SecureLink

Agreement and Disclosure for

Cash Management Services and Business Online Banking

This SecureLink Agreement and Disclosure for Cash Management Services and Business Online Banking (“Agreement”), which includes the Security Pacific Bank SecureLink Business Online Banking Customer Enrollment Form (“Enrollment Form”) and the Security Pacific Bank SecureLink Cash Management Services and Business Online Banking Employee Set Up Form (“Employee Set Up Form”) SecureLink, is a contract which establishes the rules which cover your electronic access to your accounts using the Bank’s SecureLink electronic banking system (the "System").  By signing an Authorization Form or using the System, you accept all the terms and conditions of this Agreement.  Please read it carefully and keep a copy for your records.

USE OF THE SYSTEM

A.                 Definitions.  As used in this Agreement, the words "we", "our", "us", "Bank" and other similar terms mean Security Pacific Bank.  "You", "your" and other similar terms refer to the account holder named in the Enrollment Form and anyone else authorized by that account holder to exercise control over the account holder's funds through or otherwise use the System as indicated on the Employee Set Up Form.  "Accounts" means your accounts at the Bank that are accessed through the System. "Transfers" means transfers to or from your Accounts using the System and includes “Payment Orders", "Bill Pays", and “Automated Clearing House (ACH) Entries”  “Payment Orders” are transfers from your Accounts using Fedwire or another large dollar payment system.  "Bill Pays" are transfers from your Account using the System to make payments to pay your bills.  “ACH Entries” are Electronic Funds Transfers and may include collection of membership dues, direct deposit of employee payroll credits or tax payments.  "Services" means the services provided pursuant to this Agreement.  Our "Business days" are Monday through Friday (federal holidays excluded). All times are local time of Bank.

B.                 Access.  To use the System, you must have at least one checking account at the Bank, access to Internet service and an e-mail address (HotBot and other intermediary e-mail addresses may not be used).  You are responsible for the set-up and maintenance of your business computer and modem.  You agree that we are not responsible for any errors or failures from any malfunction of your computer or any virus or other computer problem related to the use of the Services.  You agree to use the Services solely for business purposes and not to use the System for Transfers to or from any account of yours at our Bank established for personal, family or household purposes.

C.                Enrollment and Accounts.  You must complete and return an Enrollment Form to us for our approval.  You authorize us to obtain information about you from others (including credit reporting agencies) as part of our review of your Enrollment Form and from time to time thereafter.  You agree to provide us with such information as we request, from time to time. 

If you are approved, we will send you confirmation of our acceptance of your enrollment and your assigned Access ID, temporary password and token (when applicable).  These will be sent by mail or e-mail to the person shown as the Senior Administrator on your Enrollment Form.  Persons executing the Enrollment Form must be a corporate officer or other person who has the authority to enter into an agreement with the Bank.  Persons executing the Enrollment Form are authorized to act as Senior Administrators, along with any person named as the Senior Administrator or Administrator on the Employee Set Up Form.  Persons executing the Enrollment Form may also assign to one or more other persons the role of Senior Administrator or Administrator.  The System can be used to access only the Accounts which you have designated for access by the System in your Enrollment Form.  You can add or delete any of your Accounts or Services, just notify us in writing by letter, e-mail or fax.  It may be necessary for us to obtain other signed agreements pertaining to the additional service you are requesting.  These additional services will also be governed by this agreement.  Access restrictions to your Accounts through the System will initially be based on information you provide in your Enrollment Form and other related System documents, but once the System is operational the Senior Administrator will control access levels and any Service restrictions (see below regarding the Senior Administrator).

D.                System Services.  You may use the Services to:

•           View balance information, account history, paid checks and deposit Account statements.  (Balance and
             activity information that you obtain through the System are as of the end of the previous Business day
             and memo posted transaction activity for the business day of inquiry.  All balance information is
             provisional and may be adjusted by us to reflect returns, errors or other adjustments to Account
             balances.);

•           Transfer funds between eligible Accounts at Bank;

•           Make on-us loan payments;

•           Draw from credit balance on your eligible commercial line of credit in order to transfer funds to an Account
             at Bank;

•           Make stop payment requests (on checks written by you, but not online Bill Payment checks, if you have
             that Service);

•           Use Bill Pay (You will need to enter into a separate SecureLink Online Bill Pay Agreement if you wish to use
             the System to initiate Bill Pays and the SecureLink Online Bill Pay Agreement will govern the terms and
             conditions of Bill Pays except where inconsistent with this Agreement.);

•           Wire Transfers (You will need to enter into a separate Funds Transfer Agreement if you wish to use the
             System to initiate Payment Orders, and the Funds Transfer Agreement will govern the terms and
             conditions of Payment Orders except where inconsistent with this Agreement.);

•           Initiate Automated Clearing House (“ACH”) debits and credits (You will need to enter into a separate
            Automated Clearing House Origination Services Agreement if you wish to use the System to initiate ACH
            Entries and the Automated Clearing House Origination Services Agreement will govern the terms and
            conditions of ACH origination except where inconsistent with this Agreement.);

•           Generate Federal Tax Payments (requires prior enrollment with IRS) through EFTPS; and

•           Generate California Tax Payments.

Some of the Services may appear on your screen that you have not been approved for and, therefore will not be available to you.  Also, we may, from time to time and at any time, introduce new services.  We shall update this Agreement to notify you of the existence of these new services.  By using those services if and when they become available, you agree to be bound by the terms and conditions in this Agreement and any updates thereto.

E.                 Hours of Access.  You can use the System seven days a week, twenty-four hours a day, although some or all Services may not be available occasionally due to emergency or scheduled System maintenance.  We will use reasonable efforts to post notice of any extended periods of non-availability on the System website.

F.                 Your Password; Codes.  For security purposes, you are required to change your temporary password upon you initial login to the System.  You determine what password you will use and the identity of your password is not communicated to us.  You agree that we are authorized to act on instructions received under your password.  You accept responsibility for the confidentiality and security of your password and agree to change your password regularly.  The Bank has no obligation to verify that you have used a reasonable level of protection or to verify that your password is changed at reasonable intervals.  Upon three unsuccessful attempts to use your password, your access to the System will be revoked.  To re-establish your authorization to use the System, you must contact us to have your password reset or to obtain a new temporary password.

We recommend that you create a password, minimum of six characters and utilize both upper case alpha and numeric characters.  Your password should not be associated with any commonly known personal identification, such as social security numbers, address, date of birth or names of children, or found in any dictionary and should be memorized rather than written down.   

You agree and acknowledge that Access ID and Password are authentication tools or methods used by us to verify your identity and that we may require you to use additional authentication tools or methods at any time and from time to time.  Such additional authentication tools or methods, include, but are not limited to, secret codes shared only between you and us, authentication image along with authentication pass phrase, challenge questions and answers, and security token.  You may request any of the additional security procedures listed here, even if we do not require them for your particular use, by calling us at 877-772-6611 or writing to us at 845 N Euclid Avenue, Ontario, CA 91762.  You further agree that if you do not use our additional authentication tools, if and when they become available, then your access and use of the Services or System may be limited or you may not be able to use Bank’s Services or System.

For purposes of this Agreement, Access ID, Password, security token and any other additional authentication tool or method offered or required by us in order to verify your identity will be referred to, collectively and individually as the “Code” or the “Codes.”

G.                System Administrator.  The System allows the Senior Administrator to designate which Accounts to open to users, who will be added or deleted as a user, what Services will be available to each user and under what (if any) limitations (including what level of activity is appropriate for each Account).  The Senior Administrator may issue Codes that will allow users to access System Services.   The Bank does not control or oversee the Senior Administrator function. You agree that all action taken by the Senior Administrator or any person designated or authorized by the Administrator is authorized by you, and all such persons are your agent for purposes of use of the System or the System Services.

Persons executing the Enrollment Form must be a corporate officer or other person who has the authority to enter into an agreement with the Bank.  Persons executing the Enrollment Form are authorized to act as Senior Administrators, along with any person named as the Senior Administrator or Administrator on the Employee Set Up Form, and you acknowledge that the Bank will not control (and may not even be aware of) changes in the Senior Administrator.

It is your responsibility to understand the security capabilities built into the System and to decide which of your Accounts to link to one or more Codes and what level of activity is appropriate for each Account linked to one or more Codes, keeping in mind the importance of separation of duties as an important way of protecting your company.  Error, negligence or misfeasance by the System Administrator or by any user of the System can cause significant losses for which you agree you and not Bank will be responsible; you agree to maintain insurance in appropriate form and amount to protect you against this risk.

Unless your Administrator configures access restrictions otherwise, all persons with access to the System will have the ability to initiate funds Transfers. 

H.                Your are responsible for Transfers, Requests and Other Communications.  You may use the System to initiate a request for a draw from a commercial line of credit, initiate a Request for a Transfer to or from any Account, including Payment Orders, Bill Pays, or Automated Clearing House (ACH) Entries (collectively, a “Request”).  For purposes of this Agreement, a “Request” includes any request for cancellation or amendment of a Transfer order.  It also includes other communications to us in your name using the Services (for example, a change in address).

The Codes are security procedures.  In addition to the Codes as security procedures, you may choose additional security procedures.  Your options are set forth in Section F above.  You agree that we may use the security procedures to verify the authenticity of Requests that are received by us and to prevent unauthorized Transfers.  You agree that the security procedures are intended to verify authenticity and not to detect error.

If a Request is received by us and purports to have been transmitted or authorized by you, it will be deemed effective as your Request and you will be bound by the Request, even if the Request was not authorized by you, provided we acted in compliance with the security procedure chosen by you. For example, you will be obligated to pay the amount of the Request, even if a Request was not authorized by you, if the authenticity of the Request has been verified using the security procedures.  You will also be bound by a Request that is a Request initiated by you or anyone authorized by you (including your Administrator and any authorized user), even if we did not verify its authenticity using the security procedures and even if the security procedures would have prevented the transaction or error.

You acknowledge and agree that if a Request describes the beneficiary or beneficiary's bank inconsistently by name and account number, execution of the Transfer may occur on the basis of the account number, even if it identifies a person different from the named beneficiary or bank, and that your obligation to pay to us the amount of the Transfer is not excused in such circumstances.  

I.                    Authorization Controls for Services.  You are responsible for controlling access to the Services and for any limitations placed by you on the Services that may be used by other persons. The fact that we are or may be made aware of, or could have discovered, any limitation on access to a Service does not make us obligated to enforce or attempt to enforce any limitation.  You understand that persons may utilize System Services (including inquiries, transfer Requests and Account verification) without regard to any restrictions otherwise applicable to an Account.  For example, if a person directs transfers from a given Account, that person can initiate the transfers whether or not he has been authorized to do so according to the signature card applicable to the Account.  If a person has signing authority over Account "A" but not over Account "B," but has access to the System Services, he or she could transfer funds from "B" to "A" and then withdraw funds from "A."  You agree that any arrangements with us to require one or more authorized signatures for transactions involving your Accounts do not apply to or limit our obligation to act upon transfer Requests received through the System.

J.                  Compliance with Security Procedures/Protection of the Services.  You assume all risks associated with disclosure or discovery of any Code, Codes or security procedure to or by your employees or others. You agree to limit disclosures of Code, Codes and security procedures to those who you authorize or who have a specific need to know and who have been authorized by you to use the System Services you desire.  You will establish procedures to protect the confidentiality of all information relating to the Services, including all Code, Codes and security procedures, and will promptly notify us if you know or suspect that a Code or other security procedure is stolen, compromised, or misused.  You will require users to create new passwords at reasonably frequent periods, based on your assessment of the security requirements appropriate for the System Services utilized by you.  You agree to promptly remove a user's passwords or Codes from the System whenever the user leaves your employ or otherwise is no longer authorized to use the System on your behalf.

K.                 Your Obligation to Review Security Procedures.  You will review and implement all security procedures available in connection with the System or Services.  We recommend that you establish two levels of authority to request and transmit monetary transfers to the Bank.  You agree to consider the size, type and frequency of Requests or other Services you intend.  You will consider the risks presented by the possibility of unauthorized access to these Services and your obligation on Requests, including those that are unauthorized.  After this review, you will notify us if your use of the System or Services would necessitate or be better served by a level of security that exceeds that offered by the security procedures found in the System.  If you fail so to notify us, you acknowledge and agree that the security aspects of the System or Services are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use.

L.                  Privacy.  Data transferred via the System is encrypted in an effort to provide transmission privacy. Notwithstanding our efforts to insure that the System is secure against intrusion, you acknowledge that the Internet is inherently insecure and that all data transfers (including Requests and electronic mail) occur openly on the Internet.  This means that the data transfers potentially can be monitored and read by others.  We cannot and do not warrant that all data transfers utilizing the System will not be monitored or read by others. We will not send, and strongly suggest that you do not send, any confidential information unless using the electronic communication options provided in our customer Service section.      

M.                If the Services allow you to make an advance from the available credit balance on your commercial line of credit with us, excluding all transactions that include Letters of Credit, then you may only advance from the available credit balance on your commercial line of credit in order to make a deposit to your Account held with us and when you request the advance using SecureLink.  You agree that every draw from the available credit balance on your commercial line of credit via the Service or System is subject to all the terms and conditions of your applicable loan agreement, which includes but is not limited to, the Commercial Line of Credit Agreement, which may include but is not limited to, any and all promissory notes or related loan agreements.

N.                Stop Payments.  You may order, through the system, stop payments on any of your checks, which have not yet been paid by Bank.  You must be able to provide the correct account number, correct check number and exact amount of the check.  Any loss suffered by you due to your failure to accurately identify the check in the stop payment request will be the responsibility of you and not of Bank.

No stop payment order will be effective against a check that has paid prior to the time that the Bank has both received the order and had a reasonable period of time to respond to the order. You understand that you will and Bank will not be responsible for determining whether a check has or has not been paid.

At the time you submit a stop payment order to Bank through the System, you agree to access the appropriate account and data bases through the System and determine whether the check to which the stop payment order relates has or has not already been paid. You understand that the information available through the System regarding account status, and specifically whether individual checks have or have not been paid, is updated only once in each 24 hour period. As a result, you understand that the information available via the System regarding the status of individual checks on any given Business day will be limited to transactions that were processed on the previous Business day.

You acknowledge that the information regarding the status of individual checks will not include transactions - including cash payments – on a check that occur on the same Business day as the date of receipt of the stop payment order. You acknowledge that a transaction search through the System will not necessarily reveal whether a check has been paid until the Business day after the Business day on which the stop payment order is received by the Bank. Any loss suffered by you due to your decision to issue a new or replacement check, or to take any other action, based on information in the System prior to the next Business day after the Business day on which the stop payment order has been received by Bank will be the responsibility of you and not of the Bank.

Bank may, but is not obligated to, notify you if Bank determines through the process of updating the account status on the System that the check was paid on the day the stop payment order was received by Bank.        

Stop payment orders remain in effect for six months.  You may cancel stop payment orders through the "Message" feature of the System, or by writing Bank. Stop payment orders are automatically canceled when the account on which the check is drawn is closed or at the end of the term of the order (unless renewed by you).  Under certain circumstances, a holder of the check may be entitled to enforce payment against you even when a stop payment order is in effect.

The System may not be used to stop payment on any automatic entry, such as automatic monthly drafts or automated clearing house (ACH) debit or credit entries, and Bank may ignore any attempted stop payment order relating to such items if the order is transmitted through the System.

O.                Federal Tax Payments.  This Service requires that you execute our  Automated Clearing House Origination Services Agreement prior to using the System to generate federal tax payments.  You agree and acknowledge that the terms and conditions of this Agreement and the Automated Clearing House Origination Services Agreement govern your use of the Service to generate federal tax payments.  However, in the event there is an inconsistency between this Agreement and the Automated Clearing House Origination Services Agreement, then the terms of Automated Clearing House Origination Services Agreement shall govern.  You also agree and acknowledge that we have not provided you with any guidance or advice regarding your initiation of federal tax payment entries.  You warrant that you have properly enrolled in the Electronic Federal Tax Payment System (“EFTPS”) on the appropriate form, Form 9779, Business Enrollment Form for EFTPS, and you have selected the ACH Credit option (or other appropriate option) and you have otherwise taken all steps necessary or appropriate to ensure proper processing of ACH Credit Entry tax payments by the taxing authority.  You warrant that all the requirements of the EFTPS system and of your participation in it have been and will continue to be met, including the generation of prenotification entries before the first tax payment is sent.  You further warrant that you will use the CCD format with a TXP Addenda Record as required, and agree that you are not authorized under this Agreement for this particular Service to initiate entries other than EFTPS credit entries or to initiate any entries in any format other than CCD with a TXP Addenda Record.  Finally, you warrant that you will conform all entries to the format, content and specifications contained in the Rules, as defined in the Automated Clearing House (ACH) Origination Services Agreement, for EFTPS entries.  We may from time to time establish exposure limits on entries by you, including limits across multiple time frames, and you will comply with any such limitations upon notice from us.

P.                 State Tax Payments.  This Service requires that you execute our  Automated Clearing House Origination Services Agreement prior to using the System to generate state tax payments.  You agree and acknowledge that the terms and conditions of this Agreement and the Automated Clearing House Origination Services Agreement govern your use of the Service to generate state tax payments.  However, in the event there is an inconsistency between this Agreement and the Automated Clearing House Origination Services Agreement, then the terms of the Automated Clearing House Origination Services Agreement shall govern.  You also agree and acknowledge that we have not provided you with any guidance or advice regarding your initiation of state tax payment entries.  You warrant that you have properly enrolled in a state taxing authority program to pay your state taxes.  You also warrant that you have selected the ACH Credit Option (or other appropriate option) and you have otherwise taken all steps necessary or appropriate to ensure proper processing of ACH Credit Entry tax payments by the state taxing authority.  Finally, you warrant that you will conform all entries to the format, content and specifications contained in the Rules, as defined in the Automated Clearing House Origination Services Agreement, for state tax entries.

Q.                Fees and Charges.  You agree to pay our fees and charges for your use of System or Services, as they are set by us from time to time. You agree that fees and charges may be deducted from any of the Accounts maintained by you at Bank or any other account of yours. You agree to pay any additional charges for Bank services you request which are not covered by this Agreement. You are also responsible for telephone, internet service and any other third party fees you incur in connection with your use of the System.  Bank may modify any fees or charges at any time and from time to time. See our fee schedule for details. We will provide you with notice of any changed fees or charges, normally 30 days in advance of the effective date of the change.

R.                Processing Transfers, Draw Requests and On-Us Loan Payments.  Payment Orders received by us after 5 pm, or on a non-Business day, may be treated by us as if received on the next succeeding Business day.  Transfers between your Accounts, draw requests from a commercial line of credit to make a deposit into an Account, or on-us loan payments requests received by us before 5:00 p.m. on a Business day are posted to your Account or loan account the same day, but if received by us after 5:00 p.m. on a Business day or on a non-Business day, the Transfer, draw request or on-us loan payment request may be posted on the next succeeding Business day. 

S.                 Overdrafts (Order of Payments, Transfers, and other Withdrawals).  If your Account has insufficient funds to perform all Services you have requested for a given Business day, then we may process or refuse to process your Requests and any other checks, items, debits or credits or other transactions on an Account in any order we may choose at our sole discretion.  We may seek the return of any Payment Orders, and may reverse any other Transfers, at any time if doing so may reduce any losses or damages we may otherwise return, and you authorize us to do so in your name or in our name.

T.                  Limits on System Transactions; Security Interest in Accounts. Federal regulations limit the number of certain types of transfers from our Money Market or Business Savings Accounts. You are limited to six pre-authorized electronic fund transfers and telephone transfers (including System transactions, checks and point-of-sale transactions) per month.  Of these six transactions, you are limited to no more than three transactions per month by check, draft or similar order.  Each fund transfer or payment through the System from your Savings or Money Market Account is counted as one of the transfers you are permitted each month from that Account.  Demand deposit accounts are not subject to these transfer limitations. 

All Transfers between Accounts or to third parties are subject to there being sufficient available funds to cover the amount of the Request in the affected Account.   We may condition processing any Transfer or Request on availability of sufficient funds to cover the transaction.  You agree to pay us in immediately available funds any amounts due to us as a result of our processing any Request.  If we allow Transfers to be processed against insufficient funds, we are not obligated to continue that practice.  We may from time to time impose lower limits on the amount of any Transfer, or require funding in advance of actual processing.  We will communicate these limits to you if they are imposed.   

You grant us a security interest in all Accounts or other deposits of yours at the Bank, and in all funds in such Accounts or other deposits, to secure your obligations to us under this Agreement.  This security interest will survive termination of this Agreement.  We may hold any funds on deposit with us by you after termination of this Agreement for up to 90 days following the expiration of any return or chargeback rights regarding any Request or ACH entry processed by us under this Agreement or, if later, until any other claims to such funds have expired.   

U.                Disclosure of Account Information and Transfers.  You understand that information about your Accounts or the Transfers you make may be disclosed to others.

V.                 Periodic Statements.  You will get a monthly Account statement.  It will not be a separate statement for banking transactions you make using the System.  Transfers to and from your Accounts using the System will appear on the respective periodic statements for your Accounts.

W.               Change in Terms.  We may change any term of this Agreement at any time.  We will notify you of the change in terms either in writing or electronically.  Your continued use of any or all of the System Services indicates your acceptance of the change in terms.  We reserve the right to waive, reduce or reverse charges or fees in individual situations.  You acknowledge and agree that changes to fees applicable to specific Accounts are governed by the applicable deposit agreements and disclosures.

X.                 Your Right to Terminate.  You may cancel your use of the System or Services at any time by providing us with written notice.  Your access to the System will be suspended within 3 Business days of our receipt of your instructions to cancel the Service.  You will remain responsible for all transactions that occur prior to termination, whether termination by you or by us, and for any fees and charges incurred prior to the date of cancellation.

Y.                 Our Right to Terminate.  You agree that we can terminate or limit your access to the System Services for any of the following reasons:

1.                 Without prior notice, if you have insufficient funds in any one of your Accounts or breach any term of this Agreement.  System or Service may be reinstated, in our sole discretion, once sufficient funds are available to cover any fees, pending transfers, and debits; or

2.                 Upon reasonable notice (including immediate), for cause (including the foregoing) or without cause, in our sole discretion.

Z.                 Communications Between Bank and You.  Unless this Agreement provides otherwise, each of us agrees that electronic means may be used to conduct transactions and that electronic records will satisfy any written notice requirements.  You can write to us at Security Pacific Bank, Electronic Banking Services, 845 N Euclid Avenue, Ontario, CA 91762. We may write to you at the most current address shown on the Bank's records.

We may not immediately receive an e-mail you send.  Therefore, you should not rely on e-mail when you need to communicate with us immediately, for example, to report unauthorized transactions on your account.  E-mail may not be used to request account information or to conduct transactions with us, such as loan transfers.  Requests sent to Bank are not considered to be effective until Bank has had a reasonable opportunity to act on the request.   

AA.           Miscellaneous.  This Agreement, together with the Enrollment Form and Employee Set Up Forms, constitutes the entire agreement between you and Bank with respect to the subject matter hereof and there are no understandings or agreements relative hereto which are not fully expressed herein.  The terms and conditions of the deposit agreements and disclosures for each of your Accounts, as well as your other agreements with Bank (such as for loans or other services), continue to apply except as specifically altered by this Agreement.  This Agreement shall be effective when Bank accepts it, as evidenced by the Bank’s release of your Access ID and temporary passwords and security tokens.  You represent and warrant that this Agreement, once duly executed and delivered by both parties, will be a valid agreement enforceable against you in accordance with its terms.  You agree to cooperate with Bank in all manner reasonably requested by Bank, including providing Bank with information about you and executing and delivering to Bank any documents reasonably requested by Bank to further the purposes of this Agreement.

This Agreement is also subject to applicable federal laws and the laws of the State of California (except to the extent this Agreement can and does vary such rules or laws, and excluding California rules governing conflicts of law).  If any provision of this Agreement is found to be unenforceable according to its terms, all remaining provisions will continue in full force and effect.  The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions.  Any waiver (express or implied) by either party of any default or breach of this Agreement must be in writing and shall not constitute a waiver of any other or subsequent default or breach.  You may not assign this Agreement.  This Agreement is binding upon your heirs, successors and assigns.            

Any of your obligations pursuant to this Agreement that by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement.   

BB.           Your Duty to Notify Bank of Error.  If you fail to notify us within 60 days after you receive notice (whether by paper statement or electronic statement) of an unauthorized or erroneous transfer or transaction, you will be precluded from asserting any lack of authorization or any error against us.

CC.          Limitation on Liability.  As a condition precedent to any liability of ours, you must notify us in writing of any alleged negligence or breach of this Agreement by us as promptly as reasonably possible, but in no event later than 5 Business days following the day on which such alleged negligence or breach was, or could reasonably have been, discovered by you.  Our entire liability and your sole remedy under this Agreement, whether or not the claim is in contract or tort, will not exceed an amount of the fees charged by us to you for your use of the Services during the 3-month period preceding the date of the alleged negligence or breach.  Except as set forth herein, we will not be liable or have any responsibility of any kind or any loss or damage thereby incurred by you as a result, directly or indirectly, of any unauthorized person gaining access to, or otherwise making use of, the System. We cannot and do not warrant that the System will operate without errors, or that any or all System or Services will be available and operational at all times.

IN NO EVENT WILL BANK BE LIABLE FOR SPECIAL, GENERAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SIMILAR DAMAGES, EVEN IF BANK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  BANK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY PATENT OR OTHER PROPRIETARY RIGHTS.  THIS PARAGRAPH WILL SURVIVE THE TERMINATION OF THIS AGREEMENT BY EITHER PARTY, AND ALSO LIMITS THE LIABILITY OF ANY AGENT, EMPLOYEE OR AFFILIATE OF BANK.         

DD.          Indemnification.  You will indemnify, defend and hold us harmless from against any and all loss, liability, cost, charges or other expenses (including reasonable attorneys' fees) which we may incur or be subject to, arising out of or related directly or indirectly to any breach by you of your obligations under this Agreement.