SMARTPLAN ADVISOR
MEMBERSHIP AGREEMENT

IMPORTANT: READ THIS MERCHANT SERVICES AND LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE PROCEEDING. IN ORDER TO USE THE SMARTPLAN SOFTWARE AND WEBSITE (collectively, “the SmartPlan Advisor service”) YOU MUST CLICK ON THE "I AGREE" ICON AT THE END OF THIS SCREEN, INDICATING THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU DO NOT WANT TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PROMPTLY LOG-OFF OF THIS PROGRAM AND YOU WILL NOT BE CHARGED OR WILL RECEIVE A REFUND OF THE PRO RATA PORTION OF ANY FEE YOU MAY HAVE PAID FOR THE PORTION OF SERVICES NOT FURNISHED TO YOU AS OF THE DATE OF TERMINATION. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR AGREEMENT THAT YOU HAD WITH VWISE, AS DEFINED IN THE NEXT PARAGRAPH, CONCERNING THE USE OF THE SMARTPLAN SERVICE.

For purposes of this Agreement, the words "we", "us", "our" and "vWise" mean and refer to vWise, Inc., its subsidiaries and any agent, independent contractor or assignee that vWise may, in its sole discretion, involve in the provision of the SmartPlan Advisor service. The words "You" and "Your" refers to users of the SmartPlan Advisor service.

License Grant. vWise, Inc. (“vWise”), is the owner of all right, title and interest in the SmartPlan Advisor service. vWise hereby grants to You, and You accept, a nonexclusive, nontransferable license to use the SmartPlan Advisor service on a single computer or computer network owned, leased, or otherwise controlled by You. Except as expressly set forth above, as an essential condition in the utilization of the SmartPlan Advisor service contemplated by this Agreement, You may not copy, modify, reverse engineer, decompile, disassemble, assign, sublicense, transfer, pledge, lease, rent or otherwise share the SmartPlan Advisor service.

Ownership. You acknowledge and agree that vWise retains all title and ownership of the SmartPlan Advisor service and that vWise does not convey any title or ownership interest in the SmartPlan Advisor service to You. You further acknowledge and agree that the only right granted to You by this Agreement is the limited license to use the SmartPlan Advisor service according to the terms and conditions of this Agreement.

Term. This Agreement will commence immediately upon Your clicking on I AGREE at the end of this screen. Thereafter, this Agreement will continue on a month-to-month basis unless and until either party terminates this Agreement as provided herein. vWise may terminate this Agreement upon Your breach of any term of this Agreement. In the event vWise terminates the Agreement due to Your breach, You will forfeit all fees paid to vWise and will not be due a prorated refund.

New Services. vWise or its third-party licensors or licensees, may, from time to time, introduce new online services and information as part of the SmartPlan Advisor service. vWise will notify You of the existence of these new services. Access to such new services shall be subject to the terms and conditions of this Agreement.

Fees. Please contact your account executive, relationship manager or our customer service department for information regarding any monthly fee you may be charged for the SmartPlan Advisor service. Applicable fees, if any, do not include, and You shall be solely responsible for, any and all taxes of whatever nature, including without limitation, withholding taxes or other taxes imposed by foreign jurisdictions, federal, state and local taxes and surcharges applicable to the services rendered under this Agreement, excluding taxes based on the income of vWise. vWise shall not be liable for, and You shall pay directly and indemnify and hold vWise and its affiliates harmless from and against any and all liability for, all such taxes and/or surcharges.

Termination of Service.
vWise may terminate the service offered by the SmartPlan Advisor service hereunder at any time for any reason. In the event such termination is for any reason other than a breach of this Agreement by You, vWise will refund to You a pro rata share of any unearned prepaid fees, if applicable.

Equipment. You are responsible for and must provide all telephone and other equipment and services necessary to access the SmartPlan Advisor service.

Customer Support. vWise shall provide certain support and services to You, including: (i) production and distribution of user documentation which describes the SmartPlan Advisor service and (ii) telephone customer support services.
System Availability. You acknowledge and agree that, although You will generally have access to the SmartPlan Advisor service twenty-four hours per day, seven days per week (except in the event of a force majeure event), access may not be available on a continuous basis and the SmartPlan Advisor service will be subject to periodic downtime to permit hardware and/or software maintenance to take place.

Data Storage. vWise may, from time to time, delete, purge or otherwise dispose of Your account data which is over 365 days old. In addition, only a limited amount of data or information may be available online. Therefore, You are advised to print and download Your account data, for record keeping purposes, on a periodic basis. You specifically agree that vWise shall not be responsible for the deletion or disposal of your data or information from the SmartPlan Advisor service.

Copyrighted Material. The SmartPlan Advisor service (including the website), contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, and graphics. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, whether copyrighted, trademarked or proprietary, or otherwise. You may download copyrighted material solely for Your own use as contemplated under this Agreement. Except as expressly provided by copyright law, any copying, redistribution, or publication must be with the express permission of vWise and the owner(s) or such authorized person(s), if other than vWise. In any copying, the redistribution or publication of copyrighted material and any changes to or deletion of author attribution or copyright notice is expressly prohibited.

Your Responsibilities. You shall use the SmartPlan Advisor service and any components thereof for lawful purposes only. You shall not post or transmit through the SmartPlan Advisor service any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasion of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without vWise's express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by You that restricts or inhibits anyone other than You from using the SmartPlan Advisor service, as determined by vWise, will not be permitted and is cause for immediate termination of this Agreement.

Security of Information. vWise will take all commercially reasonable steps to maintain the security of the SmartPlan Advisor service. vWise will provide the details related to such security to You upon request. However, You recognize and agree that there is no guarantee of absolute security of information that is communicated over the Internet, and that the foregoing security measures may change over the term of this Agreement. You acknowledge that all information transmitted and received through the Internet or other electronic means is subject to unauthorized interception, diversion, corruption, loss access or disclosure.

Compliance with Laws. You shall comply fully with the requirements of all applicable federal, state and local laws and regulations. Furthermore, You are solely responsible for monitoring legal development applicable to the operation of Your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program. Please read our Privacy Statement for further terms and information.

Disclaimers. vWise, its subsidiaries and their respective employees, officers, directors, affiliates, agents, licensors, licensees do not make and hereby expressly disclaim any representation or warranty (i) that access to the SmartPlan Advisor service will be uninterrupted or error free, (ii) that security breaches will not occur with respect to any information communicated through the SmartPlan Advisor service the Internet, or any common carrier communications facility, (iii) as to the results that may or may not be obtained by You in connection with Your use of the SmartPlan Advisor service. vWise, ITS SUBSIDIARIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, THIRD PARTY SERVICE PROVIDERS, AGENTS, LICENSORS, LICENSEES AND THE BANK DO NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) REGARDING THE MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE SMARTPLAN SERVICE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS AGREEMENT AND THE SMARTPLAN SERVICE ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS" BASIS.

Indemnification. You agree to indemnify and hold vWise, its subsidiaries and their respective employees, officers and directors, licensors, and licensees harmless from and against any claims and expenses, including reasonable attorneys' fees, related to any breach of this Agreement by You or any negligence or willful misconduct with respect to Your use of the SmartPlan Advisor service.

Limitation of Liability. You acknowledge and agree that neither vWise, its subsidiaries nor its licensees or licensors shall be liable to You for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of the SmartPlan Advisor service the Internet, or any communications network, facility or equipment beyond vWise's, its licensors, or a third party provider's reasonable control, whether or not attributable to one or more common carriers; (iii) Your failed attempts to access the SmartPlan Advisor service or to complete transactions via the SmartPlan Advisor service; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by You; (v) any damages resulting from any delays and/or losses arising in connection with the services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by the SmartPlan Advisor service or vWise.

Not withstanding anything to the contrary in this Agreement or elsewhere, vWises and/or its licensors' cumulative liability to You for any claim related to this Agreement and Your use of the SmartPlan Advisor service (whether arising from tort, statute, contractor otherwise) shall in all cases be limited to the actual, direct and proven out-of-pocket losses, damages or expenses suffered or incurred by You arising from vWise's willful misconduct or gross negligence. Furthermore, vWise's or its licensors' cumulative liability to You shall not, in any case, exceed the fees paid solely under this Agreement to vWise by You during the month preceding the month in which the claim arose.

Not withstanding anything to the contrary in this Agreement or elsewhere, in no event shall vWise or its licensors be liable to You or to any third party for any indirect, special, incidental, consequential, punitive or unproven losses, damages or expenses of any kind, including, without limitation, lost profits or loss of goodwill arising from the use or inability to use the SmartPlan Advisor service including, without limitation, the inability access your data or information generated or stored on the SmartPlan Advisor service, and regardless of whether such claim arises in tort, in contract or by statute or regulation.

Both vWise and You acknowledge and agree that the provisions and limitations of this Section are of the essence of this Agreement and that absent them, neither vWise nor You would have entered into this Agreement.

Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of California, excluding its conflict of law provisions.

Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement.
No Waiver. The failure of either party to enforce any rights granted by this Agreement or to take action against the other party in the event of any breach of this Agreement shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

Amendment. This Agreement may be modified, amended or replaced by vWise from time to time upon notice to You on the SmartPlan Advisor service website or other form of written notice; provided, however, that if vWise sends You any such notice, via electronic communication, a posting on this website or otherwise, of any such modification, amendment or replacement, You confirm Your acceptance of the modification, amendment or replacement by not closing and/or by continuing to use and access Your account on the SmartPlan Advisor service.

Force Majeure. vWise shall not be liable for any delay or failure to carry or make continuously available any vWise website and/or the SmartPlan Advisor service if such delay or failure is due to any cause beyond the reasonable control of vWise, vWise or any of its third party providers, licensors or licensees, including without limitation restrictions of law or regulations, labor disputes, acts of God, mechanical or electronic breakdowns, telecommunication facilities breakdowns or software bugs, errors or failures. vWise's obligations hereunder are subject to its ability to obtain and maintain any and all required governmental licenses, permits or other authorizations, and their ability to comply with any and all laws, regulations, orders and other governmental directives which may be imposed on the Internet, any vWise website or the SmartPlan Advisor service with respect to any of the foregoing.

Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. This Agreement is the complete and exclusive statement of the Agreement between You and vWise and supersedes any prior agreements, proposal, representation or warranty between You and vWise regarding Your use of the SmartPlan Advisor service.