This version in effect since July 17, 2006.
This Agreement governs the use of Business Internet Banking and Business Internet Banking services. By signing the Business Internet Banking application form and returning it to the bank, you agree to be bound by this agreement as amended from time to time. If you do not agree with each provision of this agreement as amended do not use Business Internet Banking.
- Introduction
- The Services and your Accounts
- Registration and Customer Delegates
- Customer Instructions
- Foreign Currency Transactions
- Other Institutions
- Confidentiality
- Security
- Internet Banking Support
- Business Internet Banking Information and Correspondence
- Security Devices
- Fees and Charges and changes to this Agreement, The Site, and Business Internet Banking Services
- Our Liability to You
- Indemnity
- Electronic Advertising
- Encryption
- Termination of Business Internet Banking or Customer Access
- Force Majeure
- Miscellaneous
- Governing Law and Jurisdiction
1. Introduction
1.1 The Customer wishes to use Business Internet Banking Services provided by the Bank and the Bank is willing to make Business Internet Banking Services available to the Customer.
1.2 The Customer and the Bank agree that Business Internet Banking Services will be supplied to the Customer subject to the terms and conditions contained or referred to in this Agreement.
1.3 The Customer will, acting through one or more Customer Delegates, access Business Internet Banking Services through the Web Site.
1.4 Defined terms used in this Agreement are set out below and elsewhere in this Agreement:
Accounts: The Customer’s deposit, loan, and other accounts and other banking products the Customer may have at the Bank from time to time.
Agreement: This agreement and any supplementary terms for the provision of Business Internet Banking published by the Bank from time to time, all as amended by the Bank from time to time.
Application Form: A properly completed and duly signed application form (in the form prescribed by the Bank) submitted by the Customer to the Bank for the purpose of applying for access to Business Internet Banking, as amended from time to time by the Customer in accordance with this Agreement.
Bank (also we, us, our): The Bank of Bermuda Limited
Business Day: A day other than a Saturday, Sunday or a statutory holiday in Bermuda.
Business Internet Banking: HSBC Group’s business Internet banking system available through the Web Site.
Business Internet Banking Information: All information (including electronic messages) accessible through Business Internet Banking regarding your Accounts, Customer Instructions, and use of Business Internet Banking and Business Internet Banking Services.
Business Internet Banking Services: Any banking product or service provided by the Bank to the Customer using Business Internet Banking, including Internet Banking Support
Change Form: A properly completed and duly signed change form (in the form prescribed by the Bank) submitted by the Customer to the Bank for the purpose of amending the Customer’s Application Form or terminating the Customer’s use of Business Internet Banking.
Customer(also you, your, yours): The organization(s) named on the Application Form including all employees, directors, officers, representatives, agents or assigns. If there is more than one organization named, the term “Customer” shall be deemed to be a reference to each of the organizations or all organizations collectively, as the context requires.
Customer Delegate: Any individual appointed by the Customer from time to time in accordance with this Agreement with authority and responsibility for the Customer’s installation, administration, maintenance, and ongoing use of Business Internet Banking.
Customer Instruction: Any request or instruction from a Customer Delegate that is received by the Bank through Business Internet Banking or Internet Banking Support in accordance with this Agreement.
Day: Calendar day.
HSBC Group: HSBC Holdings plc and its subsidiary and associate businesses and persons, including the Bank, or any of their branches.
Institution: Any member of the HSBC Group (other than the Bank) and any other financial institution that the Customer has instructed the Bank should be treated as an Institution for the purposes of this Agreement.
Internet Banking Support: The Internet Banking telephone support service available to Customer Delegates to provide support in connection with Business Internet Banking Services, which may be contacted at the telephone numbers indicated on the Website.
On-line: Internet access to Business Internet Banking through the Web Site.
Password: Any confidential password, phrase, code or number, memorable data, or any other identification whether issued to the Customer or a Customer Delegate by the Bank or adopted by the Customer or a Customer Delegate, which may be used to access the Web Site and/or Business Internet Banking and/or Business Internet Banking Services and/or to effect Customer Instructions.
Person: An individual, corporation, partnership, society, trust, unincorporated organization or association, or any other legal entity.
Security Device(s): Any electronic security device, token or certificate, and all electronic files related thereto or created thereby, that is used by any Customer Delegate to access and use Business Internet Banking or give Customer Instructions.
Web Site: The Bank website through which persons access Business Internet Banking.
2. The Services and Your Accounts
2.1 You and your Customer Delegates may use Business Internet Banking to access certain Business Internet Banking Services and Business Internet Banking Services for lawful commercial banking purposes only and only in accordance with this Agreement. You may not use Business Internet Banking for any business or purpose inconsistent with generally accepted community standards of conduct or propriety, including products, services or businesses that are engaged in or associated with illegal activities.
2.2 You authorize us to make available through Business Internet Banking all of your eligible Accounts existing as of the date you submit your Application Form and opened afterward which have the account numbers indicated in your Application Form or as requested by you from time to time.
2.3 This Agreement is in addition to and supplements any written agreements that you have with the Bank (now or in the future) or any other mandates given by you at any time concerning your dealings with the Bank generally and your Accounts, including without limitation any Account Opening Agreement. Except as expressly provided in this Agreement, all of your Accounts remain subject to all other written agreements and mandates otherwise applicable to them now or in the future. If there is any inconsistency or conflict between the provisions of this Agreement and the provisions of any other written agreements that you have with the Bank (now or in the future) or any other mandates given by you at any time concerning your dealings with the Bank generally and your Accounts, the provisions of this Agreement will govern regarding your use of Business Internet Banking and Business Internet Banking Services. For all other matters, the written agreements and mandates concerning your Accounts generally (such as your Account Opening Agreement) will prevail. Without limiting the generality of the foregoing and unless we otherwise advise you in writing, Customer Instructions are "Instructions" within the meaning of any Account Opening Agreement that you have with the Bank now or in the future.
3. Registration and Customer Delegates
3.1 By submitting an Application Form, you represent and warrant that: (i) you have duly appointed, authorized and vested each Customer Delegate with full authority to give Customer Instructions regarding your Accounts or any matters relating to Business Internet Banking; (ii) none of the authorities or powers granted to Customer Delegates to use Business Internet Banking conflict with any obligations to third parties or other commitments of the Customer; and you will do all things necessary to ensure that all Customer Delegates will be and remain properly authorized for all Customer Instructions and to ensure compliance with the terms of this Agreement. You also agree that YOU ARE SOLELY RESPONSIBLE and liable to ensure ongoing compliance with this section and for ALL ACTS OR OMISSIONS BY YOU OR YOUR CUSTOMER DELEGATES including with respect to the use of Passwords issued to or used by you or your Customer Delegates.
3.2 The Customer agrees that it is solely responsible to advise the Bank immediately, in writing, of all changes in Customer Delegates or any other information stated in the Application Form. In the event that a Customer Delegate should lack the authority or is otherwise prevented from giving valid Customer Instructions, you agree that you remain responsible for all unauthorized or invalid Customer Instructions acted upon by the Bank. If a Customer Delegate must be changed, or at any time other information in the Application becomes inaccurate, you must notify us immediately by submitting a Change Form to the Bank. The change requested will only be effective after the Change From is processed and approved by the Bank. THE BANK WILL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED TRANSACTIONS COMPLETED PRIOR TO THE PROCESSING AND APPROVAL OF A CHANGE FORM.
3.3 You request and authorize us to allow your Customer Delegates to access and use Business Internet Banking, including viewing Account-related information and giving Customer Instructions, in accordance with the rights and limits (if any) assigned to your Customer Delegates from time to time in accordance with this Agreement.
3.4 We may, in our absolute discretion and without any liability to you or any other person, refuse permission to register any individual as a Customer Delegate or suspend or terminate the registration or access rights of any Customer Delegate.
3.5 You will ensure that all of your Customer Delegates comply with the terms of this Agreement. You are fully and solely responsible and liable for all acts or omissions by your Customer Delegates including all use of Passwords or Security Devices issued to or used by you or your Customer Delegates.
4.1 You request and authorize us to accept, rely upon and act upon all apparently valid Customer Instructions received by us in accordance with this Agreement as instructions properly authorized by you, even if they conflict with the terms of any other mandates given by you at any time concerning your Accounts or dealings with the Bank generally, without inquiry regarding the authenticity of any Customer Instructions or the identity or authority of the persons giving them.
4.2 You and your Customer Delegates are solely responsible and liable for ensuring the truth, accuracy and completeness of all Customer Instructions and other information provided to us in connection with Business Internet Banking and for ensuring that Customer Instructions will achieve the intended purpose. We will rely upon Customer Instructions and other information provided to us regarding Business Internet Banking. We may in our absolute discretion, require that certain Customer Instructions be communicated or confirmed by signed paper documents delivered as specified by us or accept certain Customer Instructions by telephone or other communication.
4.3 We are not liable for any loss, damage, delay or costs where the content of a Customer Instruction or other information is false, inaccurate, unauthorized or incomplete. You will be solely responsible and liable for any and all loss, damage, delay and costs that you, us, or any other person may incur as a result of any false, inaccurate, unauthorized or incomplete Customer Instructions or other information provided to us.
4.4 You direct and authorize us to rely and act upon any Customer Instruction or other document delivered or communicated to us in accordance with this Agreement.
4.5 You will ensure that you and your Customer Delegates notify Internet Banking Support immediately by telephone if you or your Customer Delegates make an error regarding a Customer Instruction.
4.6 Requests to cancel or modify any previous Customer Instruction may be acted upon in our absolute sole discretion provided they are received before that Customer Instruction is implemented.
4.7 We may, in our absolute discretion and without any notice or liability to you or any other person, refuse to act on or delay acting on a Customer Instruction (including a request to cancel or modify a previous Customer Instruction) or reverse any action taken on a Customer Instruction for any reason, including without limitation:
- 4.7.1 the Customer Instruction is not in accordance with this Agreement or any other between the Customer and the Bank;
- 4.7.2 we know or suspect that the Customer Instruction may not be authorized by you or involves funds subject to a hold, dispute, restriction, trust or third party obligation or legal process we reasonably believe prevents their withdrawal;
- 4.7.3 the Customer Instruction may violate any Bank policies, procedures or practices, any applicable law or regulation, or any applicable risk control program, rule, standard, or guideline of any governmental authority;
- 4.7.4 the effect of the Customer Instruction would exceed a limit imposed by the Bank upon you generally or upon the Customer Delegate that gave the Customer Instruction or Business Internet Banking;
- 4.7.5 we know of or suspect a breach of security in respect of or in connection with the operation of one or more of your Accounts or Business Internet Banking generally; 4.7.6 we are unable to process a Customer Instruction;
- 4.7.7 there was an operational failure or malfunction in connection with the transmission of a Customer Instruction;
- 4.7.8 this Agreement has been terminated pursuant to Section 17 below.
4.8 We are not responsible or liable to you or any other person if we do not immediately process or implement Customer Instructions or immediately execute transactions. Some Customer Instructions and transactions or portions thereof may take time to process, implement, and execute, and certain Customer Instructions and transactions or portions thereof may only be processed, implemented or executed during normal banking hours even though Business Internet Banking is On-line and may be accessible outside such hours. Forward-dated transactions or portions thereof may be processed on the first Business Day prior to the stipulated transaction date.
4.9 You will ensure that you and your Customer Delegates access Business Internet Banking to verify that Customer Instructions (including those for forward-dated transactions) have been correctly and timely executed.
5. Foreign Currency Transactions
5.1 The currency conversion rate for foreign currency transactions will be either the currency conversion rate stipulated in the transaction instructions (as displayed on the applicable instruction confirmation screen) or, if no such rate is stipulated, the Bank's prevailing currency conversion rate for transactions of the same size and as of the same date and time as the instructions are processed.
6.1 You appoint us as your agent on your behalf to request and receive from any Institution information about you and your accounts at that Institution and to use Business Internet Banking and other communications methods to instruct an Institution to give effect to Customer Instructions.
6.2 If we communicate Customer Instructions to an Institution on your behalf, we are not responsible or liable to you or any other person for any delay or failure by the Institution in executing the Customer Instructions.
6.3 We make no representation, warranty or condition regarding the accuracy or sufficiency of any Business Internet Banking Information based upon information supplied to us by an Institution.
6.4 In order that an Institution may give effect to a Customer Instruction, we may, as your agent, agree with any Institution that where applicable, the terms of this Agreement or substantially similar terms will apply between you and that Institution.
6.5 If a Customer Instruction requires that we deal with an Institution but the Customer Instruction does not identify the Institution, we may in our absolute discretion select the Institution and deal with the Institution for the purposes of the Customer Instruction without any notice or liability to you or any other person.
6.6 We may, in our absolute discretion, appoint other persons (including Institutions) from time to time to provide some or all of Business Internet Banking Services and/or some or all of the elements of Business Internet Banking under this Agreement, including without limitation the issuance of Security Devices (which may be carried out by HSBC Group or such other person as we may use from time to time). Without affecting the liability of such persons to us, all responsibility and liability to you or any other person with respect to Business Internet Banking Services being provided under this Agreement (including those being indirectly provided by any such persons) will be the responsibility and liability of us and not such persons.
7.1 We, and any other members of the HSBC Group, may disclose information relating to you and your Accounts to other members of the HSBC Group where we consider this to be necessary for the effective provision of Business Internet Banking or Business Internet Banking Services, or so that services may be processed for us or any other member of the HSBC Group in any country or jurisdiction.
7.2 We may disclose to other Institutions information regarding you and your Accounts as may be necessary to give effect to Customer Instructions. Where we disclose information regarding you and your Accounts to an Institution, we are not responsible or liable for that Institution’s collection, use and further disclosure of that information.
7.3 You represent and warrant that all employees and other persons whose personal or other data is transmitted, processed or otherwise handled in connection with Business Internet Banking have consented to such transmission, processing or other handling or will do so prior to any such transmission, processing or other handling.
8.1 In addition to these terms you agree to comply with any other reasonable instructions or recommendations we may issue regarding Business Internet Banking security, including without limitation the security recommendations contained on the Website. You are solely responsible and liable for setting-up, maintaining and regularly reviewing your internal security arrangements concerning access to, and use of, Business Internet Banking Services, and information stored on your computing and communications systems, and in particular, control of Passwords and Security Devices.
8.2 You confirm that you have assessed the security features of Business Internet Banking and have determined that those features, in combination with your own security measures, are adequate to protect your interests and those of your Customer Delegates.
8.3 You will ensure that your Customer Delegates comply with the terms of this Agreement and any reasonable instructions or recommendations we may issue regarding Business Internet Banking security, including without limitation the security recommendations contained on the Website.
8.4 You will ensure that neither you nor any of your Customer Delegates, employees, agents or representatives does anything that will compromise the security of Business Internet Banking or the systems or security of any other Business Internet Banking customers.
8.5 You may only access Business Internet Banking via the Web Site.
8.6 You are solely responsible and liable for the security of all of your and your Customer Delegates Passwords and Security Devices. You will ensure that your Customer Delegates keep Passwords secure and secret at all times and take steps to prevent unauthorized use of Passwords or Security Devices. Without limiting the generality of the foregoing, you will ensure that your Customer Delegates:
- 8.6.1 never write or otherwise record Passwords in a way that can be understood by any other person except where it is required by the Bank for the registration of a Customer;
- 8.6.2 never reveal Passwords to any other person, including our staff;
- 8.6.3 never share or allow any other person to use Passwords or Security Devices;
- 8.6.4 never access Business Internet Banking from a publicly accessible or shared Internet access device;
- 8.6.5 create only Passwords that are non-obvious and hard to guess, and no Passwords used in connection with other Banking services or services provided by other persons;
- 8.6.6 immediately give notice to Internet Banking Support by telephone if they believe that any other person may have seen, had access to or used Passwords;
- 8.6.7 never record Passwords in any software which retains it automatically (for example, any computer screen prompts or ‘save password’ feature or the like on their Internet browser);
- 8.6.8 ensure that they are not watched by any other person or monitored by closed circuit TV, and avoid allowing any other person to identify the keys they are pressing, while logging onto Business Internet Banking;
- 8.6.9 change Passwords (except Security Devices) on a regular basis and not alternate between Passwords; and
- 8.6.10 program their Internet browser to require the input of a Password before providing access to or allowing use of Security Devices (where applicable).
8.7 You will ensure that once a Customer Delegate has logged onto Business Internet Banking or the Web Site, the Customer Delegate will not leave (for any amount of time) the Internet terminal from which they have accessed Business Internet Banking or the Web Site or let any other person use the Internet terminal until they have logged off Business Internet Banking and the Web Site and closed their Internet browser.
8.8 If you or any of your Customer Delegates know of or suspect any unauthorized access to Business Internet Banking or the Web Site, or any unauthorized or fraudulent transaction or Customer Instructions, you will notify Internet Banking Support immediately by telephone and immediately change all Passwords.
8.9 You will comply immediately with all reasonable requests from us to assist in recovering any losses or identifying actual or potential breaches of security or other wrongful conduct. We may disclose information about you or your Accounts or the use of Business Internet Banking by you or your Customer Delegates to a government institution that has asserted its lawful authority to obtain the information or to other persons where we believe the information could be useful in the investigation of unlawful activity or may help prevent or recover losses or potential breaches of security or other wrongful conduct.
8.10 If you know of or suspect any wrongful conduct by a Customer Delegate in connection with Business Internet Banking or Business Internet Banking Services or the Customer Delegate is no longer authorized to use Business Internet Banking Services on your behalf or leaves your employment or is otherwise no longer connected with you or your business, you will notify Internet Banking Support immediately by telephone and immediately take all steps available to ensure that such Customer Delegate is unable to access Business Internet Banking Services.
8.11 You are solely responsible and liable for the performance and protection of any Internet browser used in connection with Business Internet Banking, including:
- 8.11.1 any equipment, software or associated user documentation or any services that any third party produces or supplies at any time for use in connection with access to or use of Business Internet Banking; and
- 8.11.2 promptly implementing all security patches and other security measures issued or recommended from time to time by the suppliers of such Internet browsers. You are liable for any loss or damage arising from or connected with use of Business Internet Banking in violation of any of the above.
9.1 We may in our absolute discretion accept and act on, or refuse to accept and act on, Customer Instructions provided to Internet Banking Support by telephone, including without limitation Customer Instructions regarding the resetting or termination of Passwords, Security Devices, the suspension or removal of Customer Delegates.
9.2 We will use procedures as we determine appropriate in our absolute discretion to verify the identity of persons calling Internet Banking Support as a Customer Delegate. We may in our absolute discretion rely upon any information or representation by the person calling, and we are not obliged to verify the identity of any person calling as a Customer Delegate with you or any other Customer Delegate. If we determine in our absolute discretion that a person calling Internet Banking Support is a Customer Delegate, we may rely upon and act on their instructions as if they were provided using a Password or Security Devices and are otherwise authorized Customer Instructions.
9.3 We may in our absolute discretion require that Customer Instructions provided by telephone be confirmed in writing signed by or on behalf of the Customer in accordance with the then applicable Bank mandate or resolution and delivered to us at such address and by such delivery means as we may direct in our absolute discretion before the Customer Instructions are processed or implemented or resulting transactions executed.
10. Business Internet Banking Information and Correspondence
10.1 You will ensure that Customer Delegates access all messages available through Business Internet Banking on no less than a daily basis and immediately report to Internet Banking Support by telephone any error, omission, or irregularity (including any fraudulent or unauthorized Customer Instruction or Account activity) or other objection you have to Business Internet Banking Information.
10.2 You will be deemed to have received, examined, had notice of and been aware of Business Internet Banking Information on the date on which the Business Internet Banking Information was first made accessible to you or any of your Customer Delegates through Business Internet Banking. Our records will be conclusive proof of the date on which Business Internet Banking Information was first made accessible to you or any of your Customer Delegates through Business Internet Banking.
10.3 Due to the nature of Business Internet Banking and Business Internet Banking Services and circumstances beyond our reasonable control, we make no representation, warranty or condition regarding the accuracy, completeness, or timeliness of Business Internet Banking Information. We may in our absolute discretion change Business Internet Banking Information at any time and from time to time without any notice or liability to you or any other person. Some Business Internet Banking Information may be subject to a disclaimer or other provisions. If you rely on such Business Internet Banking Information, you do so subject to the disclaimer or other provisions.
10.4 Unless the Bank in its absolute discretion advises you otherwise, if there is any discrepancy between Business Internet Banking Information and information contained in any paper records of the Bank, including any Account statement or an originally signed copy of this Agreement, the information contained in the paper record or Account statement will be deemed to be correct and the Business Internet Banking Information will be deemed to be amended accordingly.
10.5 The Bank may in its absolute discretion send correspondence regarding Business Internet Banking, including Business Internet Banking welcome packages, to the attention of one or more Customer Delegates, and all such correspondence will be deemed to be received by you and each of your Customer Delegates.
11.1 We hereby grant to you a non-exclusive, non-transferable, limited, revocable licence to use Security Devices issued by us solely for the purpose of Business Internet Banking Services and related communications with members of the HSBC Group as they may allow from time to time. Except for the specific, limited rights granted to you by this license, all right, title and interest in and to all Security Devices belong to us, and neither you nor any Customer Delegates will acquire any rights whatsoever to the Security Devices.
11.2 You will ensure that you and your Customer Delegates immediately give notice to Internet Banking Support by telephone if you or your Customer Delegates know or suspect that any Security Devices may not function correctly.
11.3 To the fullest extent permitted by law, we disclaim any and all representations, warranties and conditions of any kind (whether express, implied, statutory or otherwise) regarding Security Devices, including without limitation representations, warranties or conditions of quality, merchantability, fitness for a particular purpose, performance, and durability.
12. Fees and Charges and Changes to this Agreement, the Site, and Business Internet Banking Services
12.1 You agree to pay all applicable fees and charges (if any) for Business Internet Banking Services as may be applicable from time to time. We may, in our absolute discretion, change from time to time our Business Internet Banking fees and charges and the frequency and dates of payment on giving you not less than 30 days prior notice. In addition, you agree to pay any fees and charges applicable to particular banking or other services we might provide in response to Customer Instructions, including courier charges. Details of current fees and charges are available upon request.
12.2 You are liable for any telephone fees and charges and any fees and charges by your Internet service provider arising from, connected with, or relating to your use of Business Internet Banking Services.
12.3 We may, in our absolute discretion, change, discontinue, supplement or amend all or any part of Business Internet Banking, Business Internet Banking Services, or the Web Site from time to time without any prior notice or liability to you or any other person.
12.4 We may, in our absolute discretion, supplement or amend this Agreement from time to time by making the modified Agreement accessible through Business Internet Banking or the Web Site not less than 30 days before the revisions are effective, or exceptionally, such shorter time period (other than in the case of any changes to our fees and charges) as we consider necessary for the effective operation or provision of Business Internet Banking or Business Internet Banking Services.
12.5 You may not change, supplement or amend this Agreement in any manner except in writing signed by us.
13.1 Our liability to you regarding your dealings with us generally and/or your Accounts is subject to the written agreements that you have with us (now or in the future) concerning those matters, such as your Account Opening Agreement. This Section applies only to liabilities arising from, connected with, or relating to Business Internet Banking and Business Internet Banking Services. Except as expressly set forth in this Agreement, Business Internet Banking and Business Internet Banking Services are provided on an "as is" and "as available" basis, and without any representations, warranties or conditions of any kind (whether express, implied, statutory or otherwise), and including without limitation implied representations, warranties or conditions of title, non-infringement, merchantability, fitness for a particular purpose, performance, durability, availability, timeliness, accuracy or completeness, all of which are hereby disclaimed by the Bank to the fullest extent permitted by law. You are solely responsible and liable for:(a) obtaining, configuring and maintaining all computer hardware, software, telephone services, and other equipment and services necessary for you to access and use Business Internet Banking;(b) scanning for and preventing the receipt and transmission of viruses, trojan horses, worms or other destructive or disruptive components; and(c) maintaining a complete and current backup of all of the information contained on your computer system prior to accessing or using Business Internet Banking. You are solely responsible and liable for any loss or damage arising from, connected with, or relating to the use by you or your Customer Delegates of a prohibited or unsupported Internet browser or Internet browser/operating system combination.
13.1 Notwithstanding any other provision of this Agreement and to the fullest extent permitted by law, the Bank will not under any circumstances be liable to you or any other person for any consequential, indirect, or incidental loss or damage of any nature or kind whatsoever, including without limitation loss of use, loss of production, loss of data, loss of income or profits (anticipated or otherwise), loss of markets, or economic loss, or any special, exemplary or punitive damages of any nature or kind whatsoever, whether in contract, tort, negligence, strict liability, or under any other theory of law or equity, arising from, connected with, or relating to the access to and use of Business Internet Banking or Business Internet Banking Services by you or any other person, and regardless of any breach of contract, negligence or other fault or wrongdoing by the Bank or any person for whom the Bank may be responsible, and notwithstanding that the Bank may have been advised of the possibility of such loss or damages being incurred by you or any other person.
13.2 Notwithstanding any other provision of this Agreement and to the fullest extent permitted by law, and without limiting the generality of the foregoing, the Bank will not be responsible or liable to you or any other person for any loss or damage suffered by you or any other person arising from, connected with, or relating to:(a) the Bank acting upon or giving effect to any Customer Instruction (regardless of whether it is authentic, authorized, unauthorized, or fraudulent or provided electronically with Passwords, Security Devices or by telephone);(b) the Bank's failure or refusal to act upon or give effect to any Customer Instruction;(c) any failure or delay by the Bank in receiving, accessing, processing, accepting, acting upon or giving effect to any Customer Instruction;(d) any errors, omissions, or irregularities in Business Internet Banking Information;(e) defective or malfunctioning Security Devices;(f) the use by you or your Customer Delegates of any Internet browser or operating system that is either prohibited or not supported by Business Internet Banking; or(g)the operational failure, malfunction, interruption, change, amendment or withdrawal of Business Internet Banking or Business Internet Banking Services or(h) any Customer Instructions that violate any trust provisions which may govern an Account whether or not the Bank has any notice of the trust or any provisions governing same.
13.3 Notwithstanding any other provision of this Agreement and without limiting the generality of the foregoing, the Bank is not liable or responsible for any loss or damage suffered by you or any other person as arising from, connected with, or relating to any wrongful act or omission by an Institution or the Bank's appointment of an Institution in connection with this Agreement.
13.4 Notwithstanding any other provision of this Agreement and without limiting the foregoing, unless the Bank has specifically agreed in writing with you otherwise, the Bank is not liable or responsible for:
(a) any equipment, software or associated user documentation that any person other than the Bank produces or supplies at any time for use in connection with Business Internet Banking or Business Internet Banking Services; or(b) any services through which you access Business Internet Banking or Business Internet Banking Services that are not controlled by the Bank.
13.5 Notwithstanding any other provision of this Agreement and without limiting the generality of the foregoing, in no event will the Bank’s total aggregate liability to you or any other person for any and all claims, proceedings, liabilities, obligations, damages, losses, and costs, whether in contract, tort, negligence, strict liability, or under any other theory of law or equity, arising out of, related to, or connected with the use of Business Internet Banking or Business Internet Banking Services (collectively "Claims"), and regardless of any breach of contract, negligence or other fault or wrongdoing by the Bank or any person for whom the Bank may be responsible, exceed three times the standard fees for the use of Business Internet Banking Services by you during the twelve month period before the date on which the Claim (or the first in a series of Claims) arose, regardless of whether such fees have been paid by you or waived by us.
13.6 Advice and information provided by or on behalf of the Bank, whether oral or written, will not create any representation, warranty or condition or vary or amend this Agreement, including without limitation this Section 13, and you may not rely upon any such advice or information.
13.7 In this Section 13, references to the Bank include the Bank and the HSBC Group and all of their respective partners, members, agents, directors, officers, employees, information providers, service providers, suppliers, sub-contractors, licensors and licensees, and all other related, associated, or connected persons.
14.1 You will indemnify, defend and hold the Bank harmless from and against any and all first party and third party losses, damages, claims, demands, actions, proceedings, liabilities, expenses, and costs (including without limitation reasonable legal fees and expenses) of any nature and kind whatsoever which the Bank or any other person may suffer or incur arising out of, related to, or connected with: (a) your use of Business Internet Banking or Business Internet Banking Services; (b) the Bank acting on any Customer Instruction in accordance with this Agreement; (c) your breach of this Agreement; (d) your Customer Delegates’ failure to comply with this Agreement; (e) any wrongful act or omissions by any of your Customer Delegates; (f) the Bank’s acting upon or giving effect to, or the Bank’s failure or refusal to act upon or give effect to, any Customer Instruction (regardless of whether or not the Customer Instruction is authentic, authorized, unauthorized, fraudulent or subject to a trust). You will assist and co-operate as fully as reasonably required by the Bank in the defence of any third party claims, demands, actions, and proceedings.
14.2 In this Section 14, references to the Bank include the Bank and the HSBC Group and all of their respective partners, members, agents, directors, officers, employees, information providers, service providers, suppliers, sub-contractors, licensors and licensees, and all other related, associated, or connected persons.
16.1 Business Internet Banking uses levels of encryption that may be unlawful in jurisdictions outside Bermuda. It is your responsibility to ensure that, if outside Bermuda, local laws allow you and your Customer Delegates to use Business Internet Banking. We will not be responsible or liable for any loss or damage suffered by you or any other person as a result of you or your Customer Delegates not being able to use Business Internet Banking in jurisdictions outside Bermuda.
17. Termination of Business Internet Banking or Customer Access
17.1 Notwithstanding any other provision of this Agreement, we may in our absolute discretion change, suspend, restrict or terminate Business Internet Banking or some or all Business Internet Banking Services immediately and without any notice or liability to you or any other person.
17.2 Notwithstanding any other provision of this Agreement, we may in our absolute discretion, immediately terminate this Agreement, or restrict, suspend, or terminate the ability of you or any or all of your Customer Delegates to access and use all or any part of Business Internet Banking or Business Internet Banking Services at any time without any notice or liability to you or any other person.
17.3 You may terminate this Agreement by submitting to the Bank a written termination notice duly signed by you or your duly authorized signatories in accordance with the then applicable bank mandate or resolution. Any such termination notice will not be effective unless and until it is received and processed by the Bank. You must deliver a termination notice by postal mail, courier or hand delivery to the Bank branch of your Accounts.
17.4 Either party may terminate this Agreement with immediate effect by notice to the other party, if the other party: (a) commits a material breach of this Agreement; (b) becomes bankrupt or a petition of bankruptcy is filed against them; (c) takes any step or proceeding available to it for the benefit of insolvent debtors; (d) becomes insolvent or unable to discharge its liabilities as they become due; or (e) takes any step or proceeding for its liquidation, dissolution or winding up.
17.5 If you breach any provision of this Agreement, you may not use Business Internet Banking.
17.6 If this Agreement is terminated, it will nevertheless continue to apply and be binding upon you in respect of your prior use of Business Internet Banking and anything arising out of, related to, or connected with your prior use of Business Internet Banking. Termination of this Agreement will not affect the rights and remedies of either party accrued to the date of termination. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement, the following provisions of this Agreement and all other provisions necessary for their interpretation or enforcement will survive indefinitely after the termination of this Agreement and remain in full force and effect and be binding upon the parties as applicable: sections 7, 13, 14, 18, and 20 and paragraphs 2.3, 3.4, 3.5, 4.3, 4.6, 8.9, 10.2, 10.4, 16.1, 17.6, 17.7, 19.2, 19.5 19.6, 19.7, and 19.9.
17.7 Upon termination of this Agreement, we may in our absolute discretion and without any notice or liability to you or any other person cancel or process and implement Customer Instructions that have not yet been processed or implemented, including forward-dated transactions.
17.8 If the Customer is a partnership, this Agreement may be terminated in accordance with this Section 17 by any one partner, notwithstanding any change of name of the partnership, admission of new partner(s) or any partner ceasing to be a member of the partnership by reason of death or otherwise.
18.1 We will not be liable for any delay in performing or failure to perform any of our obligations under this Agreement as a result of any circumstances or events beyond our reasonable control, including without limitation the failure, malfunction or unavailability of power, telecommunications, data communications, computer systems or software and related services, act of God, war, terrorism, riot, civil unrest or commotion, fire, flood, government action, strikes, lock-outs, labour disruption or other industrial action or trade dispute (whether involving our employees or those of any other person). Any delay or failure of this kind will not be deemed to be a breach of this Agreement and the time for performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
19.1 This Agreement is the entire agreement between the parties concerning the use of Business Internet Banking and Business Internet Banking Services. It supersedes all previous agreements, communications, representations or discussions (written, oral or otherwise) between you and us relating to Business Internet Banking and Business Internet Banking Services.
19.2 If the Customer at any time is made up of more than one type of business organization, the obligations of such organizations, pursuant to this Agreement, are joint and several. If the Customer, or any organization that is part of the Customer, is a partnership, the obligations of each partner hereunder, are joint and several.
19.3 Except as expressly set forth in this Agreement or requested by us, all notices required to be given under this Agreement will be in writing and communicated by postal mail, courier or hand delivery or through Business Internet Banking. In addition to the forgoing, we may provide any notice to you concerning Customer Instructions by telephone or in any other manner appropriate for the circumstances, and when you receive such notice, such notice shall be deemed to meet any notice obligation on us. If by postal mail, the notice will be deemed to have been received 5 days after posting by one party to the postal address most recently notified by the receiving party. If through Business Internet Banking: (a) a notice to you will be deemed to have been received by you when it is accessible by you or any of your Customer Delegates through Business Internet Banking; and (b) a notice to the Bank will be deemed to have been received by the Bank when it is actually processed by Business Internet Banking or an individual Bank representative.
19.4 If any provision of this Agreement is determined to be unenforceable or invalid for any reason, that unenforceable or invalid provision will not affect the enforceability or validity of the remaining provisions of this Agreement, which will remain in full force and effect, and any unenforceable or invalid provisions will be severable from the remainder of this Agreement.
19.5 Our records regarding access to and use of Business Internet Banking and Business Internet Banking Services by you or your Customer Delegates (including any Customer Instructions or other communications) are, unless proven to be wrong, conclusive evidence of the access to and use of Business Internet Banking by you and your Customer Delegates. You will not object to the admission of the Bank’s records (including without limitation computer and other electronic records and data) as evidence in legal proceedings on the grounds that such records are not originals, are not in writing, are hearsay, or are documents containing information extracted from a computer.
19.6 Copyright in the pages, screens, information (other than information about your Accounts and financial affairs) and all materials and their arrangement included in Business Internet Banking Services and in the Web Site (together the “Material”) is owned by or licensed to us or the HSBC Group unless otherwise noted. You may print, copy, download, or temporarily store extracts from the Material for your own information or when you use Business Internet Banking Services. You may not alter or otherwise make any changes to any Material that you print, copy, download or store, including without limitation removing any identifying marks or legends from such Material. Any other use of the Material is prohibited unless you first request and obtain our express written permission. Any rights not expressly granted by this Agreement are reserved to the Bank.
19.7 Bank of Bermuda, HSBC and the Hexagon logo are trademarks of the HSBC Group, and all rights in and to those marks vest in the HSBC Group. Other than as expressly provided in Section 19.6 above, you may not use or reproduce the HSBC trademark, the Hexagon logo or the HSBC and Bank of Bermuda brand names.
19.8 No consent or waiver by any party to or of any breach by any other party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or any other breach of those or any other obligations of that party. No consent or waiver will be effective unless in writing and signed by all parties.
19.9 The provisions of this Agreement will enure to the benefit of and be binding upon the Bank and its successor and assigns, and you and your heirs, executors, administrators, successors, permitted assigns, and personal representatives. You may not assign this Agreement or the rights and obligations under this Agreement without our prior written consent, which may be withheld in our absolute discretion. We may assign this Agreement and our rights and obligations under this Agreement without your consent.
20. Governing Law and Jurisdiction
20.1 Notwithstanding your country of residence, incorporation, location, registered and records office, or usual place of business, as the case may be, or the location from which you or Customer Delegates access and use Business Internet Banking and business Internet Banking Services, this Agreement, your use of Business Internet Banking and Business Internet Banking Services, and all related matters are governed exclusively by the laws of Bermuda. You hereby irrevocably submit and attorn to the original and exclusive jurisdiction of the courts of Bermuda to the exclusion of the jurisdiction of the courts of any other country. You agree that the courts of Bermuda are presumed to be the most convenient forum in which to litigate any dispute arising from, connected with, or relating to this Agreement, Business Internet Banking, Business Internet Banking Services, or any related matters.
20.2 You agree to submit to the non-exclusive jurisdiction of the Courts of Bermuda.
