Common use of Bank’s Liability Clause in Contracts

Bank’s Liability. We will not be liable to you for any of the following: (i) any damages, costs or other consequences caused by or related to our actions that are based on information or instructions that you provide to us; (ii) any unauthorized actions initiated or caused by you or your employees, representatives, third party service providers or agents; (iii) the failure of third parties or vendors to perform satisfactorily, other than persons to whom we have delegated the performance of specific obligations provided for in these Terms; (iv) failure or errors on the part of ISPs, telecommunications providers or any other party’s own internal systems; or (v) Customer’s acts or omissions (including without limitation, the amount, accuracy, timeliness of transmittal or authorization of any entry received from Customer) or those of any other person, including without limitation any Federal Reserve Bank, ACH Operator or transmission or communications facility, any receiver or RDFI (including, without limitation, the return of any entry by such receiver or RDFI), and no such person shall be deemed Bank’s agent. Whether for breach, negligence, or infringement by us, in tort or otherwise, any losses arising during any twelve (12) month period shall be limited to the average monthly charge for the Services in question for the six (6) month period preceding the date of loss. We shall not be responsible, under any circumstances, for any loss of goodwill or for any special, consequential or indirect damages that you incur in connection with these Terms or the Services. Except as otherwise specifically provided in these Terms, in no event will either party be liable to the other for any consequential, indirect, incidental, special, exemplary or punitive damages, including without limitation, any loss of use or loss of business, revenue, profits, opportunity or goodwill, under any theory of tort, contract, indemnity, warranty, strict liability or negligence, even if such party has been advised of, or should have known of the possibility of, such damages. You agree that the amount of any claim you have against us in connection with any account or transaction is subject to reduction on the basis of your negligence or failure to use reasonable care, the extent to which damages could not be avoided by your use of ordinary care and reasonable commercial standards, and your failure to comply with your notice and reporting requirements under these Terms. You agree to pursue your rights under any insurance policy you maintain in connection with any loss and to provide us with coverage information. You further agree that our liability will be reduced by the amount of any insurance proceeds you receive or are entitled to receive. If we reimburse you for a loss that is covered by insurance, you agree to assign us your rights under the insurance. Any claim, action or proceeding by you to enforce the terms of these Terms or to recover for any loss must be commenced within one (1) year from the date that the event giving rise to the claim, action or proceeding first occurs. Unless prohibited by law, you agree to reimburse us for any liability, losses and expenses we may incur in connection with your account or Service(s). Bank shall be excused from failing to transmit or delay in transmitting an entry if such transmittal would result in Bank’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or which in Bank’s reasonable judgment otherwise would violate any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any U.S. governmental regulatory authority. In the performance of the services required by these Terms, Bank shall be entitled to rely solely on the information, representations, and warranties provided by Customer pursuant to these Terms, and shall not be responsible for the accuracy or completeness thereof. Bank shall be responsible only for performing the services expressly provided for in these Terms.