|
under any SWIFT Business Identifier Code (BIC) that: (1)
<br />is unique to Customer, (2) is owned by a parent company or
<br />other affiliate of Customer, or (3) is owned by an unrelated
<br />third party and/or that is otherwise operating by agreement
<br />with Customer as Customer's agent for purposes of
<br />Customer's use of the SWIFT Services. Each such BIC(s)
<br />shall be identified by or through Customer in the Services'
<br />Setup Form(s) (hereinafter, collectively, "Customer's
<br />BIC(s)"). Customer acknowledges that the Services' Setup
<br />Form(s) shall also set out the key features and requirements
<br />that shall apply to Customer's use of the SWIFT Services,
<br />which may include but are not limited to the following:
<br />i. the SWIFT messaging services to be
<br />used to transmit SWIFT Instructions to Bank (e.g., SWIFT
<br />FIN and/or SWIFTNet FileAct);
<br />ii. the SWIFT message types and file
<br />formats that are supported by Bank under the SWIFT
<br />Services, including the types of Payment Orders that
<br />Customer may transmit;
<br />iii. the technical parameters associated
<br />with and required for SWIFTNet FileAct (e.g., file transfer
<br />mode options and file transfer fields, etc.);
<br />iv. the type of information that Bank shall
<br />provide in conjunction with any SWIFT message sent by
<br />Bank to Customer within the SWIFT Services, including
<br />any account status or other information made available by
<br />Bank
<br />v. the Customer Account(s) to be used in
<br />connection with the SWIFT Services; and
<br />vi. the SWIFT access model (e.g.,
<br />SCORE, MA-CUG, etc.) and connectivity (e.g., direct
<br />access, Alliance Lite, member, service bureau, etc.)
<br />associated with Customer's use of the SWIFT Services.
<br />6.3.2 SWIFT Instructions made in
<br />accordance with this Appendix and the SWIFT Rules shall
<br />be deemed to have been given by an individual authonzed
<br />to act on behalf of Customer. Bank will act in reliance on
<br />the accuracy and completeness of the SWIFT Instruction
<br />received by Bank in Customer's name or via Customer's
<br />BIC(s). Customer shall ensure that any SWIFT Instruction
<br />sent to Bank fully and accurately reflects the advice,
<br />request, instruction or communication intended to be
<br />provided to Bank by Customer and is duly authorized.
<br />Customer irrevocably authorizes Bank to (a) treat as
<br />accurate, authentic and properly authorized, rely upon and
<br />implement any SWIFT Instruction received by Bank which
<br />originates (or appears to originate) from Customer
<br />(including, in the case of a Payment Order, debiting the
<br />Account as specified in the SWIFT Instruction), and (b) to
<br />process each such SWIFT Instruction as described in this
<br />Section 6.
<br />6.3.3 Notwithstanding the
<br />foregoing, Bank is not obligated to act on a SWIFT
<br />Instruction or treat a SWIFT Instruction as accurate,
<br />authentic or authorized, if:
<br />the SWIFT Instruction does not meet the
<br />requirements of the SWIFT Rules or
<br />otherwise appears not to have been
<br />nrenared or sent in accordance with this
<br />Section:
<br />Bank considers that the execution of that
<br />SWIFT Instruction may place Bank in
<br />breach of any law or regulation; or
<br />Bank reasonably suspects that the
<br />SWIFT Instruction received by Bank (a)
<br />may not fully and accurately reflect an
<br />advice. request, instruction or
<br />communication that Customer intended
<br />to give to Bank; or (b) may not have
<br />been given in accordance with
<br />Customer's authorization procedures.
<br />Except to the extent prevented by applicable law or
<br />regulation, Bank shall notify Customer if, under this
<br />Section 6.3, it does not act on a SWIFT Instruction.
<br />6.4 Secure Communications Channel.
<br />6.4.1 SWIFT offers SWIFT
<br />messaging services as a secure communications channel.
<br />SWIFT has established procedures and requirements for
<br />controlling access to SWIFT messaging services (each, an
<br />"Access Control") that may include, without limitation,
<br />access codes, message authentication codes, secure card
<br />readers, digital signatures, and hardware security modules.
<br />In addition, SWIFT authenticates certain messages based
<br />on SWIFT message type prior to accepting thein for routing
<br />as SWIFT Instructions (each, an "Authenticated Message").
<br />This authentication may include confirming that the sender
<br />and recipient of the message have exchanged bilateral keys
<br />("BICE"), entered into a relationship management
<br />application ("RMA") agreement, or taken other steps to
<br />secure the transmission of SWIFT Instructions between
<br />them as SWIFT requires from time to time (each, an
<br />"Authentication Procedure"). Collectively, the Access
<br />Controls and Authentication Procedures shall be referred to
<br />herein as the "SWIFT Security Procedures."
<br />6 4.2 Bank and Customer rely on
<br />SWIFT's Access Controls and, in the case of an
<br />Authenticated Message, the Authentication Procedures, if
<br />any, that SWIFT requires to secure the transmission of
<br />Customer's SWIFT Instructions. Bank does not undertake
<br />and will have no obligation to Customer to separately
<br />authenticate any SWIFT Instruction that Bank receives in
<br />Customer's name or under Customer's BIC, whether or not
<br />Customer actually issued the SWIFT Instruction. Bank
<br />may, at Bank's sole election and option, contact Customer
<br />with respect to any SWIFT Instruction that Bank receives
<br />in Customer's name or under Customer's BIC, but Bank's
<br />election to contact Customer with respect to one or more
<br />SWIFT Instruction will not obligate Bank to contact
<br />Customer with respect to subsequent SWIFT Instructions
<br />that Bank receives in Customer's name or under
<br />Customer's BIC
<br />11C# 4846-4388-3571 v.1 page 52 of 58
<br />0716
<br />P66
<br />
|