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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
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