Key Business Online Wire Funds Transfer Service Agreement

Transcription

1 Key Business Online Wire Funds Transfer Service Agreement Terms and Conditions As used in this Agreement for the Bank s online wire transfer service for commercial customers via the Bank s Website, Customer is defined in the Key Business Online Services Agreement and Bank means KeyBank National Association. Other defined terms used herein but not expressly defined herein shall have the meaning ascribed thereto in the KBO Services Agreement. The term Agreement means collectively this Key Business Online Wire Funds Service Agreement, any Service Schedules, and Service Instructions as amended from time to time. The term Effective Date with respect to this Agreement means the date on which the Administrator has accepted this Agreement when enrolling online for the Service. However the Services shall not be available until Bank has completed the enroll process, set up the Services and notified Customer. Acceptance of Service Agreements Each time Customer uses the Service, Customer acknowledges and agrees to be legally bound by, and that each Wire Transfer will be subject to, the terms and conditions of the following service agreements, as amended: (a) this Agreement, (b) the KeyBank User Agreement For Access to World Wide Website, as amended, (herein called User Agreement ), (c) the Key Business Online Services Agreement ( KBO Services Agreement ) and (d) any applicable Linking Agreement for Key Business Online Services ( KBO Linking Agreement ). Please read these agreements carefully for applicable terms, including, but not limited to, limitations on liability of KeyBank. Customer acknowledges receipt of each of the above service agreements or access to these agreements on the Website. When Customer enrolls in this Service on the Website and clicks on the Accept button on the Website to approve this Agreement, such action constitutes Customer s electronic signature to and approval of, and intent to be bound by, this Agreement. Bank may, at its sole discretion, require a manual signature by Customer on this Agreement. Client should promptly print a copy of this Agreement and retain it for its records. The Administrator that enrolls in this Service is accepting this Agreement in the name and on behalf of the Customer. Except as otherwise provided herein, the term Customer whenever used in this Agreement shall include the Customer and each such Customer Affiliate as described in Section 2 below. 1. Wire Transfer Services (a) For purposes of this Agreement, the term Services means any Wire Transfer services undertaken by Bank for Customer, now or in the future, pursuant to or in connection with Key Business Online banking, including, without limitation, services with separate Service Instructions, arising out of or in connection with Customer s use of Bank s Website at or such other successor or alternative website designated by Bank (the Website ). The term Service Instructions means any Customer service order, set-up instruction, subsequent instruction, and any other instruction by Customer that covers any of the Services being provided that are delivered online via the Bank s Website, and may include service specifics such as authorized users designated by Customer or the Administrator, policies, procedures, specifications, cut-off times or other deadlines. (b) The Services under this Agreement shall be considered a Premium Service Feature contemplated by Bank and Customer and subject to applicable terms of the KBO Services Agreement, where the context applies or is appropriate, except any direct conflict in the terms shall be governed by the terms of this Agreement. The Services hereunder shall be considered KBO Services under the KBO Service Agreement. (c) Bank shall provide Customer with Internet online access to the Services via its Website, which enables Customer to transfer U.S. dollars only from its Accounts at Bank. Customer acknowledges and agrees that each Wire Transfer is subject to all Applicable Laws and the Fedwire payment system rules (or any similar wire transfer system rules used primarily for transfers between financial institutions or between businesses) approved by Bank. The term Wire Transfer means, as the case may be: (i) any online electronic instruction or payment order sent to Bank via its Website requesting an electronic transfer of funds by Fedwire, or a similar wire transfer payment network, to pay or cause another financial institution to pay, a fixed amount of money to a named payee or beneficiary designated by Customer, (ii) any request to cancel or amend such instructions or payment order received in Customer s name, or (iii) any electronic funds transfer made for the purpose of making payment to the named payee or beneficiary pursuant to the instructions or payment order. (d) All funds transfers are limited to domestic Wire Transfers unless otherwise approved and accepted by Bank. Bank reserves the right to not process or accept any Wire Transfer not in compliance with Bank s Wire Standards or Applicable Law then in effect or as otherwise provided here. The term Wire Standards means collectively Bank s Wire Transfer Procedures and Standards, its Security Procedures, and related policies including, without limitation, dollar and activity limitations for Wire Transfers in effect and as modified from time to time by Bank in its sole discretion and without notice. (e) An Authorization Code shall be required for each Wire Transfer and the Services shall not include repetitive funds transfers (i.e. pre-authorized transfers of a repetitive nature in which transfer debit and credit parties remain the same; date and dollar amount may be variable). The term Authorization Code means a secure, time sensitive, authorization code for each Wire Transfer established pursuant to Bank s Security Procedures. (f) Customer shall maintain a current and valid Address as long as this Agreement is in effect, and shall promptly update any change to this Address by calling the KBO Customer Service at This Address shall be used for delivery of the Access Code to Customer for each Wire Transfer. The term Address means the Administrator s or other Authorized User s individual address designated on Bank s Website by the Administrator at time of enrollment for the Services, or from time to time thereafter by the Administrator s change by calling KBO Customer Service at the number above. (g) Customer may request from time to time Bank to transfer funds from Customer account(s) at Bank by Wire Transfers to any account of a third party specified by Customer, whether such third party account(s) is at Bank or another domestic financial institution. Customer agrees, represents and warrants to Bank that each such Wire Transfer made is to an account at a domestic bank (a bank office located in the United States of America) and will not be forwarded to any account at any foreign financial institution. For information or questions on this restriction, please contact KBO Customer Service at Affiliates of Customer Any affiliates and/or subsidiaries of Customer ( Customer Affiliates ) shall, if they have entered into a KBO Linking Agreement, also be deemed to be parties to this the KBO Services Agreement and this Agreement. Each such Customer Affiliate acknowledges receipt of a copy of the KBO Services Agreement and this Agreement. Except as otherwise provided herein, the term Customer whenever used in this Agreement shall include the Customer and each such Customer Affiliate. Page 1 of 5

2 3. Authorization; Warranties (a) Customer warrants and represents on the date hereof and on any date any Service is performed that (i) Customer is duly organized, validly existing, and in good standing in the jurisdiction in which it is organized; (ii) there is no provision of any law, or any certificate of incorporation or by-laws, or any agreement of any kind, nature or description binding upon Customer which prohibits Customer from entering into or performing under this Agreement Instruction(s); (iii) the execution and performance of this Agreement Instructions(s) has been duly authorized; and (iv) this Agreement is a binding obligation of Customer. (b) The Administrator warrants and represents on the date hereof and on each date any Service is performed that: (i) the Administrator is an Authorized Representative of Customer duly authorized to act on behalf of Customer; (ii) Customer has taken all action required by its organizational documents to authorize the Administrator to agree to and deliver this Agreement and Service Instructions and to bind Customer thereto; (iii) without limiting the generality of the foregoing, Administrator is duly authorized to give Bank direction regarding the withdrawal, disbursement, or other transfer of funds by wire or other electronic means; and (iv) Customer has received a copy of the Agreement. (c) In the event Bank, in its sole discretion, hereafter allows the Administrator s designation of other authorized users for the Services (each an Authorized User ): (i) The Administrator warrants and represents on any date any Service is performed at the request of such Authorized User that: (1) the Administrator is duly authorized to designate officers, employees or agents of Customer to act in the name of and on behalf of Customer with regard to the Services; and (2) without limiting the generality of the foregoing, each such Authorized User designated by the Administrator is duly authorized to give Bank direction regarding the withdrawal, disbursement, or other transfer of funds by wire or other electronic means; and (ii) Bank may rely on the authorization with respect to any Authorized User until the Wire Communications Department of Bank has received notice from the KBO Customer Service call center deleting such person as an Authorized User, and Bank has had a reasonable opportunity to act upon any such change in Authorized Users. 4. Wire Transfer Security Procedures (a) Customer agrees that it shall be solely responsible to assure that such Security Procedures are followed, as amended from time to time. If such Procedures are violated, Customer agrees to promptly notify Bank of any such breach. Customer acknowledges that Security Procedures are used to verify the authenticity of transactions but not to detect errors in any transaction Customer The Security Procedures do not verify the actual identity of the users of the Services and do not monitor the actions of users to determine whether they have exceeded their authority. Customer acknowledges that it has reviewed all applicable Security Procedures, has selected its preferred Security Procedure where applicable, has determined that such Security Procedures are commercially reasonable and Customer hereby waives any objection that they are not. (b) Customer shall be responsible and liable for any unauthorized use or disclosure of any Security Procedures and all Security Procedure materials entrusted to it. Bank shall not be liable for any and all claims, actions, demands, losses, damages, liabilities, costs, expenses (including without limitation reasonable attorneys fees and court costs) and the costs of settlement of claims, ( Losses ), which may arise from the unauthorized use of the Security Procedure or unauthorized use of the Service. Bank may deliver or disclose Security Procedure materials to any person designated by Customer as an Authorized User. Customer warrants that each Wire Transfer initiated or facilitated by the use of the Security Procedure is fully authorized by Customer and by any other party whose authorization is required. These Security Procedures are in addition to and not in limitation to the Security provisions provided for under Section 4 of the KBO Services Agreement. (c) Bank will assign a unique Authorization Code for use by Customer s Administrator, or each Authorized User (if any) in connection with each Wire Transfer. The Administrator and each Authorized User shall maintain the Authorization Code in strictest confidence and take security measures sufficient to assure that the Authorization Code is not used to facilitate unauthorized transactions. The term Authorization Code means a secure, time sensitive authorization code provided by Bank for each Wire Transfer and established pursuant to Bank s Security Procedures. (d) Customer warrants that each Wire Transfer initiated or facilitated by the use of the Authorization Code is fully authorized by Customer and by the Administrator. Bank shall not be liable for any loss, damage, or liability which may arise from the unauthorized use of the Authorization Code. (e) Security Procedures for the detection of Customer errors or unauthorized Wire Transfers are not provided by Bank and in no event shall Bank be liable for such errors or unauthorized Wire Transfers. 5. Inconsistencies Between Names and Numbers If an identifying or bank account number provided in a Wire Transfer issued in the name of Customer identifies a person different from the beneficiary named in the Wire Transfer, or if the words and numbers set forth in a Wire Transfer are otherwise inconsistent, Customer understands that execution might be made by Bank, another beneficiary s bank, or any other person on the basis of identifying number, bank account number, or other number rather than on the basis of the name or words. If a Wire Transfer identifies an intermediary bank or the beneficiary s bank both by name and an identifying number and the name and number identify different persons, Customer understands that Bank, another receiving bank, or any other person might rely on the number as the proper identification of the intermediary or beneficiary s bank even if it identifies a person different from Bank identified by name. Bank may, in its discretion and without liability, choose to rely either upon a name or other words, or upon an identifying, related, accompanying, or bank account number in a Wire Transfer. Bank shall not, for any purpose, be deemed to know that an account identifying or other number in a Wire Transfer does not identify or match the person or words intended to be identified or otherwise set forth therein unless the officer or employee of Bank, who receives or accepts the Wire Transfer has actual knowledge and awareness of the contents of the Wire Transfer and the fact that a discrepancy exists. 6. Execution, Rejection and Payment of Requests Bank shall have the right to reject or impose conditions that must be satisfied before it will accept a Request for any reason, including without limitation Customer s violation of any term of this Service Description or the Agreement, Customer s failure to maintain a sufficient withdrawable account balance, or the belief by Bank that the Request may have not in fact been authorized. The Request may also be rejected by an intermediary or beneficiary s bank other than Bank, or by operation of law. If a Request is rejected, Bank shall endeavor to notify Customer by telephone, electronic transmission, in writing or by other means chosen by Bank. The notice shall be effective when given. Bank shall, however, have no liability to Customer by reason of such rejection by another person in the funds transfer chain, or the fact that such notice was not given or was not given at an earlier time. Bank shall have no liability to Customer for failing to notify Customer within any specified period of time of receipt, acceptance, execution, or payment of any Wire Transfer. Page 2 of 5

3 7. Execution Date Customer shall not submit online a Wire Transfer instructing execution or payment on a Banking Day later than the day the order is received by Bank unless Bank agrees to accept such Wire Transfer request. Banking Day means any day other than a Saturday, Sunday, or a day on which Bank is authorized or required to close according to Applicable Law. 8. Cut-Off Hours Format requirements and cut-off hours may be established and changed by Bank from time to time. Wire Transfer requests received after such cut-off hours may be treated by Bank for all purposes as having been received on the following Banking Day. 9. Provisionality of Credits While an Account of Customer may be credited in the amount of an incoming Wire Transfer, such crediting shall be subject to receipt of final settlement by Bank and any cancellation effected or agreed to by Bank. 10. Cancellation and Amendment Customer shall have no right to amend or cancel any Wire Transfer after submitting the Wire Transfer request online to Bank. Bank may, however, on its own initiative and without obligation, act upon a Wire Transfer to amend or cancel, but shall have no liability if such cancellation or amendment is not effected. Any such Wire Transfer to cancel or amend must be received by the Wire Communications Department of Bank or Agent, if designated, on or before Banking Day on which the Wire Transfer is to be executed. If Bank agrees to a Wire Transfer from the sender or originator to cancel a Wire Transfer which has been credited to a Customer s Account, Bank may deduct or set off the amount of the order from or against any Customer account or otherwise obtain a refund from Customer. 11. Overdrafts; Set-off Customer must have available funds in the Account to cover each Wire Transfer. Bank may, however, in its discretion, execute the Wire Transfer even if such execution should result in the creation of an overdraft in a Customer s Account. Customer shall be liable to Bank for any such overdraft. If insufficient Customer funds are available to cover a transfer, including charges, Bank may, in its discretion, send the amount of funds available or send the payment net of charges, or not execute the transfer. Bank can use the funds or balances from any account Customer has with Bank to pay or satisfy the obligation or may set off against any amount Bank may owe Customer in order to obtain payment of such obligation. Except as may be restricted by Applicable Law, this right may be exercised at any time and without prior notice, regardless of whether it creates an overdraft or results in subsequent dishonor or checks or request to transfer funds. 12. Report of Discrepancies in Wire Transfers Report any error or discrepancy in a Wire Transfer as soon as possible. Within fourteen (14) days after the date Customer receives notification from Bank, whether by advice, confirmation, statement or otherwise, or Bank makes such notification available to Customer, whether by computer link or otherwise, that a Wire Transfer request in the name of Customer was accepted by Bank or Customer s Account was debited or credited with respect to a Wire Transfer, or within fourteen (14) days of any earlier date upon which Customer has notice from another source of execution, payment, non-execution, or non-payment by Bank or any other party of any Wire Transfer issued in the name of or paid to the Account of Customer, Customer must notify KBO Customer Service call center of the relevant facts regarding any unauthorized or erroneous Wire Transfer, any discrepancy reflected in such notification or notice, and any right of a refund. Failure of Customer to so notify shall relieve Bank of any liability it would otherwise have in regard to such Wire Transfer. Bank shall have no obligation to notify Customer of the receipt, execution, or payment of any request within any specified period of time. If Customer chooses not to receive advices, statements or other notifications of debits or credits to Customer s Account, or instructs Bank to hold such notifications for Customer, the fourteen-day period set forth herein shall be deemed to begin to run, respectively, on the date of the debit or credit or on the date the notification is prepared by Bank. 13. Recording Bank may, but shall not be obligated to, tape or otherwise record telephone conversations between Bank and Customer, or its Administrator or Authorized User. 14. Third Party Transfers Customer covenants and agrees that Customer shall only use the Services to initiate funds transfers on its own behalf and in Customer s own name. Customer will not use the Services to initiate funds transfers on behalf of Customer s customers or other third parties. 15. Notices All written notices or communications of any type related to the Schedule Instructions, the Services, this Agreement, or to any Wire Transfer here under, if not sent online via the Website, shall be directed: (a) if sent by the Customer, to the address for notices to the KBO Customer Service Center and (b) if sent by Bank, to the address of Customer set forth in the Bank s current business address for the Customer, as the same may be amended to reflect a different address. Any notice which Bank is required by this Agreement to provide to any Customer Affiliate shall be legally sufficient if provided to Customer. Each such notice shall be deemed to constitute notice to all parties to this Agreement and shall satisfy the notice requirement set forth herein and in the KBO Services Agreement. 16. Audit Rights Customer agrees that Bank has the right, at its discretion, to audit at any time Customer s Wire Transfer related processes, controls and activities hereunder, Customer s operations and data security policies and procedures, and its financial condition. Customer shall cooperate, and shall cause its personnel to cooperate, fully with Bank as Bank may reasonably request in connection with any audit right under this Agreement. 17. Internet Security (a) The Services or functionality of the Services will be provided through the Internet. The term Internet means the global, publicly accessible, network of interconnected computer networks that transmit data using the standard internet protocol. Customer agrees to establish and maintain appropriate security software, security procedures and security training for Internet use and safeguarding Confidential Information, including, without limitation, a proxy server and/or firewalls to control and protect Internet access, and prevent unauthorized use of Access Codes and unauthorized Wire Transfers. (b) In no event will Bank have any liability in connection with and shall not be responsible for, and Customer hereby assumes all responsibility and liability for: (i) inability to connect to or use any Service via the Internet or inability to communicate with Bank via the Internet or any Website resulting from a problem with an Internet service provider or online service provider of failure of Customer s computer hardware, software, systems or otherwise, (ii) unknown hazards of Internet use, unauthorized intrusions to Customer s data files, or unauthorized use of any Authorization Code, including, but not limited to interception of any information relating to Customer or its Wire Transfers, unauthorized intrusion to use of data relating to Customer s named payees or beneficiaries, any application errors in or security breaches of any Internet browser, or (iii) any data that is lost or destroyed in connection with the use of the Internet. Page 3 of 5

4 (c) Customer represents, warrants and covenants that it uses commercially reasonable fraudulent transaction detection systems to (i) establish the identity of users who provide payment instructions in person, via the internet or by telephone and (ii) verify the validity of routing-and-transit numbers contained within payment instructions. Additionally, Customer warrants that it uses a secure Internet session and commercially reasonable security technology. 18. Customer s Information Security (a) Customer will maintain a Security Policy document that will be made available to Bank upon Bank s request. Customer will advise Bank of changes to security policy and make available to Bank these revisions upon request. Customer will create its firewall rules based on the principle of least access needed. This means that the firewall(s) will only pass the traffic necessary for the Products to function to the backend servers, and any unnecessary traffic will be blocked. Customer will segregate the Internet environment used to provide service to its clients from the Internet environment used by internal Customer personnel. (b) Authorization of Authorized Users will follow industry standard best practices, adhering to the concepts of least privilege access, business need to know and individual accountability, while utilizing and maintaining a strong authentication mechanism. (c) Customer will use commercially reasonable efforts to maintain at all times a current industry standard intrusion detection monitoring system that protects its infrastructure against system risk from outside users and vendors. Customer will actively monitor the intrusion monitoring system and develop escalation procedures to notify Bank personnel in the event of a security breach. The escalation procedures will be mutually agreed upon between Customer and Bank. (d) To prevent data leakage that can occur when data is migrated intentionally or inadvertently across technologies, Customer must use a standard practice of strong encryption methods on any transportable devices that stores or processes any information. This standard applies regardless of whether Bank s information is intended to be on the device or not. This standard applies to any transportable devices, such as, but not limited to laptop computer, desktop computer, CD, DVD, or other portable or stationary storage media. For purposes of this Section, strong encryption means accepted industry standard solutions that are commercially reasonable and commercially available from industry recognized vendors, with preference given to a current minimum of AES and a minimum key length of 128 bits. Customer shall periodically review the encryption standard that is being used to ensure compliance with this Section. Customer shall not use any PDA, USB Drive, flash memory card, and/or floppy drive for storage or processing of information relating to any Wire Transfer. 19. Fees Customer shall compensate Bank for Services in accordance with Bank s current fee schedule in effect and shall be liable for all taxes applicable to the Services (not including taxes based on Bank s employees or net income). Bank may amend the fee schedule at any time and will give written notice to Customer of changes in fees for Services then used by Customer provided that such change shall not be effective until thirty (30) days after Bank has provided such notice. Bank may debit Customer s Account for payment of charges then due unless Customer arranges for another payment procedure acceptable to Bank. Customer shall pay Bank s costs and expenses including reasonable attorney s fees, costs and expenses paid or incurred by Bank in collecting or attempting to collect amounts or other obligations due Bank under this Agreement. Monthly fees for the Service will be charged to Customer s primary Account designated for this Service; however, transaction fees for each Wire Transfer will be charged to the Customer s Account used to settle and fund payment of the applicable Wire Transfer. 20. Financial Condition and Credit Limits; Cancellation of Service Upon written request, Customer shall deliver to Bank financial statements of Customer (audited, if and when available), including without limitation, a balance sheet, income statement and cash flow statements available within 45 days after each fiscal quarter, except the last, and within ninety (90) days after the fiscal year end, together with any additional financial statements or information reasonably requested by Bank. Customer shall provide Bank with such additional information concerning the operations of Customer as may be reasonably requested by Bank. Customer also authorizes Bank to obtain credit reports on Customer at any time. In the event the Service(s) selected by Customer result in unacceptable credit exposures to Bank or affect the amount of capital required or expected to be maintained by Bank or its parent under any Applicable Law or regulatory guideline, or request from any central bank or governmental authority; or if Customer fails to provide Bank with any credit, financial or other information Bank may require from time to time, Bank may, in its discretion, immediately cancel the Services contemplated herein, or limit Customer s Wire Transfer transaction volume and/or dollar amounts. 21. Confidentiality Each party understands and acknowledges that the other party may gain access to certain information, material or data of a confidential nature, including, without limitation, trade secrets relating to such party or its businesses or operations and Confidential Information. Each party agrees to keep all such information, material, or data confidential. Each party acknowledges that the other party shall have the right to take all reasonable steps to protect its interest in keeping the foregoing confidential, including, but not limited to, injunctive relief and any other remedies that may be available at law or in equity. Confidential Information means all information that is not generally known to the public and in which either party has rights, which information is marked confidential, restricted or proprietary by the party having rights in the same, or which under all the circumstances ought reasonably to be treated as confidential or proprietary, including this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) was known to the receiving party as of the time of its disclosure and acquired in a lawful manner; (c) is independently developed by the receiving party without reference to the Confidential Information; (d) is subsequently learned from a third party (i.e., not Customer, Bank or any of their respective employees or agents) not subject to an obligation of confidentiality with respect to the information disclosed; or (e) required to be disclosed in a judicial, regulatory or administrative proceeding. In the event Customer knows or reasonably believes that there has been any unauthorized acquisition of or access to data that compromises the security, confidentiality, or integrity of personal information maintained by or for Customer (a Breach ), Customer shall take the following actions: (a) immediately notify Bank of such Breach; (b) identify to Bank what specific data, by customer and/or account number has or may have been Breached; (c) monitor any affected accounts for any unusual activity (if appropriate): (d) take measures to contain and control the incident to prevent further unauthorized access; (e) remedy the circumstances that permitted such Breach to occur; and (f) cooperate with Bank as necessary to facilitate Bank s compliance with any applicable federal or state law regarding unauthorized access of personal information of Bank s customers. The term personal information shall include any one of the following: a person s name, social security number, telephone number, driver s license or state ID number, account number, credit/debit card account number, access code, password, identification number, or security code. Page 4 of 5

5 22. Compliance with Applicable Law; OFAC Customer shall comply with all valid Applicable Law now in effect or hereafter promulgated by any properly constituted governmental authority having jurisdiction over Customer and Customer s business. The term Applicable Law means all federal and state laws, rules and regulations governing or related to this Agreement or the Services including, without limitation, the rules of the Fedwire payment system or any other similar funds transfer system, the rules administered by the Office of Foreign Assets Control of the U.S. Treasury Department ( OFAC ) and the Uniform Commercial Code. Customer acknowledges that it may not transmit entries that violate the laws of the United States, including sanctions enforced by OFAC. Customer warrants that it will not violate OFAC-enforced sanctions, and will not act on behalf of, or transmit funds to or from, any party subject to such sanctions. 23. Duty of Care Except to the extent required by Applicable Law, Bank will exercise reasonable care in providing the Services. Bank s reasonable care is to be evaluated based on reasonable commercial banking standards prevailing for banks providing these Services at the same location for similarly situated commercial banks. 24. Limitation of Liability Bank s liability shall be limited to actual damages sustained by Customer to the extent such damages are a direct result of Bank s willful misconduct or gross negligence in performing the Service. Except as required by Applicable Law and the further limitations set forth below, Bank s aggregate liability for damages for any cause of action relating to the Services shall be limited to the amounts paid by Customer for such Service during the six (6) month period immediately preceding the date on which the damage or injury giving rise to such cause of action is alleged to have occurred or such fewer days the Service has been in effect. Bank s liability for failure to exercise ordinary care resulting in a delay in executing, improper execution of or failure to execute a transaction constituting a Wire Transfer shall be limited to an amount equal to interest losses attributable thereto. Bank s liability for interest losses will be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank in the district of Bank s principal place of business. Bank shall not be liable for damages (a) caused by any act or omission of any third party or servicer or processor used by Customer; or (b) caused or imposed by any third party or any act or omission by any other financial institution or funds transfer system. Bank shall have no liability hereunder to any third party. Bank shall be relieved of liability where Bank performs any Service in accordance with any Service Instructions or this Agreement. In no event shall Bank be liable for special, incidental, indirect punitive or consequential loss or damage of any kind including, but not limited to, lost profits (whether or not Bank has been advised of the possibility of such loss or damage). 25. Disclaimer of Warranties EXCEPT AS EXPRESSLY SET FORTH HEREIN, BANK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE WITH RESPECT TO THE SERVICES, SOFTWARE, DOCUMENTATION, APPLICATION OR ANY SERVICE, THAT THE OPERATION OF ANY SERVICE WILL BE ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED AND FURTHER BANK HEREBY DISCLAIMS ALL LIABILITY THERETO. BANK HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, INFRINGEMENT OR OTHER IMPLIED CONTRACTUAL WARRANTY AND CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT NEITHER BANK NOR ANY THIRD PARTY PROVIDER OF THE SERVICES OR ANY APPLICATION SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY OF THE MATTERS SET FORTH IN THIS SECTION ABOVE. 26. Indemnification Customer shall defend, indemnify and hold Bank harmless from any and all Losses relating to or arising out of this Agreement, Customer s use of the Services, Customer s breach of any of its representations and warranties herein, Customer s breach of any Applicable Law, or the acts or omissions of Customer (including its processors, agents and employees, or any acts of a third party); provided, however, that Bank shall have no right to be indemnified hereunder for its own gross negligence or willful misconduct as determined by a court of competent jurisdiction. This indemnity shall survive termination of this Agreement. 27. Term; Termination This Agreement shall continue on and after its Effective Date, and may be terminated in the manner set forth in Part V, Section 1 of the KBO Service Agreement. In addition to and without limiting the termination rights under the KBO Service Agreement, Bank may terminate this Agreement and/or the Services hereunder immediately effective upon notice to Customer in the event that: (a) Customer s Account with Bank that is associated with the Services is closed; (b) a third party contract which is necessary for the performance of the Services is terminated; (c) Bank determines in good faith that any Applicable Law prohibits performance of the Services or any Wire Transfer; (d) Bank has reason to believe Customer has engaged in fraudulent or illegal activity; (e) Bank determines that Customer has failed to maintain a financial condition deemed reasonably satisfactory to Bank; (f) Customer has breached any representation or warranty or breached any material obligation under this Agreement (including nonpayment by Customer); (g) Insolvency of Customer occurs; (h) Customer s charter or license to do business is revoked or suspended, or occurrence of such other event which adversely affects Customer s normal authority, right or ability to do business; or (i) default by Customer on any indebtedness owed to Bank. The term Insolvency means with respect to any party, (i) the commencement of any proceeding in connection with any voluntary or involuntary bankruptcy, insolvency, reorganization, receivership, liquidation, dissolution or similar law, or (ii) the making by a party of a general assignment for the benefit of creditors, or (iii) the admission in writing by a party of such party s inability to pay such party s debts as they become due. 28. Effect of Termination All warranties of Customer made herein and obligations of Customer that arose prior to termination shall survive the termination of this Agreement and the processing of any Wire Transfer, shall bind the successors and permitted assigns of Customer and shall inure to the benefit of Bank, its successors and assigns. 29. KBO Services Provisions Those provisions of the KBO Services Agreement which are appropriate and may reasonably apply to the Services hereunder shall be deemed incorporated in and made a part of this Agreement. Without limiting the generality of the foregoing, the terms and conditions set forth in the KBO Service Agreement in Part V.2, Systems Unavailability, Force Majeure, Risk of Loss; and Part VI, General Provisions, now in effect and as hereafter amended, are each incorporated by reference into this Agreement and made a part hereof. Client acknowledges a receipt of a copy of the KBO Service Agreement. Page 5 of 5