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3.4 Customer is not a "consumer" as such
<br />term is defined in the regulations promulgated pursuant to
<br />the Gramm -Leach -Bliley Act, 15 U.S.C. § 6801 et seq., nor
<br />a legal representative of a "consumer."
<br />3.5 Customer shall use the Services only
<br />for its own lawful business purposes. Customer shall not
<br />use the Services for or on behalf of any third party, except
<br />as may otherwise be approved by Bank in its sole and
<br />exclusive discretion, and as further described in Section 33.
<br />Customer shall take all reasonable measures and exercise
<br />reasonable precautions to ensure that Customer's officers,
<br />employees and Authorized Representatives do not use the
<br />Services for personal, family or household purposes, or for
<br />any other purpose not contemplated by this Agreement.
<br />3.6 Customer agrees not to use or attempt
<br />to use the Services (a) to engage in any illegal purpose or
<br />activity or to violate any applicable law, rule or regulation,
<br />(b) to breach any contract or agreement by which Customer
<br />is bound, or (c) to engage in any Internet or online
<br />gambling transaction, whether or not gambling is legal in
<br />any applicable jurisdiction, or (d) to engage in any
<br />transaction or activity that is not specifically authorized and
<br />permitted by this Agreement. Customer acknowledges and
<br />agrees that Bank has no obligation to monitor Customer's
<br />use of the Services for transactions and activity that is
<br />impermissible or prohibited under the terms of this
<br />Agreement; provided, however, that Bank reserves the right
<br />to decline to execute any transaction or activity that Bank
<br />believes violates the terms of this Agreement.
<br />3.7 Customer and Bank shall comply with
<br />(i) all applicable federal, state and local laws, regulations,
<br />rules and orders; (ii) the Account Agreement; (iii) all
<br />applicable National Automated Clearing House Association
<br />("NACHA") rules, regulations, and policies; (iv) the
<br />Uniform Commercial Code; (v) Office of Foreign Asset
<br />Control ("OFAC") requirements; and (vi) all applicable
<br />laws, regulations and orders administered by the U.S.
<br />Department of the Treasury's Financial Crimes
<br />Enforcement Network ("FinCEN") (collectively (i) through
<br />(vi), "Compliance Laws').
<br />4. Account Agreement; Service Fees,
<br />4.1 Bank and Customer agree that any
<br />Account established by Customer in connection with
<br />Services offered by Bank shall be governed by the Account
<br />Agreement, including one or more fee schedules issued by
<br />Bank for the Account. If there is any conflict between the
<br />terms and provisions of this Agreement and the Account
<br />Agreement, the terms and provisions of this Agreement
<br />shall govern, but only to the extent reasonably necessary to
<br />resolve such conflict.
<br />4.2 Customer agrees to compensate Bank
<br />for all Accounts and Services that Bank provides pursuant
<br />to this Agreement, including any Appendices, in
<br />accordance with the applicable fee schedules or agreements
<br />between Bank and Customer in effect from time to time
<br />that apply to the Services (the "Service Fees"). By signing
<br />4 of 58
<br />below, Customer acknowledges receipt of the Account
<br />Agreement and acceptance of the Service Fees, and agrees
<br />to be bound by their terms, as those terms may be amended
<br />from time to time in accordance with the terms of this
<br />Agreement.
<br />4.3 Customer authorizes Bank to charge
<br />the Primary Account for all applicable charges and fees to
<br />the extent that such charges and fees are not offset by
<br />earnings credits or other allowances for Customer's
<br />Account(s). If the balance of available funds in the
<br />Primary Account is not sufficient to cover such fees, Bank
<br />may charge such fees to any other deposit Account
<br />maintained on Bank's records in Customer's name.
<br />Customer also agrees to pay all sales, use or other taxes
<br />(other than taxes based upon Bank's net income) that may
<br />be applicable to the Services provided by Bank hereunder.
<br />4.4 Bank may amend Service Fee(s), in
<br />aggregate or individually, at any time. To the extent that
<br />such changes adversely affect Customer, Bank will use
<br />commercially reasonable efforts to give notice to :Customer
<br />of such changes, in accordance with applicable law, or as
<br />may otherwise be agreed to by the parties.
<br />5. Customer Information. Customer agrees to
<br />provide to Bank, before Bank begins providing any
<br />Services to Customer, any and all information required to
<br />comply with applicable law and Bank's policies and
<br />procedures relating to customer identification and
<br />authority. Such information may include, without
<br />limitation, official certificates of customer existence, copies
<br />of Customer formation agreements, business resolutions or
<br />equivalent documents, in a form acceptable to Bank-
<br />authorizing
<br />ankauthorizing Customer to enter into this Agreement and to
<br />receive Services from Bank pursuant hereto, and
<br />designating certain individuals as Customer's Authorized
<br />Representatives.
<br />6. Software.
<br />6.1 Bank may supply Customer with
<br />certain software owned by or licensed to Bank to be used
<br />by Customer in connection with the Services ("Software").
<br />Customer agrees that all such Software is and shall remain
<br />the sole property of Bank and/or the vendor of such
<br />Software. Customer agrees to comply with all of the terms
<br />and conditions of all license and other agreements which
<br />are provided to Customer by Bank and/or the Software
<br />vendor and/or which govern Customer's use of Software
<br />associated with the Services. Unless otherwise agreed in
<br />writing between Bank and Customer, Customer shall be
<br />responsible for the payment of all costs of installation of
<br />any Software provided to Customer in connection with the
<br />Services, as well as for selection, installation, maintenance
<br />and repair of all hardware required on Customer's premises
<br />for the successful operation of the Software.
<br />6.2 Except as otherwise expressly
<br />prohibited or limited by applicable law, Customer shall
<br />indemnify, defend and hold harmless Bank, its successors
<br />and assigns, from and against any loss, damage or other
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