|
APPENDIX I
<br />
<br /> THE BANK OF NEW YORK
<br />ON-LINE COMlVlUNICAT1ONS SYSTEM (THE "SYSTEM")
<br />
<br /> TERMS AND CONDITIONS
<br />
<br /> 1. Ltcense: Use. (a) Tins Appendm I shall govern Customer's use of the System and any computer software provided by BNY to Customer m
<br />connection herewith (collectively, the "Software"). In the event of any confitct between the terms of this Appendix I and the main body of this Agreement with
<br />respect to Customer's use of the System, the terms of this Appendix I shall control.
<br />
<br /> (b) Upon delivery to Customer of Software and/or System access codes, Custodian grants to Customer a personal, nontransferable and nonexclustve
<br />license to use the Software and the System solely for the purpose of transmitting Written Instmcttons, receiving reports, making mquines or otherwise
<br />communtcattng with Custodian in connection with the Account(s). Customer shall use the Software and the System solely for its own internal and proper business
<br />purposes and not m the operation cfa service bureau. Except as set forth hereto, no hcense or right of any kind is granted to Customer with respect to the Software or
<br />the System. Customer acknowledges that Custodian and its suppliers retain and have title and exclusive proprietary rights to the Software and the System, including
<br />any trade secrets or other ideas, concepts, know-how, methodologies, or reformation incorporated therein and the exclusive rights to any copyrights, trademarks and
<br />patents (including registrattons and apphcations for registratton of either), or other statutory or legal protections avadable in respect thereof Customer further
<br />acknowledges that all or a part of the Software or the System may be copyrighted or trademarked (or a registration or claim made therefor) by Custodtan or as
<br />suppliers Customer shall not take any action with respect to the Software or the System inconsistent with the foregoing acknowledgments, nor shall Customer
<br />attempt to decompile, reverse engineer or modify the Software. Customer may not copy, sell, lease or provide, directly or indirectly, any of the Software or any
<br />portion thereof to any other person or entity without Custodian's prior written consent. Customer may not remove any statutory copyright notice or other notice
<br />included in the Software or on any media containing the Software. Customer shall reproduce any such notice on any reprodoctton of the Software and shall add any
<br />statutory copyright notice or other not,ce to the Sol tware or medta upon Custodian's request.
<br />
<br /> (c) If Customer subscribes to any database service provided by Custodian in connection with its use of the System, delivery of such database to Customer
<br />shall constitute the granting by Custodian to Customer of a non-exclusive, non-transferable license to use such database for so long as this Appendix I is in effect. It
<br />is understood and agreed that any database supplied by Custodian is derived fi.om sources which Custodian believes to be reliable but Custodian does not, and cannot
<br />for the fees charged, guarantee or warrant that the data ts correct, complete or current. All such databases are provided as an accommodation by Custodian to its
<br />customers and are compiled without any independent investigation by Custodian. However, Custodian will endeavor to update and revise each database on a
<br />periodic basts as Custodian, m its discretion, deems necessary and appropriate. Customer also agrees that Customer will promptly install all updates and revisions to
<br />each database which Custodian provtdes and that Custodian cannot bear any responsibility whatsoever for Customer's failure to do so. CUSTODIAN IS NOT
<br />RESPONSIBLE FOR ANY RESULTS OBTAINED BY CUSTOMER FROM USE OF DATABASE SERVICES PROVIDED BY CUSTODIAN.
<br />
<br /> 2. Eq~ipm~t. Customer shall obtain and maintain at its own cost and expense all equipment and servtces, including but not linnted to
<br />commumcations services, necessary for it to utihze the Software and obtain access to the System, and Custodian shall not be responsible for the reliability or
<br />availability of any such equipment or services.
<br />
<br /> 3 Proprietary Information. The Sofhvare, any data base and any proprietary data, processes, information and documentation made available to
<br />Customer (other than which are or become part of the pubhc domain or are legally required to be made available to the public) (collectively, the "Information"), are
<br />the exclusive and confidential property of Custodian or tts suppliers. However, for the avoidance of doubt, reports generated by Customer cnntainmg information
<br />relating to the Account(s) are not deemed to be within the meaning of the term "Information". Custoraer shall keep the Information confidential by using the same
<br />care and discretion that Customer uses with respect to its own confidential propemy and trade secrets, but not less than reasonable care. Upon termination of the
<br />Agreement or the licenses granted herein for any reason, Customer shall return to Custodian any and all copies of the Information winch are in its posses sion or under
<br />its control. The provisions of this Section 3 shall not affect the copyright status of any of the Information which may be copyrighted and shall apply to all
<br />information whether or not copyrighted.
<br />
<br /> 4. Modifications. Custodian reserve~ the right to modify the Software fi.om time to time and Customer shall install new releases of the Software
<br />as Custodian may dtrect. Customer agrees not to modtfy or attempt to modify the Software without Custodian's prior written consent. Customer acknowledges that
<br />any modifications to the Software, whether by Customer or Custodian and whether wtth or without Custodtan's consent, shall become the property of Custodian.
<br />
<br /> 5 NO REPRESENTATIONS OR WARRANTIES CUSTODIAN AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO
<br />WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, THE SYSTEM, ANY SERVICES OR ANY DATABASE, EXPRESS OR
<br />IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br />PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, THE SYSTEM, ANY SERVICES AND ANY DATABASE ARE PROVIDED "AS IS."
<br />TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ANY
<br />DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL, WHICH CUSTOMER MAY INCUR IN CONNECTION WITH THE
<br />SOFTWARE, SERVICES OR ANY DATABASE, EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR
<br />MALFUNCTION, INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR OR
<br />DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL.
<br />
<br /> 6. Segunt3': Rehance: Unauthorized Use Custodian will establish security procedures to be followed in connection with the System. Customer
<br />understands and agrees that the security procedures are intended to determine whether instructions received by Custodian through the System are authorized but are
<br />not (unless otherwtse specified m writing) intended to detect any errors contained in such instructions. Customer will cause all persons utfitzing the Software and the
<br />System to treat all applicable user and authorization codes, passwords and authenticatton keys with the highest degree of care and confidentiality. Custodian ~s
<br />hereby irrevocably authorized to comply with and rely upon on Written Instructions, whether or not authorized, received by it through the System in accordance wtth
<br />the security procedures. Customer acknowledges that it ts tts sole responsibihty to assure that only Authorized Persons use the System and that to the fullest extent
<br />permttted by applicable law Custodtan shall not be responsible nor liable for any anauthonzed use thereof or for any losses sustained by Customer arising from or in
<br />connection with the use of the System or Custodtan's reliance upon and compliance with Written Instructions received through the System.
<br />
<br /> 7. System Acknowledmnents. Custodian shall acknowledge through the System its recetpt of each transtmssion communicated through the
<br />System, and in the absence of such acknowledgment Custodian shall not be liable for any failure to act in accordance with such transmission and Customer may not
<br />claim that such transnnssion was received by Custodtan.
<br />
<br /> 8 EXPORT RESTRICTIONS EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED STATES LAW. CUSTOMER MAY NOT
<br /> UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR
<br />
<br />
<br />
|