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customers of Bank, as well as on Customer's own behalf
<br />(hereinafter, when acting in such capacity, referred to as
<br />"Customer As Service Provider"). Customer shall execute
<br />any such other agreement(s) or documents as deemed
<br />necessary or appropriate by Bank prior to the initiation or
<br />continuation by Customer of any Services in such capacity
<br />Customer agrees that Bank retains the nght to reject any
<br />request by Customer to engage in Customer As Service
<br />Provider activities as well as any transactions initiated by
<br />Customer in such capacity, m Bank's sole discretion. In the
<br />event Bank approves Customer's use of the Services in the
<br />capacity of Customer As Service Provider, then the
<br />following shall also apply-
<br />(a)
<br />pply
<br />(a) Customer represents and warrants to Bank
<br />that each Customer client has given Customer authority to
<br />access and conduct transactions with respect to its
<br />Accounts through use of any of the Services to the same
<br />extent as if Customer owned them, including m the
<br />capacity of a "third party service provider;"
<br />(b) each reference to "Customer" in the
<br />Agreement will be deemed to be a collective reference to
<br />Customer and each Customer client whose Accounts are
<br />included in Bank's implementation of Customer's set-up
<br />for the Services;
<br />(c) all of the provisions set forth in the
<br />Agreement will apply to Customer client's Account(s) as if
<br />Customer owned them;
<br />(d) each person who is authorized to act on
<br />Customer's behalf with respect to a Service is also
<br />authorized to act on Customer's behalf to the same extent
<br />with respect to the Accounts of each Customer client whose
<br />Accounts are included in Bank's implementation of
<br />Customer's set-up for that Service; and
<br />(e) Customer shall be liable for all monetary,
<br />confidentiality and other obligations to Bank under this
<br />Agreement as they relate to Customer's use of the Services
<br />for itself as well as each such Customer client. Bank may
<br />require written confirmation from each Customer client that
<br />it has authorized Customer to include its Accounts in
<br />Bank's implementation of Customer's set-up for the
<br />Services, and Customer agrees to notify Bank immediately
<br />if that authority is revoked or changed.
<br />33.2 Customer Engaging a Third -Party
<br />Service Provider. Subject to Bank's pnor approval and in
<br />its sole and exclusive discretion, Customer may appoint a
<br />third -party service provider to act as Customer's agent to
<br />use one or more of the Services (hereinafter such third -
<br />party to be referred to as "Customer's Third -Party Service
<br />Provider"). In such event, all transactions received by
<br />Bank from Customer's Third -Party Service Provider are
<br />hereby authorized by Customer. All acts and omissions of
<br />Customer's Third -Party Service Provider shall be the acts,
<br />omissions and responsibility of Customer and shall be
<br />governed by the provisions of this Agreement. Customer
<br />agrees, jomtly and severally with Customer's Third -Party
<br />Service Provider, to indemnify and hold Bank harmless
<br />from any and all liabilities, losses, damages, costs and
<br />expenses of any kind (including, without limitation, the
<br />reasonable fees and disbursements of counsel in connection
<br />with any investigative, administrative or judicial
<br />proceedings, whether or not Bank shall be designated a
<br />party thereto) which may be incurred by Bank relating to or
<br />ansing out of the acts or omissions of Customer's Third -
<br />Party Service Provider on behalf of Customer. Customer
<br />and Customer's Third -Party Service Provider shall execute
<br />any such other agreement(s) or documents as deemed
<br />necessary or appropriate by Bank prior to the initiation or
<br />any continuation by Customer's Third -Party Service
<br />Provider of any Services on Customer's behalf. Notice of
<br />any termination of Customer's Third -Party Service
<br />Provider's authonty to use one or more of the Services on
<br />Customer's behalf shall be given to Bank in writing. The
<br />effective date of such termination shall be ten (10) Business
<br />Days after Bank receives written notice of such
<br />termination. Customer agrees that Bank retains the right to
<br />reject any transactions initiated by Customer's Third -Party
<br />Service Provider in its sole discretion.
<br />34. Section Headings. The section headings used in
<br />this Agreement are only meant to organize this Agreement,
<br />and do not in any way limit or define Customer's or Bank's
<br />rights or obligations.
<br />35. Confidentiality. In further consideration of the terms
<br />of this Agreement, Customer expressly covenants and agrees
<br />that, effective as of its execution of this Agreement,
<br />Customer will not disclose, nor authorize its agents or
<br />attorneys to disclose, directly or indirectly, orally or in
<br />writing, spontaneously or in response to inquiries from any
<br />entity or person, the terms of this Agreement, and any other
<br />document or agreement to which reference is made herein,
<br />except pursuant to any order, summons or other legal process
<br />issued by any state or federal court, or any state, federal,
<br />municipal or other governmental agency, or as reasonably
<br />necessary to tax advisors, attorneys, accountants, and other
<br />professionals, or as necessary to fulfill any contractual
<br />undertakings hereunder. Customer expressly recognizes that
<br />any unauthorized disclosure of information specified herein,
<br />or any threatened disclosure, would cause irreparable injury
<br />to Bank which may not be adequately compensated by
<br />damages. Accordingly, in the event of a breach or threatened
<br />breach of the provisions of Section 35 of this Agreement by
<br />Customer, Bank shall be entitled to an injunction restraining
<br />and prohibiting Customer from doing so or continuing to do
<br />so. Nothing herein shall be construed as prohibiting Bank
<br />from pursuing any other remedies available for such breach
<br />or threatened breach, mcluding the recovery of damages.
<br />The restrictions set forth m this Section 35 shall not apply to
<br />information which (i) was, is or becomes public knowledge
<br />not in violation of this Section 35; (ii) is acquired by
<br />Customers from a third party lawfully possessing such
<br />information, (iii) is disclosed in testimony, pleadings or
<br />papers filed by Bank in any judicial proceeding; or (iv) is
<br />disclosed pursuant to state law. Customer understands and
<br />agrees that this Section 35 is a material provision of this
<br />Agreement, that Bank would not have entered into this
<br />Agreement without such confidentiality obligations, and that
<br />any breach of this Section 35 shall be a material breach of
<br />this Agreement.
<br />11 of 58 0916
<br />P25
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