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security of Bank or Customer funds or (vii) if Bank
<br />reasonably believes that the continued provision of Services
<br />in accordance with the terms of this Agreement or any
<br />Appendix would violate federal, state or local laws or
<br />regulations, or would subject Bank to unacceptable risk of
<br />loss. In the event of any termination hereunder, all fees due
<br />Bank under this Agreement as of the time of termination
<br />shall become immediately due and payable.
<br />Notwithstanding any termination, this Agreement shall
<br />remain in full force and effect with respect to all transactions
<br />initiated prior to such termination.
<br />14.5 TERMINATION IN REGARDS TO
<br />F.S. 287.135: Bank certifies that it and those related entities
<br />of Bank as defined by Florida law are not on the Scrutinized
<br />Companies that Boycott Israel List, created pursuant to s.
<br />215.4725 of the Florida Statutes, and are not engaged in a
<br />boycott of Israel. Customer may terminate this Contract if
<br />Bank, including all wholly owned subsidiaries, majority-
<br />owned subsidiaries, and parent companies that exist for the
<br />purpose of making profit, is found to have been placed on
<br />the Scrutinized Companies that Boycott Israel List or is
<br />engaged in a boycott of Israel as set forth in section
<br />215.4725, Florida Statutes. In addition, if this agreement is
<br />for goods or services of one million dollars or more, Bank
<br />certifies that it and those related entities of Bank as defined
<br />by Florida law are not on the Scrutinized Companies with
<br />Activities in Sudan List or the Scrutinized Companies with
<br />Activities in the Iran Petroleum Energy Sector List, created
<br />pursuant to Section 215.473 of the Florida Statutes and are
<br />not engaged in business operations in Cuba or Syria.
<br />Customer may terminate this Contract if Bank is found to
<br />have submitted a false certification as provided under section
<br />287.135(5), Florida Statutes, been placed on the Scrutinized
<br />Companies with Activities in Sudan List or the Scrutinized
<br />Companies with Activities in the Iran Petroleum Energy
<br />Sector List, or been engaged in business operations in Cuba
<br />or Syria, as defined by section 287.135, Florida Statutes.
<br />15. Limitation of Liability; Disclaimer of
<br />Warranties.
<br />15.1 Customer acknowledges that Bank's
<br />fees and charges for the Services are very small in relation
<br />to the amounts of transfers initiated through the Services
<br />and, as a result, Bank's willingness to provide the Services
<br />is based on the limitations and allocations of liability
<br />contained in this Agreement. Unless expressly prohibited or
<br />otherwise restricted by applicable law, the liability of Bank
<br />in connection with the Services will be limited to actual
<br />damages sustained by Customer and only to the extent such
<br />damages are a direct result of Bank's gross negligence,
<br />willful misconduct, or bad faith. In no event shall Bank be
<br />liable for any consequential, special, incidental, indirect,
<br />punitive or similar loss or damage that Customer may suffer
<br />or incur in connection with the Services, including, without
<br />limitation, attorneys' fees, lost earnings or profits and loss or
<br />damage from subsequent wrongful dishonor resulting from
<br />Bank's acts, regardless of whether the likelihood of such loss
<br />or damage was known by Bank and regardless of the basis,
<br />theory or nature of the action on which a claim is asserted.
<br />Unless expressly prohibited by or otherwise restricted by
<br />applicable law, and without limiting the foregoing, Bank's
<br />aggregate liability to Customer for all losses, damages, and
<br />expenses incurred in connection with any single claim shall
<br />not exceed an amount equal to the monthly billing paid by,
<br />charged to or otherwise assessed against Customer for
<br />Services over the three (3) month -period immediately
<br />preceding the date on which the damage or injury giving rise
<br />to such claim is alleged to have occurred or such fewer
<br />number of preceding months as this Agreement has been in
<br />effect. Notwithstanding any of the foregoing, for
<br />transactions which are subject to Article 4A of the UCC,
<br />Bank shall be liable for such damages as may be required or
<br />provided under Article 4A or the Fedwire Regulations, as
<br />applicable, except as otherwise agreed in this Agreement.
<br />This Agreement is only between Bank and Customer, and
<br />Bank shall have no liability hereunder to any third party.
<br />15.2 Except as otherwise expressly provided
<br />in Section 8 of this Agreement, Bank shall not be liable for
<br />any loss, damage or injury caused by any act or omission of
<br />any third party; for any charges imposed by any third party;
<br />or for any loss, damage or injury caused by any failure of the
<br />hardware or software utilized by a third party to provide
<br />Services to Customer.
<br />15.3 Bank shall not be liable or responsible
<br />for damages incurred as a result of data supplied by
<br />Customer that is inaccurate, incomplete, not current, or lost
<br />in transmission. It is understood that Bank assumes no
<br />liability or responsibility for the inaccuracy, incompleteness
<br />or incorrectness of data as a result of such data having been
<br />supplied to Customer through data transmission.
<br />15.4 Bank is not liable for failing to act
<br />sooner than required by any Appendix or applicable law.
<br />Bank also has no liability for failing to take action if Bank
<br />had discretion not to act.
<br />15.5 Bank shall not be responsible for
<br />Customer's acts or omissions (including, without limitation, the
<br />amount, accuracy, timeliness of transmittal or due
<br />authorization of any entry, funds transfer order, or other
<br />instruction received from Customer) or the acts or omissions of
<br />any other person, including, without limitation, any Automated
<br />Clearing House processor, any Federal Reserve Bank, any
<br />financial institution or bank, any transmission or
<br />communication facility, any receiver or receiving depository
<br />financial institution, including, without limitation, the return of
<br />an entry or rejection of a funds transfer order by such receiver
<br />or receiving depository financial institutions, and no such
<br />person shall be deemed Bank's agent. Bank shall be excused
<br />from failing to transmit or delay in transmitting an entry or
<br />fiords transfer order if such transmittal would result in Bank's
<br />having exceeded any limitation upon its intra -day net funds
<br />position established pursuant to Federal Reserve guidelines or
<br />otherwise violating any provision of any risk control program
<br />of the Federal Reserve or any rule or regulation of any other
<br />U.S. governmental regulatory authority. In no event shall
<br />Bank be liable for any damages resulting from Bank's action
<br />or inaction which is consistent with regulations issued by the
<br />Board of Governors of the Federal Reserve System,
<br />operating circulars issued by a Federal Reserve Bank or
<br />8 of 34 1018
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