Common use of Comparative Negligence Clause in Contracts

Comparative Negligence. If your failure to exercise ordinary care substantially contributes to the forgery or alteration of an item which is paid against this Account, contributes to a loss due to a mistake in a deposit or charge against the Account, you will be precluded from asserting such forgery or alteration and/or mistake against Bank. If Bank asserts such a preclusion, and you establish that Bank’s failure to exercise ordinary care substantially contributed to the loss resulting from the payment of the forged or altered item(s), and/or other mistake, the loss shall be allocated between Depositor and Bank on a comparative basis. Specifically, your acts and omissions which substantially contribute to the presentment and payment of any forged or altered item(s) and/or in the failure to notify Bank of the mistake will be compared to the acts or omissions of Bank to determine who should bear the loss or whether the loss should be allocated between you and Bank. Notwithstanding this comparative negligence standard, Bank will not be liable if items are forged or altered such that the forgery or alteration could not have been detected by a bank exercising ordinary care. Notwithstanding anything contained herein to the contrary, Bank will never be liable for, or responsible in any way for, any percentage of any alleged loss or damages purportedly resulting from an alteration, forgery, counterfeit items, unauthorized signature, and/or endorsement, or any other irregularity on any item, and/or in the Account, unauthorized Remotely Created Item, and/or electronic debit, which is greater than the percentage of any alleged loss or damages proximately caused by Bank’s failure to exercise ordinary care, if any, regardless of the percentage of proximate causation, or even the complete absence thereof, of Depositor or any Authorized Signatory.

Comparative Negligence. If Except where contrary to law, if your failure to exercise ordinary care substantially contributes to the forgery or alteration of an item which is paid against this Account, contributes to a loss due to a mistake in a deposit or charge against the Account, you will be precluded from asserting such forgery or alteration and/or mistake against Bank. If Bank asserts such a preclusion, and you establish that Bank’s failure to exercise ordinary care substantially contributed to the loss resulting from the payment of the forged or altered item(s), and/or other mistake, the loss shall be allocated between Depositor and Bank on a comparative basis. Specifically, your acts and omissions which substantially contribute to the presentment and payment of any forged or altered item(s) and/or in the failure to notify Bank of the mistake will be compared to the acts or omissions of Bank to determine who should bear the loss or whether the loss should be allocated between you and Bank. Notwithstanding this comparative negligence standard, Bank will not be liable if items are forged or altered such that the forgery or alteration could not have been detected by a bank exercising ordinary care. Notwithstanding Except where contrary to law, notwithstanding anything contained herein to the contrary, Bank will never be liable for, or responsible in any way for, any percentage of any alleged loss or damages purportedly resulting from an alteration, forgery, counterfeit items, unauthorized signature, and/or endorsement, or any other irregularity on any item, and/or in the Account, unauthorized Remotely Created Item, and/or electronic debit, which is greater than the percentage of any alleged loss or damages proximately caused by Bank’s failure to exercise ordinary care, if any, regardless of the percentage of proximate causation, or even the complete absence thereof, of Depositor or any Authorized Signatory.