Loading...
HomeMy WebLinkAboutBANK OF NEW YORK, THE -2012?. ? M S? l? ?R 112012 N-2012-039 Gl, ri stir+e p? arfic THE BANK OF NEW YORK ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM") TERMS AND CONDITIONS 1. License; Use. Upon delivery to Customer of softwaze enabling Customer to obtain access to the System (the "Software"), BNY grants to Customer a personal, nontransferable and nonexclusive license to use the Software solely for the purpose of transmitting Written Instructions, receiving reports, making inquiries or otherwise communicating with BNY in connection with the Account(s). Customer shall use the Softwaze solely for its own internal and proper business purposes and not in the operation of a service bureau. Except as set forth herein, no license or right of any kind is granted to Customer with respect to the Softwaze. Customer acknowledges that BNY and its suppliers retain and have title and exclusive proprietary rights to the Softwaze, including any trade secrets or other ideas, concepts, know-how, methodologies, or information incorporated therein and the exclusive rights to any copyrights, trademarks and patents (including registrations and applications for registration of either), or other statutory or legal protections available in respect thereof. Customer further acknowledges that all or a part of the Software may be copyrighted or trademazked (or a registration or claim made therefor) by BNY or its suppliers. Customer shall not take any action with respect to the Softwaze inconsistent with the foregoing acknowledgments, nor shall Customer attempt to decompile, reverse engineer or modify the Softwaze. Customer may not copy, sell, lease or provide, directly or indirectly, any of the Softwaze or any portion thereof to any other person or entity without BNY's prior written consent. Customer may not remove any statutory copyright notice or other notice included in the Softwaze or on any media containing the Software. Customer shall reproduce any such notice on any reproduction of the Software and shall add any statutory copyright notice or other notice to the Softwaze or media upon BNY's request. 2. Equipment. Customer shall obtain and maintain at its own cost and expense all equipment and services, including but not limited to communications services, necessary for it to utilize the Softwaze and obtain access to the System, and BNY shall not be responsible for the reliability or availability of any such equipment or services. 3. Proprietazy Information. The Softwaze, any data base and any proprietary data, processes, information and documentation made available to Customer (other than which aze or become part of the public domain or are legally required to be made available to the public) (collectively, the "Information"), are the exclusive and confidential property of BNY or its suppliers. However, for the avoidance of doubt, reports generated by Customer containing information relating to the Account aze not deemed to be within the meaning of the term "Information" Customer shall keep the Information confidential by using the same care and discretion that Customer uses with respect to its own confidential property and trade secrets, but not less than reasonable care. Upon termination of the Agreement or the Software license granted herein for any reason, Customer shall return to BNY any and all copies of the Information which are in its possession or under its control. 4. Modifications. BNY reserves the right to modify the Software from time to time and Customer shall install new releases of the Software as BNY may direct. Customer agrees not to modify or attempt to modify the Software without BNY's prior written consent. Customer acknowledges that any modifications to the Software, whether by Customer or BNY and whether with or without BNY's consent, shall become the property of BNY. 5. NO REPRESENTATIONS OR WARRANTIES. BNY AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL BNY OR ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL, WHICH CUSTOMER MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY DATABASE, EVEN IF BNY OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BNY OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL. 6. Security: Reliance: Unauthorized Use. Customer will cause all persons utilizing the Software and System to treat all applicable user and authorization codes, passwords and authentication keys with the highest degree of care and confidentiality. BNY is hereby irrevocably authorized to comply with and rely upon Instructions received by it through the System. Customer acknowledges that it is its sole responsibility to assure that only Authorized Persons use the System and that BNY shall not be responsible or liable for any unauthorized use thereof or for any losses sustained by Customer arising from on in connection with the use of the system or BNY's reliance upon and compliance with Instructions received through the system. 7. Svstem Acknowledgments. BNY shall acknowledge through the System its receipt of each transmission communicated through the System, and in the absence of such acknowledgment BNY shall not be liable for any failure to act in accordance with such transmission and Customer may not claim that such transmission was received by BNY. 8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED STATES LAW. CUSTOMER MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER COUNTRY. IF BNY DELIVERED THE SOFTWARE TO CUSTOMER OUTSIDE OF THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS PROHIBITED. Customer hereby authorizes BNY to report its name and address to government agencies to which BNY is required to provide such information by law. IN WITNESS WHEREOF, this Agreement has been executed, attested and sealed, as of the day and year first above written, by the duly authorized officers of Customer and BNY. (City Seal) _ _City of Santa Ana (Name of Customer) Attest: ?? Name: Maria D. Hui?ar Title: Clerk of the Council By: ? C? CC?c? ?? .???? Name: Francisco Gutierrez Title: Executive Director, Finance 8z Management Services Tax Identification Number: 95-6000785 THE BANK OF NEW YORK By: ?- l ?? Name: ?,,.. Y ? ? ,?? Title: ?<<oµ?? ,--?? i,, yr1 Laura $Pi[t Sheeny // =4sLSCZl tll C.I?y A.fIUi'^?v'