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such damages, and each party hereby releases and waives any
<br />claims against the other party for such damages.
<br />(d) Upon a Default by the Company, TD, in
<br />addition to any rights available to it under applicable law, shall
<br />have the right to immediately set off against amounts due'
<br />under this Agreement, any monies in any unrestricted deposit
<br />account which the Company may maintain with TD, without,
<br />prior notice to the Company. TD shall be deemed to have
<br />exercised such right to set off and to have made a charge
<br />against any such money immediately upon the occurrence of
<br />any of the foregoing events of default even though such
<br />charge is made or entered on the books of TD subsequent to
<br />those events. In addition, if this Agreement is secured, even'
<br />as a result of cross collateralization, TD shall also have such
<br />rights as are set forth in the applicable security agreement. i
<br />(e) TD's liability to the Company hereunder shall!
<br />be limited to direct damages arising from TD's gross(
<br />negligence or willful misconduct. Regardless of the form of
<br />action, in no event shall TD be liable for any indirect,,
<br />consequential, punitive, exemplary or special damages, even if
<br />TD is advised as to the possibility of such damages. Except
<br />for liability which the Company may otherwise incur under
<br />this Agreement, the Company's liability to TD hereunder shall
<br />be limited to direct damages arising from the Company's'
<br />negligence or willful misconduct. Regardless of the form oft
<br />the action, in no event shall the Company be liable for any,
<br />indirect, consequential or special damages, even if the!
<br />Company is advised as to the possibility of such damages.
<br />Without limiting the generality of anything contained in thisa
<br />section, TD shall not be liable for any damages of any kind, no
<br />matter what the cause, that arise, occur or result from: (i) the,
<br />Company using the TD Commercial Plus Card Online system,:
<br />(ii) the Company's opening ports on its firewalls, or (iii)1
<br />problems with or defects in equipment, software or services
<br />not provided by TD.
<br />SECTION 6
<br />MISCELLANEOUS
<br />6.1 REPRESENTATIONS AND
<br />WARRANTIES. Each party represents and warrants that this.
<br />Agreement constitutes the legal, valid, binding and
<br />enforceable agreement of such party and that its execution and
<br />performance of this Agreement (a) do not constitute a breach'
<br />of any agreement of such party with any third party, or of any,
<br />duty arising in law or equity, (b) do not violate any law, rule
<br />or regulation applicable to it, (c) are within its corporate;
<br />powers, and (d) have been authorized by all necessary
<br />corporate action of such party. In addition, if this Agreement!
<br />is secured, even as a result of cross collateralization, the:
<br />Company also makes the representations and warranties set
<br />forth in the applicable security agreement.
<br />6.2 NOTICES. Except as otherwise provided
<br />herein, any notice or other communication required to be
<br />given under this Agreement may be given electronically, using
<br />the TD Commercial Plus Card Online system or the e-mail
<br />address of the primary contact for the Company. TD shall
<br />incur no liability to the Company in acting upon any notice or
<br />other communication given electronically which it believes in
<br />good faith to have been made by an Authorized User. Any
<br />notice or other communication required to be in writing shall
<br />be delivered personally, by overnight delivery via a nationally -
<br />recognized delivery service or by prepaid registered or
<br />certified mail, return receipt requested, addressed to the
<br />relevant party at such address as such party may from time to
<br />time designate in writing to the other. The date of delivery of
<br />a notice (i) delivered personally shall be deemed to be the date
<br />delivered; (ii) sent by overnight delivery shall be deemed to be
<br />the following day; and (iii) sent by mail shall be deemed to be
<br />three Business Days after the date on which such notice is
<br />deposited in the United States mail.
<br />6.3 CHANGES. During the term of this
<br />Agreement, as described in Section 5.2, TD may not amend
<br />the Fees described in Section 5.1 as detailed in the Rebate
<br />Schedule. Notwithstanding the forgoing, TD may change
<br />Fees associated with new or additional services or features that
<br />Company may request that are not included in Rebate
<br />Schedule.
<br />With respect to other changes to the Agreement, not
<br />including Fees as described in Section 5.1, TD may, at any
<br />time, amend this Agreement, any Cardholder Agreement,
<br />and/or the Program in its sole discretion. Except as
<br />expressly provided otherwise elsewhere in this Agreement
<br />or as required by applicable law, changes to this
<br />Agreement and/or the Program generally will be effective
<br />immediately upon notice to Company. Changes to any
<br />Cardholder Agreement shall be effective immediately upon
<br />receipt by the Cardholder of notice of such changes unless
<br />otherwise required by applicable law. Company will be
<br />deemed to accept any such changes if Company or any
<br />Cardholder utilizes the Program after the date on which the
<br />change becomes effective. Company will remain obligated
<br />under this Agreement, including without limitation, being
<br />obligated to pay all amounts owing hereunder, even if TD
<br />amends this Agreement. Notwithstanding anything to the
<br />contrary in this Agreement, if TD believes immediate
<br />action is required for security purposes, TD may
<br />immediately initiate changes to any security procedures
<br />and provide prompt subsequent notice thereof to Company.
<br />6.4 FINANCIAL STATEMENTS; NOTICE OF
<br />BOND RATING CHANGE. The Company agrees to furnish
<br />TD copies of its financial statements, in a form acceptable to
<br />TD, as soon as available, but not later than 150 days following
<br />the end of each fiscal year of the Company. All such financial
<br />statements shall include an income statement for the
<br />applicable fiscal year and a balance sheet, shall have been
<br />prepared in accordance with generally accepted accounting
<br />principles, consistently applied, and shall be in accordance
<br />TD Bank 06/15
<br />Internal
<br />P80
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