />15.6 EXCEPT AS OTHERWISE SET <br />FORTH IN THIS AGREEMENT, CUSTOMER <br />EXPRESSLY AGREES THAT USE OF THE SERVICES <br />IS AT CUSTOMER'S SOLE RISK, AND THE SERVICE <br />IS PROVIDED "AS IS," AND BANK AND ITS <br />SERVICE PROVIDERS AND AGENTS DO NOT <br />MAKE, AND EXPRESSLY DISCLAIM ANY, <br />8 of 58 0916 <br />P22 <br />