|
6 7.2 Bank is authorized to accept
<br />and honor any files and/or SWIFT Instructions sent from
<br />any of Customer's SWIFT BIC(s) without making any
<br />inquiry as to the validity or sufficiency of the SWIFT
<br />Instructions and to consider the SWIFT Instructions of like
<br />force and effect as written orders made in accordance with
<br />the signing authorities held by Bank from time to time for
<br />the operation of Customer's Account(s) with Bank.
<br />6.7.3 Without limiting the scope of
<br />Section 6.7.2, Bank is authorized to disclose information
<br />about Customer, its Accounts and banking relationship with
<br />Bank, including any changes to such information, in
<br />response to and as directed in the SWIFT Instructions as
<br />required to process the same.
<br />6.7.4 Bank shall not be liable for
<br />any loss or damage incurred by Customer, or any third
<br />party arising from or in any way related to Bank acting
<br />upon or refusing to act upon any SWIFT Instructions from
<br />Customer's BIC(s), unless due to the gross negligence or
<br />willful misconduct of Bank. Notwithstanding the foregoing,
<br />in no event shall Bank be liable for any indirect, special or
<br />inconsequential damages incurred by Customer or any third
<br />party arising from or in any way related to Bank acting
<br />upon or refusing to act upon any SWIFT Instructions.
<br />6 7.5 Customer hereby agrees to
<br />indemnify and hold Bank harmless from and against any
<br />losses, liabilities, claims, damages, fees, or expenses
<br />whatsoever that Bank may suffer, incur or be under or that
<br />may be brought against Bank, pursuant to, in connection
<br />with, or in any way related to Bank acting upon, delaying
<br />in acting upon or refusing to act upon any SWIFT
<br />Instructions from Customer's BIC(s).
<br />6.8 Termination of SWIFT Services. In
<br />addition to but not in lieu of the provisions of the Cash
<br />Management Master Agreement, the SWIFT Services shall
<br />terminate automatically in the event that:
<br />either party loses user status as defined in the
<br />SWIFT General Terms and Conditions of the By-
<br />laws;
<br />SWIFT has ceased to provide, and not resumed
<br />providing, any of the SWIFT messaging services;
<br />SWIFT, in exercise of its rights under the SWIFT
<br />Rules, has required either party to temunate the
<br />SWIFT Services; or
<br />Bank has ceased to provide the Cash
<br />Management Services.
<br />6.9 Suspension of SWIFT Services. In
<br />addition to but not in lieu of the provisions of the Cash
<br />Management Master Agreement, either party may suspend
<br />the use of the SWIFT Services for such period(s) as it
<br />considers appropriate in its absolute discretion by notice to
<br />the other party if: (a) suspension is necessary for the
<br />purposes of (routine or emergency) maintenance; (b) for
<br />security or technical reasons, including a suspension of the
<br />SWIFT messaging services by SWIFT, use of the SWIFT
<br />messaging services is impossible or cannot be achieved
<br />without unreasonable cost to Bank or Customer; (c)
<br />suspension is required by SWIFT or the SWIFT Rules; or
<br />(d) suspension is necessary to avoid or reduce any material
<br />damage or disadvantage to either party.
<br />7. Security Procedures.
<br />7.1 Customer agrees that the security
<br />procedures set forth or incorporated by reference in this
<br />Appendix (including without limitation the SWIFT Security
<br />Procedures), the Cash Management Master Agreement and/or
<br />associated documents provided by Bank, including without
<br />limitation the Services' Setup Form(s), are a commercially
<br />reasonable method of providing security against unauthorized
<br />access to or mterception of transmissions between Customer
<br />and Bank (hereinafter collectively the "Security Procedures").
<br />Any transmission by Customer shall be deemed authorized if
<br />transmitted in accordance with the Security Procedures. Bank
<br />may, from time to time, modify the Security Procedures. Such
<br />modifications shall become effective upon receipt of notice by
<br />Customer or such later date as may be stated in the Bank's
<br />notice to Customer. If Customer fails to object to such
<br />change, it shall be deemed to agree to such change.
<br />7.2 With respect to SWIFT in particular,
<br />Customer further acknowledges that the SWIFT Security
<br />Procedures are the only security procedures offered for
<br />SWIFT Instructions that Customer transmits through the
<br />SWIFT Services. Customer has solely determined that the
<br />SWIFT Security Procedures best meet Customer's
<br />requirements with regard to the size, type and frequency of
<br />the SWIFT Instructions issued by Customer to Bank using
<br />the SWIFT Services and that the SWIFT Security
<br />Procedures are a commercially reasonable method of
<br />providing security against unauthorized access to or
<br />interception of transmissions between Customer and Bank.
<br />Customer acknowledges that it is bound by the terms and
<br />conditions of each SWIFT Instruction, including any
<br />request to cancel or amend a SWIFT Instruction, whether
<br />or not authorized by Customer, that Bank receives in
<br />Customer's name or under Customer's BIC(s)through the
<br />SWIFT Services and in accordance with the SWIFT
<br />Security Procedures.
<br />7.3 Nothing in this Appendix shall be
<br />deemed a representation or warranty by Bank that FTP,
<br />Secure Web, SFTP or SWIFT communications are secure.
<br />Rather, after review of the altematives, Customer has selected
<br />a communication method that it believes best suits its needs.
<br />7.4 Bank and/or SWIFT (as applicable) may,
<br />from time to tune, propose different, additional or enhanced
<br />security procedures to Customer. Customer understands and
<br />agrees that if it declines to use any such enhanced procedures,
<br />it will be liable for any losses that would have been prevented
<br />by such procedures. Notwithstanding anything else contained
<br />in this Appendix, if Bank and/or SWIFT believes immediate
<br />action is required for the security of Bank, SWIFT or
<br />Customer funds or data, Bank and/or SWIFT may initiate
<br />additional security procedures immediately and provide
<br />prompt subsequent notice thereof to Customer.
<br />HC# 4846-4388-3572 ».1 Page 54 of 58 0716
<br />P68
<br />
|