Account Bank. 6.1 To induce the Account Bank to act hereunder, it is further agreed by the Issuer that: (a) the Account Bank shall not be under any duty to give the amounts standing to the credit of the Issuer Accounts held by it hereunder any greater degree of care than it gives to amounts held for its general banking customers; (b) the Account Bank is under no duty to ensure that funds withdrawn from the Issuer Accounts are actually applied for the purpose for which they were withdrawn or that any Instruction is accurate, correct or in accordance with the terms of any other agreement or arrangement; (c) neither the Account Bank nor any of its officers, employees or agents shall be required to make any payment or distribution to the extent that the amount standing to the credit of the relevant Issuer Account is insufficient and shall incur no liability whatsoever from any non-payment or non-distribution in such circumstances; (d) the Issuer unconditionally agrees to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Account Bank according to the Account Bank's standard operating procedures or as the Account Bank deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement; (e) neither the Account Bank nor any of its officers, employees or agents shall be liable to any person or entity including but not limited to the Issuer for any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement save as are caused by its own gross negligence, wilful default or fraud; (f) the Account Bank shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event where, in the opinion of the Account Bank acting reasonably, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would result in the Account Bank being in breach of Applicable Law or any Judgment, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law but with which the Account Bank would normally comply) of any relevant Authority, stock exchange or self-regulatory organisation to which the Account Bank is subject (including, without limitation, those of: (i) the United States of America or any jurisdiction forming a part of it; and (ii) England & Wales) and may without liability do anything which is, in its opinion, necessary to comply with any such law, rule or regulation; (g) notwithstanding the foregoing, under no circumstances will the Account Bank be liable to any party or any other person for any indirect, incidental or consequential loss or damage (being, inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage; (h) without prejudice to Clause 6.1(i), the Account Bank shall not be obliged to make any payment or otherwise to act on any Instruction, with the exception of Instructions submitted via CitiDirect, notified to it under this Agreement if it is unable: (i) to verify any signature pursuant to any request or Instruction against the specimen signature provided for the relevant Authorised Representative hereunder; and (ii) to validate the authenticity of the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorised Representative of the Issuer; (i) the Account Bank shall be entitled to rely upon any Judgment, award, certification, demand, notice, or other written instrument (including any Instruction or any requirement and/or request for information delivered by a person or Authority delivered to it hereunder without being required to determine its authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so; (j) the Issuer acknowledges that the Account Bank is authorised to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing: (i) without prejudice to Clause 6.1(i), the Account Bank may rely and act upon an Instruction if it believes it contains sufficient information to enable it to act and has been appropriately executed in which case, if it acts in good faith on such Instruction, such Instruction shall be binding on the Issuer and the Account Bank shall not be liable for doing so; (ii) notwithstanding any other provision hereof, the Account Bank shall have the right to refuse to act on any Instruction where it reasonably doubts its contents, authorisation, origination or compliance with this Agreement and will promptly notify the Issuer of its decisions; and (iii) the Issuer expressly acknowledges that it is fully aware of and agrees to accept the risks of error, security and privacy issues and fraudulent activities associated with transmitting Instructions through any means requiring manual intervention; (k) the Account Bank may consult lawyers (or other appropriate professional advisers) over any question as to the provisions of this Agreement or its duties and hereby agrees to disclose, where legally permissible, a summary of the advice on which it intends to rely, produced by such lawyers or professional advisers, to the Issuer upon request. Without prejudice to Clauses 6.1(e) and 6.1(h), the Account Bank shall not be liable for any action taken or omitted in accordance with such advice (in the absence of such advice containing a material manifest error); (l) this Clause 6.1(l), Clauses 6.1(e), 6.1(f), 6.1(g), 6.1(i), 6.1(k) and 6.2, the indemnity contained in Clause 8.2 and paragraphs 2 (Entire Agreement), 26 (Governing Law) and 27 (Jurisdiction) of Schedule 2 of the Incorporated Terms Memorandum shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank; (m) the Account Bank shall have no responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of any third party contemplated in any other document entered into by the Issuer as a means to resolve disputes and may rely without any liability upon the contents thereof; (n) in the event of: (i) adverse or conflicting claims or demands being made or threatened in connection with the amounts standing to the credit of the Issuer Accounts; or (ii) the Account Bank in good faith concluding that its duties hereunder are unclear in a material respect, the Account Bank shall be entitled in its sole discretion to refuse to comply with any claims, demands or Instructions with respect to the amounts standing to the credit of the Issuer Accounts either: (iii) for so long as such adverse or conflicting claims or demands continue; or (iv) until the Account Bank's duties have been clarified to the satisfaction of the Account Bank (acting reasonably), and the Account Bank shall not be or become liable in any way to the Issuer for failure or refusal to comply with such claims, demands or Instructions and the Account Bank shall be entitled to refuse to act and to retain the amounts standing to the credit of the Issuer Accounts until required to release it in accordance with Clause 5.1(b); (o) no printed or other matter in any language (including without limitation prospectuses, notices, reports and promotional material) which mentions the name of the Account Bank or the rights, powers, or duties of the Account Bank shall be publicly issued by the Issuer or on its behalf unless the Account Bank shall first have given its express written consent thereto; (i) except as provided hereunder, and except to the extent required otherwise under Applicable Law, the obligations and duties of the Account Bank are binding only on the Account Bank and are not obligations or duties of any Citi Organisation; and (ii) the rights of the Issuer with respect to the Account Bank extend only to the Account Bank and, except to the extent required under Applicable Law, do not extend to any other Citi Organisation; and (p) with regard to CitiDirect (i) it consents to the transmission of data and communications through the internet and acknowledges that the internet is not necessarily a secure communications and delivery system, and understands the confidentiality and other risks associated with it. The Issuer agrees to be bound by any communication validated by the Citibank, N.A. ("Citibank") branch, subsidiary or affiliate providing the service to which such communication relates according to the CitiDirect security procedures (as updated from time to time) applicable to the type of communication and consistent with the Issuer's access profile. The Issuer's use of CitiDirect after receipt of updated CitiDirect security procedures (including, but not limited to, the posting of such revised CitiDirect security procedures on the CitiDirect Internet site) constitutes acceptance of such updated CitiDirect security procedures and such updated CitiDirect security procedures shall replace the prior agreed upon CitiDirect security procedures; and (ii) it will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communication and for appointing users (including any Users employed by entities other than the Customer ("Users")), including (i) creating, deleting or modifying User profiles, (ii) building access profiles which define the applications available to Users in that group, (iii) enabling and disabling User identification, (iv) product set-up and site/flow control (i.e. identifying levels of transaction authorization), (v) allocation of dynamic password cards or other access cards or passwords for system access, (vi) notification to Citibank if there is any reason to suspect security has been compromised, (vii) creating, deleting or modifying customer-managed libraries, and (viii) where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by Citibank from time to time in connection with the provision of services and/or products to the Issuer. Any two security managers, acting in concert, are authorized to give instructions or confirmations to Citibank (and Citibank is authorized to accept such instructions and confirmations) in relation to any activity mentioned above or in connection with facilitating Customer's communication via the Internet. 6.2 The Account Bank will treat information relating to or provided by the Issuer as confidential. Unless consent is prohibited by law, the Issuer consents to the processing, transfer and disclosure by the Account Bank, where necessary (and subject to compliance with Applicable Law), of any information relating to or provided by the Issuer (including banking secrets, personal data and other confidential information) to any Authorised Recipients, for confidential use in connection with this Agreement. The Account Bank shall ensure that each Authorised Recipient to which it provides such confidential information is aware that such information is confidential and should be treated accordingly. 6.3 An Authorised Recipient may transfer and disclose any such information as is required or requested by any court, legal process, Applicable Law or Authority, including an auditor of the Issuer and including any payer or payee as required by Applicable Law, and may use (and its performance will be subject to the rules of) any communications, clearing or payment systems, intermediary bank or other system. 6.4 For the purposes of the call-back arrangements, the Issuer and the Cash Manager: (a) shall provide the list of Authorised Representatives and Call-back Contacts; (b) undertakes to give the Account Bank not less than five (5) Business Days' notice in writing in accordance with Clause 12 of this Agreement and Schedule 3 of the Incorporated Terms Memorandum, signed by an Authorised Representative (or as otherwise agreed with the Account Bank), of any amendment to its Authorised Representatives or Call-back Contacts giving the details specified in the relevant part of Schedule 1 (Form of Account Bank Mandate). Any such amendment shall take effect upon the expiry of the above notice period (or such shorter period as agreed between the Issuer and the Account Bank from time to time; (c) acknowledges and accepts the risks associated with any appointment of the same person(s) to act both as Authorised Representative and Call-back Contacts; and (d) acknowledges and agrees that the Account Bank may rely upon the confirmations or responses of anyone purporting to be a Call-back Contact in answering the telephone call back of the Account Bank.
Appears in 1 contract
Samples: Account Bank Agreement
Account Bank. 6.1 7.1 To induce the Account Bank to act hereunder, it is further agreed by each of the Issuer and the Administrator that:
(a) the Account Bank shall not be under any duty to give the amounts standing to the credit of the Issuer Accounts relevant Account Amount held by it hereunder any greater degree of care than it gives to amounts held for its general banking customers;
(b) this Agreement expressly sets forth all the duties of the Account Bank. The Account Bank shall not be bound by (and shall be deemed not to have notice of) the provisions of any agreement entered into by or involving the Issuer and/or the Administrator except this Agreement, and any Instruction and no implied duties or obligations of the Account Bank shall be read into this Agreement or any Instruction, whether or not such agreement has been previously disclosed to the Account Bank;
(c) the Account Bank is under no duty to ensure that funds withdrawn from the Issuer Accounts any Account are actually applied for the purpose for which they were withdrawn or that any Instruction is accurate, correct or in accordance with the terms of any other agreement or arrangement;
(cd) neither the Account Bank nor any of its officers, employees or agents shall be required to make any payment or distribution to the extent that the amount standing to the credit of the relevant Issuer Account Amount is insufficient and shall incur no liability whatsoever from any non-payment or non-distribution in such circumstances;
(de) save as provided for in Clause 18, each of the Issuer and the Administrator unconditionally agrees to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Account Bank according to the Account Bank's standard operating procedures or as the Account Bank deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement;
(ef)
(i) neither the Account Bank nor any of its officers, employees or agents shall be liable to any person or entity including but not limited to the Issuer for any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement save as are caused by its own gross negligence, wilful default or fraud;fraud;
(fii) the Account Bank shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event where, in the opinion of the Account Bank acting reasonably, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would or may result in the Account Bank being in breach of any Applicable Law or any Judgmentdecree, order, award, decision or judgment of any court, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law but with which the Account Bank would normally comply) of any relevant Authority, stock exchange or self-regulatory organisation to which the Account Bank is subject (including, without limitation, those of: of (i) the United States of America or any jurisdiction forming a part of it; , and (ii) England & Wales) and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, rule or regulation;
(giii) notwithstanding the foregoing, under no circumstances will the Account Bank be liable to any party Party or any other person for any indirect, incidental or consequential loss or damage (being, inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage;damage;
(hg) without prejudice to Clause 6.1(i7.1(h), the Account Bank shall not be obliged to make any payment or otherwise to act on any Instruction, with the exception of SWIFT Instructions submitted via CitiDirectand Citi Direct Instructions, notified to it by the Issuer (or the Administrator on its behalf) under this Agreement if it is unable:
(i) to verify any signature pursuant to any request or Payment Instruction against the specimen signature provided for the relevant Authorised Representative hereunderhereunder or any Time Deposit Dealing Instruction against the specimen signature provided for the relevant Authorised Dealer; and
(ii) where applicable as provided in Clause 18, to validate the authenticity of the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorised Representative of the IssuerIssuer (or the Administrator on its behalf);
(ih) the Account Bank shall be entitled to rely upon any Judgmentorder, judgment, award, decision, decree, certification, demand, notice, or other written instrument (including any Instruction or any requirement and/or request for information delivered by a person or Authority referred to in Clause 7.2 below) delivered to it by the Issuer (or the Administrator on its behalf) hereunder without being required to determine its authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so;so.
(ji) Each of the Administrator and the Issuer acknowledges that the Account Bank is authorised to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing:foregoing:
(i) without prejudice to Clause 6.1(i7.1(l), the Account Bank may rely and act upon an Instruction if it believes it contains sufficient information to enable it to act and has emanated from the Authorised Representative (and, if the Instruction has been appropriately executed submitted via SFTS, it has emanated from an Authorised E-mail Address) in which case, if it acts in good faith on such InstructionInstructions, such Instruction Instructions shall be binding on the Issuer and the Account Bank shall not be liable for doing so. The Account Bank is not responsible for errors or omissions made by the Issuer or the Administrator or resulting from fraud or the duplication of any Instruction by the Issuer or the Administrator;
(ii) notwithstanding any other provision hereof, the Account Bank shall have the right to refuse to act on any Instruction where it reasonably doubts its contents, authorisation, origination or compliance with this Agreement and will promptly notify the Issuer of its decisionsdecision;
(iii) if the Issuer (or the Administrator on its behalf) informs the Account Bank that it wishes to recall, cancel or amend an Instruction, with the exception of SWIFT Instructions and Citi Direct Instructions, the Account Bank is not obliged but will use its reasonable efforts to comply to the extent it is practicable to do so before the release or transfer of, or other dealing with, the relevant Account Amount. Subject to item (ii) above, any such recall, cancellation or amendment to the Instructions acted upon by the Account Bank shall be binding on the party who issues such Instructions; and
(iiiiv) all Instructions to the Issuer Account Bank, with the exception of SWIFT Instructions and Citi Direct Instructions, shall be sent in accordance with Clause 18. Each Party (other than the Account Bank) expressly acknowledges that it is fully aware of and agrees to accept the risks of error, security and privacy issues and fraudulent activities associated with transmitting Instructions through facsimile or any other means requiring manual intervention;
(kj) the Account Bank may consult lawyers (or other appropriate professional advisers) over any question as to the provisions of this Agreement or its duties and hereby agrees to disclose, where legally permissible, disclose a summary of the advice on which it intends to rely, produced by such lawyers or professional advisers, to the Issuer upon request. Without prejudice to Clauses 6.1(e7.1(f)(i) and 6.1(h7.1(f)(iii), the Account Bank shall not be liable for any action taken or omitted in accordance with such advice (in the absence of such advice containing a material manifest error);
(lk) this Clause 6.1(l7.1(k), Clauses 6.1(eClause 7.1(f), 6.1(f), 6.1(g), 6.1(i), 6.1(kClause 7.1(h) and 6.2Clause 7.1(i) above and Clause 7.2, the indemnity contained in Clause 8.2 8.1, Clause 11.2, Clause 11.3, Clause 13, Clause 19.3(a) and paragraphs 2 (Entire Agreement)Clause 20 below, 26 (Governing Law) and 27 (Jurisdiction) of Schedule 2 of the Incorporated Terms Memorandum shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank;
(ml) the Account Bank shall have no responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of arbitrators or any third party contemplated in any other document entered into by to which the Issuer is party as a means to resolve disputes and may rely without any liability upon the contents thereof;thereof;
(nm) in the event of:
(i) of any disagreement between the Trustee and either the Issuer or the Administrator, resulting in adverse or conflicting claims or demands being made or threatened in connection with any Account Amount or any portion thereof, or in the amounts standing to the credit of the Issuer Accounts; or
(ii) event that the Account Bank in good faith concluding that its duties is in doubt as to what action it should take hereunder are unclear in a material respectand has been unable to seek clarification under paragraph 7.1(p) below, the Account Bank Bank, without any liability in so doing, shall be entitled in its sole discretion to refuse to comply with accept instructions from the Trustee (notwithstanding there being a disagreement between the Trustee and any claims, demands or Instructions with respect to the amounts standing to the credit of the Issuer Accounts either:
(iii) for so long as such adverse or conflicting claims or demands continue; or
(iv) until the Account Bank's duties have been clarified to the satisfaction of the Account Bank (acting reasonably), and the Account Bank shall not be or become liable in any way to the Issuer for failure or refusal to comply with such claims, demands or Instructions and the Account Bank shall be entitled to refuse to act and to retain the amounts standing to the credit of the Issuer Accounts until required to release it in accordance with Clause 5.1(bother person);
(on) no printed without prejudice to paragraph 7.1(m), above, in the event of any disagreement between the Issuer and the Administrator resulting in adverse claims or other matter demands being made in connection with any language (including without limitation prospectusesAccount Amount or any portion thereof, notices, reports and promotional material) which mentions the name of the Account Bank or the rightsBank, powerswithout any liability in so doing, or duties of the Account Bank shall be publicly issued by accept instructions from the Issuer or on its behalf unless (notwithstanding there being a disagreement between the Account Bank shall first have given its express written consent theretoIssuer and the Administrator);
(i) except as provided hereunder, and except to the extent required otherwise under Applicable Law, the obligations and duties of the Account Bank are binding only on the Account Bank and are not obligations or duties of any Citi Organisation; and
(ii) the rights of the Issuer Issuer, the Administrator and/or the Trustee with respect to the Account Bank extend only to the Account Bank and, except to the extent required under Applicable Lawany applicable law, do not extend to any other Citi Organisation; and;
(p) if the Account Bank receives an Instruction which is ambiguous or in the event that the Account Bank in good faith is in doubt as to what action it should take hereunder, the Account Bank shall be entitled to seek clarification from the party providing such Instruction;
(q) with regard to CitiDirectCiti Direct
(i) it consents to the transmission of data and communications through the internet and acknowledges that the internet is not necessarily a secure communications and delivery system, and understands the confidentiality and other risks associated with it. The Each of the Administrator and the Issuer agrees to be bound by any communication validated by the Citibank, N.A. ("Citibank") branch, subsidiary or affiliate providing the service to which such communication relates according to the CitiDirect security procedures applicable to Citi Direct (the "Security Procedures") (as updated from time to time) applicable to the type of communication and consistent with the Issuer's access profile. The Each of the Administrator and the Issuer's ’s use of CitiDirect Citi Direct after receipt of updated CitiDirect security procedures Security Procedures (including, but not limited to, the posting of such revised CitiDirect security procedures Security Procedures on the CitiDirect Internet Citi Direct internet site) constitutes acceptance of such updated CitiDirect security procedures Security Procedures and such updated CitiDirect security procedures Security Procedures shall replace the prior agreed upon CitiDirect security proceduresSecurity Procedures; and
(ii) it will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communication and for appointing users (including any Users users employed by entities other than the Customer Issuer and/or the Administrator) ("Users")), including (i) creating, deleting or modifying User profiles, (ii) building access profiles which define the applications available to Users in that group, (iii) enabling and disabling User identification, (iv) product set-up and site/flow control (i.e. identifying levels of transaction authorization), (v) allocation of dynamic password cards or other access cards or passwords for system access, (vi) notification to Citibank if there is any reason to suspect security has been compromised, (vii) creating, deleting or modifying customer-managed libraries, and (viii) where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by Citibank from time to time in connection with the provision of services and/or products to the Issuer. Any two security managers, acting in concert, are authorized to give instructions or confirmations to Citibank (and Citibank is authorized to accept such instructions and confirmations) in relation to any activity mentioned above or in connection with facilitating Customer's communication via the Internet.
6.2 The Account Bank will treat information relating to or provided by the Issuer as confidential. Unless consent is prohibited by law, the Issuer consents to the processing, transfer and disclosure by the Account Bank, where necessary (and subject to compliance with Applicable Law), of any information relating to or provided by the Issuer (including banking secrets, personal data and other confidential information) to any Authorised Recipients, for confidential use in connection with this Agreement. The Account Bank shall ensure that each Authorised Recipient to which it provides such confidential information is aware that such information is confidential and should be treated accordingly.
6.3 An Authorised Recipient may transfer and disclose any such information as is required or requested by any court, legal process, Applicable Law or Authority, including an auditor of the Issuer and including any payer or payee as required by Applicable Law, and may use (and its performance will be subject to the rules of) any communications, clearing or payment systems, intermediary bank or other system.
6.4 For the purposes of the call-back arrangements, the Issuer and the Cash Manager:
(a) shall provide the list of Authorised Representatives and Call-back Contacts;
(b) undertakes to give the Account Bank not less than five (5) Business Days' notice in writing in accordance with Clause 12 of this Agreement and Schedule 3 of the Incorporated Terms Memorandum, signed by an Authorised Representative (or as otherwise agreed with the Account Bank), of any amendment to its Authorised Representatives or Call-back Contacts giving the details specified in the relevant part of Schedule 1 (Form of Account Bank Mandate). Any such amendment shall take effect upon the expiry of the above notice period (or such shorter period as agreed between the Issuer and the Account Bank from time to time;
(c) acknowledges and accepts the risks associated with any appointment of the same person(s) to act both as Authorised Representative and Call-back Contacts; and
(d) acknowledges and agrees that the Account Bank may rely upon the confirmations or responses of anyone purporting to be a Call-back Contact in answering the telephone call back of the Account Bank.,
Appears in 1 contract
Samples: Account Bank Agreement
Account Bank. 6.1 7.1 To induce the Account Bank to act hereunder, it is further agreed by each of the Issuer and the Administrator that:
(a) the Account Bank shall not be under any duty to give the amounts standing to the credit of the Issuer Accounts relevant Account Amount held by it hereunder any greater degree of care than it gives to amounts held for its general banking customers;
(b) this Agreement expressly sets forth all the duties of the Account Bank. The Account Bank shall not be bound by (and shall be deemed not to have notice of) the provisions of any agreement entered into by or involving the Issuer and/or the Administrator except this Agreement, and any Instruction and no implied duties or obligations of the Account Bank shall be read into this Agreement or any Instruction, whether or not such agreement has been previously disclosed to the Account Bank;
(c) the Account Bank is under no duty to ensure that funds withdrawn from the Issuer Accounts any Account are actually applied for the purpose for which they were withdrawn or that any Instruction is accurate, correct or in accordance with the terms of any other agreement or arrangement;
(cd) neither the Account Bank nor any of its officers, employees or agents shall be required to make any payment or distribution to the extent that the amount standing to the credit of the relevant Issuer Account Amount is insufficient and shall incur no liability whatsoever from any non-payment or non-distribution in such circumstances;
(de) save as provided for in Clause 18, each of the Issuer and the Administrator unconditionally agrees to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Account Bank according to the Account Bank's standard operating procedures or as the Account Bank deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement;
(ei) neither the Account Bank nor any of its officers, employees or agents shall be liable to any person or entity including but not limited to the Issuer for any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement save as are caused by its own gross negligence, wilful default or fraud;
(fii) the Account Bank shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event where, in the opinion of the Account Bank acting reasonably, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would or may result in the Account Bank being in breach of any Applicable Law or any Judgmentdecree, order, award, decision or judgment of any court, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law but with which the Account Bank would normally comply) of any relevant Authority, stock exchange or self-regulatory organisation to which the Account Bank is subject (including, without limitation, those of: of (i) the United States of America or any jurisdiction forming a part of it; , and (ii) England & Wales) and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, rule or regulation;
(giii) notwithstanding the foregoing, under no circumstances will the Account Bank be liable to any party Party or any other person for any indirect, incidental or consequential loss or damage (being, inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage;
(hg) without prejudice to Clause 6.1(i7.1(h), the Account Bank shall not be obliged to make any payment or otherwise to act on any Instruction, with the exception of SWIFT Instructions submitted via CitiDirectand Citi Direct Instructions, notified to it by the Issuer (or the Administrator on its behalf) under this Agreement if it is unable:
(i) to verify any signature pursuant to any request or Payment Instruction against the specimen signature provided for the relevant Authorised Representative hereunderhereunder or any Time Deposit Dealing Instruction against the specimen signature provided for the relevant Authorised Dealer; and
(ii) where applicable as provided in Clause 18, to validate the authenticity of the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorised Representative of the IssuerIssuer (or the Administrator on its behalf);
(ih) the Account Bank shall be entitled to rely upon any Judgmentorder, judgment, award, decision, decree, certification, demand, notice, or other written instrument (including any Instruction or any requirement and/or request for information delivered by a person or Authority referred to in Clause 7.2 below) delivered to it by the Issuer (or the Administrator on its behalf) hereunder without being required to determine its authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so;.
(ji) Each of the Administrator and the Issuer acknowledges that the Account Bank is authorised to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing:
(i) without prejudice to Clause 6.1(i7.1(l), the Account Bank may rely and act upon an Instruction if it believes it contains sufficient information to enable it to act and has emanated from the Authorised Representative (and, if the Instruction has been appropriately executed submitted via SFTS, it has emanated from an Authorised E-mail Address) in which case, if it acts in good faith on such InstructionInstructions, such Instruction Instructions shall be binding on the Issuer and the Account Bank shall not be liable for doing so. The Account Bank is not responsible for errors or omissions made by the Issuer or the Administrator or resulting from fraud or the duplication of any Instruction by the Issuer or the Administrator;
(ii) notwithstanding any other provision hereof, the Account Bank shall have the right to refuse to act on any Instruction where it reasonably doubts its contents, authorisation, origination or compliance with this Agreement and will promptly notify the Issuer of its decisionsdecision;
(iii) if the Issuer (or the Administrator on its behalf) informs the Account Bank that it wishes to recall, cancel or amend an Instruction, with the exception of SWIFT Instructions and Citi Direct Instructions, the Account Bank is not obliged but will use its reasonable efforts to comply to the extent it is practicable to do so before the release or transfer of, or other dealing with, the relevant Account Amount. Subject to item (ii) above, any such recall, cancellation or amendment to the Instructions acted upon by the Account Bank shall be binding on the party who issues such Instructions; and
(iiiiv) all Instructions to the Issuer Account Bank, with the exception of SWIFT Instructions and Citi Direct Instructions, shall be sent in accordance with Clause 18. Each Party (other than the Account Bank) expressly acknowledges that it is fully aware of and agrees to accept the risks of error, security and privacy issues and fraudulent activities associated with transmitting Instructions through facsimile or any other means requiring manual intervention;
(kj) the Account Bank may consult lawyers (or other appropriate professional advisers) over any question as to the provisions of this Agreement or its duties and hereby agrees to disclose, where legally permissible, disclose a summary of the advice on which it intends to rely, produced by such lawyers or professional advisers, to the Issuer upon request. Without prejudice to Clauses 6.1(e7.1(f)(i) and 6.1(h7.1(f)(iii), the Account Bank shall not be liable for any action taken or omitted in accordance with such advice (in the absence of such advice containing a material manifest error);
(lk) this Clause 6.1(l7.1(k), Clauses 6.1(eClause 7.1(f), 6.1(f), 6.1(g), 6.1(i), 6.1(kClause 7.1(h) and 6.2Clause 7.1(i) above and Clause 7.2, the indemnity contained in Clause 8.2 and paragraphs 2 (Entire Agreement)8.1, 26 (Governing LawClause 11.2, Clause 11.3, Clause 13, Clause 19.3(a) and 27 (Jurisdiction) of Schedule 2 of the Incorporated Terms Memorandum Clause 20 below, shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank;
(ml) the Account Bank shall have no responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of arbitrators or any third party contemplated in any other document entered into by to which the Issuer is party as a means to resolve disputes and may rely without any liability upon the contents thereof;
(nm) in the event of:
(i) of any disagreement between the Trustee and either the Issuer or the Administrator, resulting in adverse or conflicting claims or demands being made or threatened in connection with any Account Amount or any portion thereof, or in the amounts standing to the credit of the Issuer Accounts; or
(ii) event that the Account Bank in good faith concluding that its duties is in doubt as to what action it should take hereunder are unclear in a material respectand has been unable to seek clarification under paragraph 7.1(p) below, the Account Bank Bank, without any liability in so doing, shall be entitled in its sole discretion to refuse to comply with accept instructions from the Trustee (notwithstanding there being a disagreement between the Trustee and any claims, demands or Instructions with respect to the amounts standing to the credit of the Issuer Accounts either:
(iii) for so long as such adverse or conflicting claims or demands continue; or
(iv) until the Account Bank's duties have been clarified to the satisfaction of the Account Bank (acting reasonably), and the Account Bank shall not be or become liable in any way to the Issuer for failure or refusal to comply with such claims, demands or Instructions and the Account Bank shall be entitled to refuse to act and to retain the amounts standing to the credit of the Issuer Accounts until required to release it in accordance with Clause 5.1(bother person);
(on) no printed without prejudice to paragraph 7.1(m), above, in the event of any disagreement between the Issuer and the Administrator resulting in adverse claims or other matter demands being made in connection with any language (including without limitation prospectusesAccount Amount or any portion thereof, notices, reports and promotional material) which mentions the name of the Account Bank or the rightsBank, powerswithout any liability in so doing, or duties of the Account Bank shall be publicly issued by accept instructions from the Issuer or on its behalf unless (notwithstanding there being a disagreement between the Account Bank shall first have given its express written consent theretoIssuer and the Administrator);
(i) except as provided hereunder, and except to the extent required otherwise under Applicable Law, the obligations and duties of the Account Bank are binding only on the Account Bank and are not obligations or duties of any Citi Organisation; and
(ii) the rights of the Issuer Issuer, the Administrator and/or the Trustee with respect to the Account Bank extend only to the Account Bank and, except to the extent required under Applicable Lawany applicable law, do not extend to any other Citi Organisation; and;
(p) if the Account Bank receives an Instruction which is ambiguous or in the event that the Account Bank in good faith is in doubt as to what action it should take hereunder, the Account Bank shall be entitled to seek clarification from the party providing such Instruction;
(q) with regard to CitiDirectCiti Direct
(i) it consents to the transmission of data and communications through the internet and acknowledges that the internet is not necessarily a secure communications and delivery system, and understands the confidentiality and other risks associated with it. The Each of the Administrator and the Issuer agrees to be bound by any communication validated by the Citibank, N.A. ("Citibank") branch, subsidiary or affiliate providing the service to which such communication relates according to the CitiDirect security procedures applicable to Citi Direct (the "Security Procedures") (as updated from time to time) applicable to the type of communication and consistent with the Issuer's access profile. The Each of the Administrator and the Issuer's ’s use of CitiDirect Citi Direct after receipt of updated CitiDirect security procedures Security Procedures (including, but not limited to, the posting of such revised CitiDirect security procedures Security Procedures on the CitiDirect Internet Citi Direct internet site) constitutes acceptance of such updated CitiDirect security procedures Security Procedures and such updated CitiDirect security procedures Security Procedures shall replace the prior agreed upon CitiDirect security proceduresSecurity Procedures; and
(ii) it will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communication and for appointing users (including any Users users employed by entities other than the Customer Issuer and/or the Administrator) ("Users")), including (i) creating, deleting or modifying User profiles, (ii) building access profiles which define the applications available to Users in that group, (iii) enabling and disabling User identification, (iv) product set-up and site/flow control (i.e. identifying levels of transaction authorization), (v) allocation of dynamic password cards or other access cards or passwords for system access, (vi) notification to Citibank if there is any reason to suspect security has been compromised, (vii) creating, deleting or modifying customer-managed libraries, and (viii) where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by Citibank from time to time in connection with the provision of services and/or products to the Issuer. Any two security managers, acting in concert, are authorized to give instructions or confirmations to Citibank (and Citibank is authorized to accept such instructions and confirmations) in relation to any activity mentioned above or in connection with facilitating Customer's communication via the Internet.
6.2 The Account Bank will treat information relating to or provided by the Issuer as confidential. Unless consent is prohibited by law, the Issuer consents to the processing, transfer and disclosure by the Account Bank, where necessary (and subject to compliance with Applicable Law), of any information relating to or provided by the Issuer (including banking secrets, personal data and other confidential information) to any Authorised Recipients, for confidential use in connection with this Agreement. The Account Bank shall ensure that each Authorised Recipient to which it provides such confidential information is aware that such information is confidential and should be treated accordingly.
6.3 An Authorised Recipient may transfer and disclose any such information as is required or requested by any court, legal process, Applicable Law or Authority, including an auditor of the Issuer and including any payer or payee as required by Applicable Law, and may use (and its performance will be subject to the rules of) any communications, clearing or payment systems, intermediary bank or other system.
6.4 For the purposes of the call-back arrangements, the Issuer and the Cash Manager:
(a) shall provide the list of Authorised Representatives and Call-back Contacts;
(b) undertakes to give the Account Bank not less than five (5) Business Days' notice in writing in accordance with Clause 12 of this Agreement and Schedule 3 of the Incorporated Terms Memorandum, signed by an Authorised Representative (or as otherwise agreed with the Account Bank), of any amendment to its Authorised Representatives or Call-back Contacts giving the details specified in the relevant part of Schedule 1 (Form of Account Bank Mandate). Any such amendment shall take effect upon the expiry of the above notice period (or such shorter period as agreed between the Issuer and the Account Bank from time to time;
(c) acknowledges and accepts the risks associated with any appointment of the same person(s) to act both as Authorised Representative and Call-back Contacts; and
(d) acknowledges and agrees that the Account Bank may rely upon the confirmations or responses of anyone purporting to be a Call-back Contact in answering the telephone call back of the Account Bank.,
Appears in 1 contract
Samples: Account Bank Agreement
Account Bank. 6.1 7.1 To induce the Account Bank to act hereunder, it is further agreed by each of the Issuer and the Administrators that:
(a) the Account Bank shall not be under any duty to give the amounts standing to the credit of the Issuer Accounts relevant Account Amount held by it hereunder any greater degree of care than it gives to amounts held for its general banking customers;
(b) this Agreement expressly sets forth all the duties of the Account Bank. The Account Bank shall not be bound by (and shall be deemed not to have notice of) the provisions of any agreement entered into by or involving the Issuer and/or the Administrators except this Agreement, and any Instruction and no implied duties or obligations of the Account Bank shall be read into this Agreement or any Instruction, whether or not such agreement has been previously disclosed to the Account Bank;
(c) the Account Bank is under no duty to ensure that funds withdrawn from the Issuer Accounts any Account are actually applied for the purpose for which they were withdrawn or that any Instruction is accurate, correct or in accordance with the terms of any other agreement or arrangement;
(cd) neither the Account Bank nor any of its officers, employees or agents shall be required to make any payment or distribution to the extent that the amount standing to the credit of the relevant Issuer Account Amount is insufficient and shall incur no liability whatsoever from any non-payment or non-distribution in such circumstances;
(de) save as provided for in Clause 18 (Notices), each of the Issuer and the Administrators unconditionally agrees to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Account Bank according to the Account Bank's standard operating procedures or as the Account Bank deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement;
(ei) neither the Account Bank nor any of its officers, employees or agents shall be liable to any person or entity including but not limited to the Issuer for any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement save as are caused by its own gross negligence, wilful default or fraud;
(fii) the Account Bank shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event where, in the opinion of the Account Bank acting reasonably, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would or may result in the Account Bank being in breach of any Applicable Law or any Judgmentdecree, order, award, decision or judgment of any court, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law but with which the Account Bank would normally comply) of any relevant Authority, stock exchange or self-regulatory organisation to which the Account Bank is subject (including, without limitation, those of: of (i) the United States of America or any jurisdiction forming a part of it; , and (ii) England & Wales) and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, rule or regulation;
(giii) notwithstanding the foregoing, under no circumstances will the Account Bank be liable to any party Party or any other person for any indirect, incidental or consequential loss or damage (being, inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage;
(hg) without prejudice to Clause 6.1(i7.1(h), the Account Bank shall not be obliged to make any payment or otherwise to act on any Instruction, with the exception of SWIFT Instructions submitted via CitiDirectand Citi Direct Instructions, notified to it by the Issuer (or PML as Administrator on its behalf) under this Agreement if it is unable:
(i) to verify any signature pursuant to any request or Payment Instruction against the specimen signature provided for the relevant Authorised Representative hereunderhereunder or any Time Deposit Dealing Instruction against the specimen signature provided for the relevant Authorised Dealer; and
(ii) where applicable as provided in Clause 18 (Notices), to validate the authenticity of the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorised Representative of the IssuerIssuer (or PML as Administrator on its behalf);
(ih) the Account Bank shall be entitled to rely upon any Judgmentorder, judgment, award, decision, decree, certification, demand, notice, or other written instrument (including any Instruction or any requirement and/or request for information delivered by a person or Authority referred to in Clause 7.2 below) delivered to it by the Issuer (or PML as Administrator on its behalf) hereunder without being required to determine its authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so;.
(ji) Each of the Administrators and the Issuer acknowledges that the Account Bank is authorised to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing:
(i) without prejudice to Clause 6.1(i7.1(l), the Account Bank may rely and act upon an Instruction if it believes it contains sufficient information to enable it to act and has emanated from the Authorised Representative (and, if the Instruction has been appropriately executed submitted via SFTS, it has emanated from an Authorised E-mail Address) in which case, if it acts in good faith on such InstructionInstructions, such Instruction Instructions shall be binding on the Issuer and the Account Bank shall not be liable for doing so. The Account Bank is not responsible for errors or omissions made by the Issuer or the Administrators or resulting from fraud or the duplication of any Instruction by the Issuer or the Administrators;
(ii) notwithstanding any other provision hereof, the Account Bank shall have the right to refuse to act on any Instruction where it reasonably doubts its contents, authorisation, origination or compliance with this Agreement and will promptly notify the Issuer of its decisionsdecision;
(iii) if the Issuer (or PML as Administrator on its behalf) informs the Account Bank that it wishes to recall, cancel or amend an Instruction, with the exception of SWIFT Instructions and Citi Direct Instructions, the Account Bank is not obliged but will use its reasonable efforts to comply to the extent it is practicable to do so before the release or transfer of, or other dealing with, the relevant Account Amount. Subject to item (ii) above, any such recall, cancellation or amendment to the Instructions acted upon by the Account Bank shall be binding on the party who issues such Instructions; and
(iiiiv) all Instructions to the Issuer Account Bank, with the exception of SWIFT Instructions and Citi Direct Instructions, shall be sent in accordance with Clause 18 (Notices). Each Party (other than the Account Bank) expressly acknowledges that it is fully aware of and agrees to accept the risks of error, security and privacy issues and fraudulent activities associated with transmitting Instructions through facsimile or any other means requiring manual intervention;
(kj) the Account Bank may consult lawyers (or other appropriate professional advisers) over any question as to the provisions of this Agreement or its duties and hereby agrees to disclose, where legally permissible, disclose a summary of the advice on which it intends to rely, produced by such lawyers or professional advisers, to the Issuer upon request. Without prejudice to Clauses 6.1(e7.1(f)(i) and 6.1(h7.1(f)(iii), the Account Bank shall not be liable for any action taken or omitted in accordance with such advice (in the absence of such advice containing a material manifest error);
(lk) this Clause 6.1(l7.1(k), Clauses 6.1(eClause 7.1(f), 6.1(fClause 7.1(h) and Clause 7.1(i) above and Clause 7.2, Clause 8.1, Clause 11.2, Clause 11.3, Clause 13 (Fees and Expenses), 6.1(g), 6.1(i), 6.1(kClause 19.3(a) and 6.2, the indemnity contained in Clause 8.2 and paragraphs 2 (Entire Agreement), 26 20 (Governing Law) Law and 27 (Jurisdiction) of Schedule 2 of the Incorporated Terms Memorandum below, shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank;
(ml) the Account Bank shall have no responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of arbitrators or any third party contemplated in any other document entered into by to which the Issuer is party as a means to resolve disputes and may rely without any liability upon the contents thereof;
(nm) in the event of:
(i) of any disagreement between the Trustee and either the Issuer or any Administrator, resulting in adverse or conflicting claims or demands being made or threatened in connection with any Account Amount or any portion thereof, or in the amounts standing to the credit of the Issuer Accounts; or
(ii) event that the Account Bank in good faith concluding that its duties is in doubt as to what action it should take hereunder are unclear in a material respectand has been unable to seek clarification under paragraph 7.1(p) below, the Account Bank Bank, without any liability in so doing, shall be entitled in its sole discretion to refuse to comply with accept instructions from the Trustee (notwithstanding there being a disagreement between the Trustee and any claims, demands or Instructions with respect to the amounts standing to the credit of the Issuer Accounts either:
(iii) for so long as such adverse or conflicting claims or demands continue; or
(iv) until the Account Bank's duties have been clarified to the satisfaction of the Account Bank (acting reasonably), and the Account Bank shall not be or become liable in any way to the Issuer for failure or refusal to comply with such claims, demands or Instructions and the Account Bank shall be entitled to refuse to act and to retain the amounts standing to the credit of the Issuer Accounts until required to release it in accordance with Clause 5.1(bother person);
(on) no printed without prejudice to paragraph 7.1(m), above, in the event of any disagreement between the Issuer and any Administrator resulting in adverse claims or other matter demands being made in connection with any language (including without limitation prospectusesAccount Amount or any portion thereof, notices, reports and promotional material) which mentions the name of the Account Bank or the rightsBank, powerswithout any liability in so doing, or duties of the Account Bank shall be publicly issued by accept instructions from the Issuer or on its behalf unless (notwithstanding there being a disagreement between the Account Bank shall first have given its express written consent theretoIssuer and an Administrator);
(i) except as provided hereunder, and except to the extent required otherwise under Applicable Law, the obligations and duties of the Account Bank are binding only on the Account Bank and are not obligations or duties of any Citi Organisation; and
(ii) the rights of the Issuer Issuer, the Administrators and/or the Trustee with respect to the Account Bank extend only to the Account Bank and, except to the extent required under Applicable Lawany applicable law, do not extend to any other Citi Organisation; and;
(p) if the Account Bank receives an Instruction which is ambiguous or in the event that the Account Bank in good faith is in doubt as to what action it should take hereunder, the Account Bank shall be entitled to seek clarification from the party providing such Instruction;
(q) with regard to CitiDirectCiti Direct
(i) it consents to the transmission of data and communications through the internet and acknowledges that the internet is not necessarily a secure communications and delivery system, and understands the confidentiality and other risks associated with it. The Each of the Administrators and the Issuer agrees to be bound by any communication validated by the Citibank, N.A. ("Citibank") branch, subsidiary or affiliate providing the service to which such communication relates according to the CitiDirect security procedures applicable to Citi Direct (the "Security Procedures") (as updated from time to time) applicable to the type of communication and consistent with the Issuer's access profile. The Each of the Administrators and the Issuer's ’s use of CitiDirect Citi Direct after receipt of updated CitiDirect security procedures Security Procedures (including, but not limited to, the posting of such revised CitiDirect security procedures Security Procedures on the CitiDirect Internet Citi Direct internet site) constitutes acceptance of such updated CitiDirect security procedures Security Procedures and such updated CitiDirect security procedures Security Procedures shall replace the prior agreed upon CitiDirect security proceduresSecurity Procedures; and
(ii) it will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communication and for appointing users (including any Users users employed by entities other than the Customer Issuer and/or the Administrators) ("Users")), including (i) creating, deleting or modifying User profiles, (ii) building access profiles which define the applications available to Users in that group, (iii) enabling and disabling User identification, (iv) product set-up and site/flow control (i.e. identifying levels of transaction authorization), (v) allocation of dynamic password cards or other access cards or passwords for system access, (vi) notification to Citibank if there is any reason to suspect security has been compromised, (vii) creating, deleting or modifying customer-managed libraries, and (viii) where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by Citibank from time to time in connection with the provision of services and/or products to the Issuer. Any two security managers, acting in concert, are authorized to give instructions or confirmations to Citibank (and Citibank is authorized to accept such instructions and confirmations) in relation to any activity mentioned above or in connection with facilitating Customer's communication via the Internet.
6.2 The Account Bank will treat information relating to or provided by the Issuer as confidential. Unless consent is prohibited by law, the Issuer consents to the processing, transfer and disclosure by the Account Bank, where necessary (and subject to compliance with Applicable Law), of any information relating to or provided by the Issuer (including banking secrets, personal data and other confidential information) to any Authorised Recipients, for confidential use in connection with this Agreement. The Account Bank shall ensure that each Authorised Recipient to which it provides such confidential information is aware that such information is confidential and should be treated accordingly.
6.3 An Authorised Recipient may transfer and disclose any such information as is required or requested by any court, legal process, Applicable Law or Authority, including an auditor of the Issuer and including any payer or payee as required by Applicable Law, and may use (and its performance will be subject to the rules of) any communications, clearing or payment systems, intermediary bank or other system.
6.4 For the purposes of the call-back arrangements, the Issuer and the Cash Manager:
(a) shall provide the list of Authorised Representatives and Call-back Contacts;
(b) undertakes to give the Account Bank not less than five (5) Business Days' notice in writing in accordance with Clause 12 of this Agreement and Schedule 3 of the Incorporated Terms Memorandum, signed by an Authorised Representative (or as otherwise agreed with the Account Bank), of any amendment to its Authorised Representatives or Call-back Contacts giving the details specified in the relevant part of Schedule 1 (Form of Account Bank Mandate). Any such amendment shall take effect upon the expiry of the above notice period (or such shorter period as agreed between the Issuer and the Account Bank from time to time;
(c) acknowledges and accepts the risks associated with any appointment of the same person(s) to act both as Authorised Representative and Call-back Contacts; and
(d) acknowledges and agrees that the Account Bank may rely upon the confirmations or responses of anyone purporting to be a Call-back Contact in answering the telephone call back of the Account Bank.,
Appears in 1 contract
Samples: Account Bank Agreement
Account Bank. 6.1 7.1 To induce the Account Bank to act hereunder, it is further agreed by each of the Issuer and the Administrator that:
(a) the Account Bank shall not be under any duty to give the amounts standing to the credit of the Issuer Accounts relevant Account Amount held by it hereunder any greater degree of care than it gives to amounts held for its general banking customers;
(b) this Agreement expressly sets forth all the duties of the Account Bank. The Account Bank shall not be bound by (and shall be deemed not to have notice of) the provisions of any agreement entered into by or involving the Issuer and/or the Administrator except this Agreement, and any Instruction and no implied duties or obligations of the Account Bank shall be read into this Agreement or any Instruction, whether or not such agreement has been previously disclosed to the Account Bank;
(c) the Account Bank is under no duty to ensure that funds withdrawn from the Issuer Accounts any Account are actually applied for the purpose for which they were withdrawn or that any Instruction is accurate, correct or in accordance with the terms of any other agreement or arrangement;
(cd) neither the Account Bank nor any of its officers, employees or agents shall be required to make any payment or distribution to the extent that the amount standing to the credit of the relevant Issuer Account Amount is insufficient and shall incur no liability whatsoever from any non-payment or non-distribution in such circumstances;
(de) save as provided for in Clause 18, each of the Issuer and the Administrator unconditionally agrees to the call-back arrangement and the use of any form of telephonic or electronic monitoring or recording by the Account Bank according to the Account Bank's standard operating procedures or as the Account Bank deems appropriate for security and service purposes, and that such recording may be produced as evidence in any proceedings brought in connection with this Agreement;
(ei) neither the Account Bank nor any of its officers, employees or agents shall be liable to any person or entity including but not limited to the Issuer for any loss, liability, claim, debts, action, damages or expenses arising out of or in connection with its performance of or its failure to perform any of its obligations under this Agreement save as are caused by its own gross negligence, wilful default or fraud;
(fii) the Account Bank shall not be responsible for any loss or damage, or failure to comply or delay in complying with any duty or obligation, under or pursuant to this Agreement arising as a direct or indirect result of any Force Majeure Event or any event where, in the opinion of the Account Bank acting reasonably, performance of any duty or obligation under or pursuant to this Agreement would or may be illegal or would result in the Account Bank being in breach of any Applicable Law or any Judgmentdecree, order, award, decision or judgment of any court, or practice, request, direction, notice, announcement or similar action (whether or not having the force of law but with which the Account Bank would normally comply) of any relevant Authority, stock exchange or self-regulatory organisation to which the Account Bank is subject (including, without limitation, those of: of (i) the United States of America or any jurisdiction forming a part of it; , and (ii) England & Wales) and may without liability do anything which is, in its reasonable opinion, necessary to comply with any such law, rule or regulation;
(giii) notwithstanding the foregoing, under no circumstances will the Account Bank be liable to any party Party or any other person for any indirect, incidental or consequential loss or damage (being, inter alia, loss of business, goodwill, opportunity or profit) even if advised of such loss or damage;
(hg) without prejudice to Clause 6.1(i7.1(h), the Account Bank shall not be obliged to make any payment or otherwise to act on any Instruction, with the exception of SWIFT Instructions submitted via CitiDirectand Citi Direct Instructions, notified to it by the Issuer (or the Administrator on its behalf) under this Agreement if it is unable:
(i) to verify any signature pursuant to any request or Payment Instruction against the specimen signature provided for the relevant Authorised Representative hereunderhereunder or any Time Deposit Dealing Instruction against the specimen signature provided for the relevant Authorised Dealer; and
(ii) where applicable as provided in Clause 18, to validate the authenticity of the request by telephoning a Call-back Contact who has not executed the relevant request or Instruction as an Authorised Representative of the IssuerIssuer (or the Administrator on its behalf);
(ih) the Account Bank shall be entitled to rely upon any Judgmentorder, judgment, award, decision, decree, certification, demand, notice, or other written instrument (including any Instruction or any requirement and/or request for information delivered by a person or Authority referred to in Clause 7.2 below) delivered to it by the Issuer (or the Administrator on its behalf) hereunder without being required to determine its authenticity or the correctness of any fact stated therein or the validity of the service thereof. The Account Bank may act in reliance upon any instrument or signature believed by it to be genuine and may assume that any person purporting to give receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorised to do so;.
(ji) Each of the Administrator and the Issuer acknowledges that the Account Bank is authorised to rely conclusively upon any Instructions received by any means agreed hereunder or otherwise agreed by all parties hereto. In furtherance of the foregoing:
(i) without prejudice to Clause 6.1(i7.1(l), the Account Bank may rely and act upon an Instruction if it believes it contains sufficient information to enable it to act and has emanated from the Authorised Representative (and, if the Instruction has been appropriately executed submitted via SFTS, it has emanated from an Authorised E-mail Address) in which case, if it acts in good faith on such InstructionInstructions, such Instruction Instructions shall be binding on the Issuer and the Account Bank shall not be liable for doing so. The Account Bank is not responsible for errors or omissions made by the Issuer or resulting from fraud or the duplication of any Instruction by the Issuer;
(ii) notwithstanding any other provision hereof, the Account Bank shall have the right to refuse to act on any Instruction where it reasonably doubts its contents, authorisation, origination or compliance with this Agreement and will promptly notify the Issuer of its decisionsdecision;
(iii) if the Issuer (or the Administrator on its behalf) informs the Account Bank that it wishes to recall, cancel or amend an Instruction, with the exception of SWIFT Instructions and Citi Direct Instructions, the Account Bank is not obliged but will use its reasonable efforts to comply to the extent it is practicable to do so before the release or transfer of, or other dealing with, the relevant Account Amount. Subject to item (ii) above, any such recall, cancellation or amendment to the Instructions acted upon by the Account Bank shall be binding on the party who issues such Instructions; and
(iiiiv) all Instructions to the Issuer Account Bank, with the exception of SWIFT Instructions and Citi Direct Instructions, shall be sent in accordance with Clause 18. Each Party (other than the Account Bank) expressly acknowledges that it is fully aware of and agrees to accept the risks of error, security and privacy issues and fraudulent activities associated with transmitting Instructions through facsimile or any other means requiring manual intervention;
(kj) the Account Bank may consult lawyers (or other appropriate professional advisers) over any question as to the provisions of this Agreement or its duties and hereby agrees to disclose, where legally permissible, disclose a summary of the advice on which it intends to rely, produced by such lawyers or professional advisers, to the Issuer upon request. Without prejudice to Clauses 6.1(e7.1(f)(i) and 6.1(h7.1(f)(iii), the Account Bank shall not be liable for any action taken or omitted in accordance with such advice (in the absence of such advice containing a material manifest error);
(lk) this Clause 6.1(l7.1(k), Clauses 6.1(eClause 7.1(f), 6.1(f), 6.1(g), 6.1(i), 6.1(kClause 7.1(h) and 6.2Clause 7.1(i) above and Clause 7.2, the indemnity contained in Clause 8.2 and paragraphs 2 (Entire Agreement)8.1, 26 (Governing LawClause 11.2, Clause 11.3, Clause 13, Clause 19.3(a) and 27 (Jurisdiction) of Schedule 2 of the Incorporated Terms Memorandum Clause 20 below, shall survive notwithstanding any termination of this Agreement or the resignation or replacement of the Account Bank;
(ml) the Account Bank shall have no responsibility for the accuracy or appropriateness of the contents of any ruling (including the merits of such ruling) of arbitrators or any third party contemplated in any other document entered into by to which the Issuer is party as a means to resolve disputes and may rely without any liability upon the contents thereof;
(nm) in the event of:
(i) of any disagreement between the Trustee and either the Issuer or the Administrator, resulting in adverse or conflicting claims or demands being made or threatened in connection with any Account Amount or any portion thereof, or in the amounts standing to the credit of the Issuer Accounts; or
(ii) event that the Account Bank in good faith concluding that its duties is in doubt as to what action it should take hereunder are unclear in a material respectand has been unable to seek clarification under paragraph 7.1(p) below, the Account Bank Bank, without any liability in so doing, shall be entitled in its sole discretion to refuse to comply with accept instructions from the Trustee (notwithstanding there being a disagreement between the Trustee and any claims, demands or Instructions with respect to the amounts standing to the credit of the Issuer Accounts either:
(iii) for so long as such adverse or conflicting claims or demands continue; or
(iv) until the Account Bank's duties have been clarified to the satisfaction of the Account Bank (acting reasonably), and the Account Bank shall not be or become liable in any way to the Issuer for failure or refusal to comply with such claims, demands or Instructions and the Account Bank shall be entitled to refuse to act and to retain the amounts standing to the credit of the Issuer Accounts until required to release it in accordance with Clause 5.1(bother person);
(on) no printed without prejudice to paragraph 7.1(m), above, in the event of any disagreement between the Issuer and the Administrator resulting in adverse claims or other matter demands being made in connection with any language (including without limitation prospectusesAccount Amount or any portion thereof, notices, reports and promotional material) which mentions the name of the Account Bank or the rightsBank, powerswithout any liability in so doing, or duties of the Account Bank shall be publicly issued by accept instructions from the Issuer or on its behalf unless (notwithstanding there being a disagreement between the Account Bank shall first have given its express written consent theretoIssuer and the Administrator);
(i) except Except as provided hereunder, and except to the extent required otherwise under Applicable Law, the obligations and duties of the Account Bank are binding only on the Account Bank and are not obligations or duties of any Citi Organisation; and
(ii) the rights of the Issuer Issuer, the Administrator and/or the Trustee with respect to the Account Bank extend only to the Account Bank and, except to the extent required under Applicable Lawany applicable law, do not extend to any other Citi Organisation; and.
(p) if the Account Bank receives an Instruction which is ambiguous or in the event that the Account Bank in good faith is in doubt as to what action it should take hereunder, the Account Bank shall be entitled to seek clarification from the party providing such Instruction.
(q) with regard to CitiDirect
Citi Direct (i) it consents to the transmission of data and communications through the internet and acknowledges that the internet is not necessarily a secure communications and delivery system, and understands the confidentiality and other risks associated with it. The Each of the Administrator and the Issuer agrees to be bound by any communication validated by the Citibank, N.A. ("Citibank") branch, subsidiary or affiliate providing the service to which such communication relates according to the CitiDirect security procedures applicable to Citi Direct (the "Security Procedures") (as updated from time to time) applicable to the type of communication and consistent with the Issuer's access profile. The Each of the Administrator and the Issuer's ’s use of CitiDirect Citi Direct after receipt of updated CitiDirect security procedures Security Procedures (including, but not limited to, the posting of such revised CitiDirect security procedures Security Procedures on the CitiDirect Internet Citi Direct internet site) constitutes acceptance of such updated CitiDirect security procedures Security Procedures and such updated CitiDirect security procedures Security Procedures shall replace the prior agreed upon CitiDirect security proceduresSecurity Procedures; and
(ii) it will designate representatives as its security managers. These security managers shall have the responsibility for managing and administering the security of the transmission and delivery of communication and for appointing users (including any Users employed by entities other than the Customer ("Users")), including (i) creating, deleting or modifying User profiles, (ii) building access profiles which define the applications available to Users in that group, (iii) enabling and disabling User identification, (iv) product set-up and site/flow control (i.e. identifying levels of transaction authorization), (v) allocation of dynamic password cards or other access cards or passwords for system access, (vi) notification to Citibank if there is any reason to suspect security has been compromised, (vii) creating, deleting or modifying customer-managed libraries, and (viii) where relevant, completing, amending and/or supplementing the relevant customer implementation forms, and such other customer implementation forms as may be deemed reasonably necessary by Citibank from time to time in connection with the provision of services and/or products to the Issuer. Any two security managers, acting in concert, are authorized to give instructions or confirmations to Citibank (and Citibank is authorized to accept such instructions and confirmations) in relation to any activity mentioned above or in connection with facilitating Customer's communication via the Internet.
6.2 The Account Bank will treat information relating to or provided by the Issuer as confidential. Unless consent is prohibited by law, the Issuer consents to the processing, transfer and disclosure by the Account Bank, where necessary (and subject to compliance with Applicable Law), of any information relating to or provided by the Issuer (including banking secrets, personal data and other confidential information) to any Authorised Recipients, for confidential use in connection with this Agreement. The Account Bank shall ensure that each Authorised Recipient to which it provides such confidential information is aware that such information is confidential and should be treated accordingly.
6.3 An Authorised Recipient may transfer and disclose any such information as is required or requested by any court, legal process, Applicable Law or Authority, including an auditor of the Issuer and including any payer or payee as required by Applicable Law, and may use (and its performance will be subject to the rules of) any communications, clearing or payment systems, intermediary bank or other system.
6.4 For the purposes of the call-back arrangements, the Issuer and the Cash Manager:
(a) shall provide the list of Authorised Representatives and Call-back Contacts;
(b) undertakes to give the Account Bank not less than five (5) Business Days' notice in writing in accordance with Clause 12 of this Agreement and Schedule 3 of the Incorporated Terms Memorandum, signed by an Authorised Representative (or as otherwise agreed with the Account Bank), of any amendment to its Authorised Representatives or Call-back Contacts giving the details specified in the relevant part of Schedule 1 (Form of Account Bank Mandate). Any such amendment shall take effect upon the expiry of the above notice period (or such shorter period as agreed between the Issuer and the Account Bank from time to time;
(c) acknowledges and accepts the risks associated with any appointment of the same person(s) to act both as Authorised Representative and Call-back Contacts; and
(d) acknowledges and agrees that the Account Bank may rely upon the confirmations or responses of anyone purporting to be a Call-back Contact in answering the telephone call back of the Account Bank.
Appears in 1 contract
Samples: Administration Agreement
