Common use of Limitations of the Bank’s Liability and Obligations to Customer Clause in Contracts

Limitations of the Bank’s Liability and Obligations to Customer. In the performance of the services required by this Agreement, the Bank shall be entitled to rely solely on the information, representations and warranties provided by Customer pursuant to this Agreement. Except as otherwise specifically provided by law, the Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only in the event of loss due to its gross negligence or willful misconduct in performing those services. In no event shall the Bank have any liability for any consequential, special, incidental, punitive or indirect loss or damage which Customer may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by the Bank and regardless of the legal or equitable theory of liability Customer may assert. The Bank is not liable for any damages Customer may incur due to a delay in Oxygen providing the Bank with any notices or information Oxygen receives from Customer. Without limiting the foregoing, the Bank shall not be liable for and the Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communications facilities, equipment failure, war, act of terror, emergency conditions, or other conditions beyond Bank’s control. To the extent allowed by law, the Bank shall not be liable for and shall be excused from failing to process or any delay in processing a transfer of funds (i) if, in the Bank’s sole discretion, processing a transfer would violate or contribute to the violation of any law, regulation or regulatory requirement; or (ii) if processing a transfer, in the Bank’s sole discretion, would cause it to engage in an unsafe and unsound practice. Customer agrees to indemnify and hold harmless the Bank and Oxygen and to promptly pay on demand, any and all losses arising from actions taken by the Bank or Oxygen in accordance with this Agreement. These indemnifications shall apply, without limitation, to any losses arising from the dishonor of any check or other debit item. Without limiting the generality of the foregoing, in no event will the Bank’s liability for any loss, cost, or liability arising from the Bank’s gross negligence or willful misconduct exceed the average monthly charge for the Account-related services in question for the month preceding the date or loss, except as otherwise required by UCC Article 4A. Any claim, action or proceeding by Customer to enforce the terms of this Agreement or to recover for any Account-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs. Customer agrees to cooperate with the Bank in any loss recovery efforts the Bank undertakes to reduce any loss or liability that arises in connection with the Account. Customer acknowledges any Bank fees have been established in contemplation of: (a) these limitations on the Bank’s liability; (b) Customer’s agreement to review statements, confirmations, and notices promptly and to notify Bank immediately of any discrepancies or problems; and (c) Customer’s agreement to assist the Bank in any loss recovery efforts.