Dated: September 10, 2006
Executive Vice President
Head of Treasury & International Banking
Head Office BSB Building (8th, 10th & 17th – 19th Floors)
8 Rajuk Avenue
G.P.O. Box 2229
Re: Vetting of Draft Electronic Access and User Agreement for “W”.
We refer to your letter No. HO:TIB:2006:26277 dated September 04, 2006 on the above subject.
We have perused the Draft Electronic Access and User Agreement, for use of “W” Online Platform (“System”), made between Bank 1, Bangladesh (“BANK 1”) and “W” PSC (““W””).
Our comments on the Draft Electronic Access and User Agreement for “W” are as follows:
|1.||Clause 2||Please note that, under this clause “W” grants BANK 1 a non-exclusive, revocable, non-transferable and limited license to access and use the System.Moreover, according to this Clause “W” may suspend or restrict BANK 1’s access to the System, and may modify the System and its content, without notice, in its sole discretion. Also Masreqbank may place limits on BANK 1’s ability to transact over the System or decline to enter into transactions with BANK 1 over the System. BANK 1 should consult whether or not they agree to allow “W” to have such wide powers.|
|2.||Clause 5||Please note that the Laws of the United Arab Emirates govern the Agreement. Please look into the matter and consult whether BANK 1 want the Agreement to be governed by the Laws of the United Arab Emirates.|
|3.||Clause 6||Under this Clause, “W” in its sole discretion may refuse to act on any instruction and may from time to time restrict trading in certain financial instruments. This Clause effectively means that “W” may legally refuse to act on any instruction whatsoever of BANK 1. This Clause as such is prejudicial to BANK 1. Please consult whether BANK 1 wants to be bound by such a prejudicial Clause.|
|4.||Clause 8||Please note that “W” will not be responsible or liable for any damages that arise from BANK 1’s use of, or reliance on, calculators or similar analytical tools of the System.|
|5.||Clause 10||Under this Clause, among other things, “W” makes no representation or warranty express or implied (including warranties of merchantability, satisfactory quality, fitness for a particular purpose or non infringement) as to the System, the System Content or any other matter. So under this clause, even if BANK 1 finds that the System does not work at all, “W” will not be liable. Please confirm whether or not BANK 1 agrees to this prejudicial term.“W” also disclaims any obligation to keep the information available on or through the system up to date or free of errors or viruses or to maintain uninterrupted service or access. “W” also does not undertake to correct or to notify BANK 1 of any error or changes in the information displayed on the System. “W” also has no obligations to maintain particular hours of operation and may stop producing or updating all or any part of the system without notice. BANK 1 should confirm whether they want to be bound by these terms.
Under this Clause the Sole Liability of “W” on any cause of action arising out of this agreement or otherwise from BANK 1’s use of the System is limited to any loss or damage arising as a direct result of the gross negligence or willful misconduct of “W”. Apart from this “W” disclaims all other liability for loss of damage of any kind, including loss of profits, loss of data, direct, indirect, special or consequential loss or damage whether in contract tort (including negligence) statute or otherwise, even if “W” has been advised of the possibility of loss. BANK 1 should look into this matter and consult whether or not they want to release “W” from all these liabilities.
|6.||Clause 11||According to this Clause, the only indemnity provided by “W” is that “W” shall defend BANK 1 against claims that the System, when used as permitted by this Agreement infringes any patent or copyright or other proprietary right of any third party. On the other hand BANK 1 agrees to indemnify “W” with respect to any claim, damage, loss, cost or liability arising directly or indirectly from BANK 1’s use of or inability to use the System or any breach by BANK 1 of this Agreement. Under this Clause “W” has very limited liability but BANK 1 has substantial liabilities. Please make sure that BANK 1 realises its liabilities and consult whether they want to be bound by this terms.|
|7.||Clause 12(c)||According to this Clause BANK 1 agrees to let Mahreqbank or its representatives to monitor BANK 1’s use of the System and to monitor and tape-record telephone conversations with BANK 1 and BANK 1’s employees and agents concerning the System. Please make sure that whether or not BANK 1 actually want to allow “W” to monitor as mentioned.|
|8.||Clauses 13 (a) & (b)||According to these Clauses “W” may use, process and store any individual personal data that BANK 1 or their customers submit in connection with BANK 1’s use of the System. Moreover “W” may also transmit such data to its affiliates and third parties. Please ensure whether or not BANK 1 agrees to let “W” use such personal data.|
|9.||Clauses 13 (c)||According Clause 13 (c) BANK 1 represents and warrants that, if personal data (including sensitive personal data) belonging to BANK 1’s Employees or Customers or other individuals is provided to “W”, such persons are aware of and explicitly consent to the use of such personal data by “W”. So under this Clause BANK 1 have to inform their relevant employees or customers that “W” may use their personal information. Please ensure that BANK 1 is willing to perform this obligation.|
|10.||Clause 13(d)||Clause 13(d) is similar to Clause 12 (c) and our comments regarding Clause 12 (c) also applies to Clause 13(d).|
|11.||Clause 15(b)||According to this Clause BANK 1 may not assign this Agreement, but “W” may, in its sole discretion, assign this Agreement. BANK 1 should consult whether they want to be bound by this term.|
Except the above, the draft Agreement appears to be in order.
If you have any further query, please do not hesitate to contact us.
The Lawyers & Jurists
M.L.Hotel Tower Ltd, 208, Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.