Common use of Bank’s Liability Clause in Contracts

Bank’s Liability. Bank will not be liable to Customer for any of the following, unless liability or loss is a result of Bank’s breach of these Terms and Conditions or the gross negligence or willful misconduct of Bank or its employees or agents: (i) any damages, costs or other consequences caused by or related to Bank’s actions that are based on information or instructions that Customer provides to Bank; (ii) any unauthorized actions initiated or caused by Customer or its employees or agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom Bank has delegated the performance of specific obligations provided in these Terms and Conditions; (iv) any refusal of a Payor Bank to pay an Electronic Item for any reason (other than the breach of contract, negligence or willful misconduct of Bank), including without limitation that the Electronic Item was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) any other party’s lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) any of the matters described in Section 7 above. Bank’s liability for errors or omissions with respect to the data transmitted or printed by Bank will be limited to correcting the errors or omissions. Correction will be limited to presenting Electronic Items to the Payor Bank. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, BANK’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS RELATING TO THESE TERMS AND CONDITIONS, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, AND ARISING DURING ANY TWELVE MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR SUCH TWELVE MONTH PERIOD. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOOD WILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BANK AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE A BARGAINED FOR ALLOCATION OF RISK AND LIABILITY, AND AGREE TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT ENTER INTO THESE TERMS AND CONDITIONS WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.

Bank’s Liability. a. The Bank will not be liable to Customer you for any of the following, unless liability or loss is a result of Bank’s breach of these Terms and Conditions or the gross negligence or willful misconduct of Bank or its employees or agents: (i1) any damages, costs or other consequences caused by or related to the Bank’s actions that are based on information or instructions that Customer provides you provide to the Bank; (ii2) any unauthorized actions initiated or caused by Customer you or its your employees or agents; (iii3) the failure of third persons or vendors to perform satisfactorily, other than persons to whom the Bank has delegated the performance of specific obligations provided in these Terms and Conditionsthis Schedule E to this CMTS Agreement; (iv4) any refusal of a Payor Bank Financial Institution to pay an Electronic Image Exchange Item or Substitute Check for any reason (other than the breach of contract, gross negligence or willful misconduct of the Bank), including without limitation limitation, that the Electronic Original Check, Image Exchange Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v5) your or any other party’s lack of access to the Internet or inability to transmit or receive data; (vi6) failures or errors on the part of Internet service Office Deposit Service providers, telecommunications providers or any other party’s own internal systems, or (vii7) any of if you do not follow or comply with the matters described representations or warranties set forth above in Section 7 above. 10 of this Schedule E to this CMTS Agreement b. The Bank’s liability for errors or omissions with respect to the data transmitted or printed by the Bank inconnection with this Schedule E tothis CMTSAgreement will be limited to correcting the errors or omissions. Correction will be limited to presenting Electronic reprocessing, reprinting and/or representing the Image Exchange Items or Substitute Checks to the Payor Financial Institution. c. Notwithstanding anything to thecontrary in this Schedule Etothis CMTSAgreement, the Bank’s aggregate liability for claims related to this Schedule E to this CMTS Agreement, whether for breach, negligence, infringement, in tort or otherwise, arising during any 12 month period shall be limited to an amount equal to the amount of fees paid by you toBank under this ScheduleE to this CMTSAgreement for such 12 month period. d. Except as otherwise specifically provided in this Schedule E to this CMTSAgreement, 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 good will, under any theory of tort,contract, indemnity, warranty, strict liability or negligence, even if such party has been advised or should have known of the possibility of such damages. e. You and the Bank acknowledge and agree that the limitations of liability in this Section 15 of this Schedule E to this CMTS Agreement are a bargained for allocation of risk and liability, and agree to respect such allocation of risk and liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, BANK’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS RELATING TO THESE TERMS AND CONDITIONS, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, AND ARISING DURING ANY TWELVE MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR SUCH TWELVE MONTH PERIOD. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOOD WILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BANK AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE A BARGAINED FOR ALLOCATION OF RISK AND LIABILITY, AND AGREE TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT ENTER INTO THESE TERMS AND CONDITIONS WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTIONEach party agrees and acknowledges that the other party would not enter intothis Schedule E to this CMTS Agreement without the limitations of liability set forth in this Section 15 of this Schedule E to this CMTS Agreement.

Bank’s Liability. In the performance of the Services required by the Agreement, Bank shall be entitled to rely solely on the information; representations and warranties provided by Third-Party Sender pursuant to the Agreement and shall not be responsible for the accuracy or completeness of such information. Except as otherwise specifically provided by law, Bank shall be responsible only for performing the Services expressly provided for in the Agreement and shall be liable only in the event of loss due to its gross negligence or willful misconduct in performing those Services. Bank not be liable for the Third-Party Sender’s acts or omissions, or those of any other person, including, without limitation, a Client. In no event shall Bank have any liability for any consequential, special, incidental, punitive or indirect damages Third-Party Sender may incur or suffer in connection with the Agreement whether or not the likelihood of such damages was known or contemplated by Bank and regardless of the legal or equitable theory of liability Third-Party Sender may assert, including without limitation loss or damage from subsequent wrongful dishonor resulting from Bank’s acts or omission pursuant to the Agreement. Bank shall not be liable for any damages or other losses to Third-Party Sender due to claims made by any of its Clients in connection with any arrangement or agreement between Client and Third-Party Sender under which the Third-Party Sender transmits Entries or Files pursuant to the Agreement. Third-Party Sender agrees to indemnify and hold harmless Bank against any loss, liability or expense (including attorneys’ fees and expenses) resulting from or arising out of any claim if any Client that Bank is responsible for any act or omission of Third-Party Sender or any other person described in this section. If, for any reason, Bank is adjudged liable to Third-Party Sender, it shall only be to the extent that the amount of the damages resulting from such liability arise out of Bank’s gross negligence or willful misconduct and, in such cases, damages will be limited to the amount of the aggregate monthly fees and charges paid by Third- Party Sender for the Services for the immediate three (3) month period prior to the event giving rise to Third-Party Sender’s claim. In no event shall Bank be liable for consequential damages, exemplary damages or lost profits, even if Third-Party Sender advises Bank of the possibility of such damages. The provisions of this Section shall survive the termination of the Agreement. Without limiting the generality of the foregoing, Bank will not be liable to Customer for any of Third-Party Sender in the following, unless liability or loss is a result following situations: a. If through no fault of Bank, Third-Party Sender or Account Owner on a Personal Account does not have enough available money in Account from which a payment or transaction is to be made, or if Account has been closed or is not in good standing, or if Bank reversed a payment or transaction because of insufficient funds, or if any payment or transaction would go over the credit limit of any Account; b. If the equipment of Third-Party Sender or Bank is not working properly and the breakdown should have been apparent to Third-Party Sender when Third-Party Sender attempted to conduct the transaction; c. If Third-Party Sender has not given Bank complete, correct or current Account numbers or other identifying information for Bank to properly credit Account or otherwise complete the transaction, or if Third-Party Sender does not properly follow Bank’s breach instructions, or if Third-Party Sender provides Bank with wrong or inaccurate information, or fails to correct or tell Bank about any inaccuracy of these Terms which Third-Party Sender is aware; d. If Third-Party Sender does not instruct Bank soon enough for Third-Party Sender’s payment or transaction to be received and Conditions credited by the time its due; e. If the money in Account from which a payment or transaction is to be made is subject to legal process or other claims restrict the gross negligence transaction, or willful misconduct if circumstances or persons beyond Bank’s control prevent, delay, intercept or alter the transaction, despite reasonable precautions that Bank has taken; f. If Third-Party Sender has an overdraft line and the transfer would go over the credit limit; g. If Bank has a hold on Account; h. If Account is closed or has been frozen; i. If Third-Party Sender, anyone authorized by Third-Party Sender, or anyone using Login Credentials, commits any fraud or violates any law or regulation; j. If Bank takes any action including suspension of Services, or refrains from taking action, if Bank has a reasonable basis for believing an unauthorized use of Third-Party Sender’s Login Credentials has occurred or may be occurring; k. If Third-Party Sender is in default under the Agreement or if Bank or its employees or agents: (i) any damagesThird- Party Sender terminate the Agreement; or, l. If the failure was caused by a fire, costs or other consequences caused catastrophe, or by an electrical or related to computer failure or by other causes beyond Bank’s actions that are based on information control, or instructions that Customer provides to Bank; (ii) any unauthorized actions initiated or caused by Customer or its employees or agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom if Bank has delegated a reason to believe the performance of specific obligations provided in these Terms and Conditions; (iv) any refusal of a Payor Bank transaction requested is unauthorized. The above listing is not meant to pay an Electronic Item for any reason (other than the breach of contract, negligence or willful misconduct of Bank), including without limitation that the Electronic Item was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) any other party’s lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) any of the matters described in Section 7 above. Bank’s liability for errors or omissions with respect to the data transmitted or printed by Bank will be limited to correcting the errors or omissions. Correction will be limited to presenting Electronic Items to the Payor Bank. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, BANK’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS RELATING TO THESE TERMS AND CONDITIONS, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, AND ARISING DURING ANY TWELVE MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR SUCH TWELVE MONTH PERIOD. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOOD WILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BANK AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE A BARGAINED FOR ALLOCATION OF RISK AND LIABILITY, AND AGREE TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT ENTER INTO THESE TERMS AND CONDITIONS WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTIONexhaustive.

Bank’s Liability. The Bank will not be liable to Customer you for any of the following, unless liability or loss is a result of Bank’s breach of these Terms and Conditions or the gross negligence or willful misconduct of Bank or its employees or agents: (i) any damages, costs or other consequences caused by or related to Bank’s actions that are based on information or instructions that Customer provides you provide to the Bank; (ii) any unauthorized actions initiated or caused by Customer or its employees or agentsyou; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom the Bank has delegated the performance of specific obligations provided in these Terms and Conditions; (iv) any refusal of a Payor Bank payor bank to pay an Electronic Item electronic item for any reason (other than the breach of contract, negligence or willful misconduct of Bank), including without limitation that the Electronic Item electronic item was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) any other party’s lack of access to the Internet internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) any of the matters described in Section 7 8 and 11 above. Bank’s liability for errors or omissions with respect to the data transmitted or printed by the Bank will be limited to correcting the errors or omissions. Correction will be limited to presenting Electronic Items electronic items to the Payor Bankpayor bank. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, BANK’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS RELATING TO THESE TERMS AND CONDITIONS, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE, AND ARISING DURING ANY TWELVE MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR SUCH TWELVE MONTH PERIOD. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOSS OF ANY OPPORTUNITY OR GOOD WILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BANK AND CUSTOMER ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE A BARGAINED FOR ALLOCATION OF RISK AND LIABILITY, AND AGREE TO RESPECT SUCH ALLOCATION OF RISK AND LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT ENTER INTO THESE TERMS AND CONDITIONS WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.