����������

Mobiliti Services Terms

1. Definitions. Unless defined elsewhere in the Agreement, terms appearing in initial capital letters shall have the following meanings:

(a) “Mobiliti Marks” means the trademarks, service marks, logos and other distinctive brand features relating to the Mobiliti Services that ���������� makes available to Client hereunder.

(b) “Mobiliti Service(s)” are a single platform, mobile banking offering comprised of one or more of the following distinct access modes:

(i) “Mobile Browser” means a secure application that allows users to access Internet content on behalf of Client via mobile phones with a carrier-assigned mobile phone number.

(ii) “Short Message Service” or “SMS” (text messaging) means a messaging service using a text message format that allows users of mobile phones with a carrier-assigned mobile phone number, to send and receive simple text messages to each other, usually limited to 160 characters.

(iii) “Smartphone Application” or “Smartphone App” means an application resident on mobile phones (as identified on ����������’s current certified device list) with a carrier-assigned mobile phone number that supports connectivity and transactions with a single financial institution.

(iv) “Tablet Application” or “Tablet App” means an application designed specifically to be resident on certain tablet-like mobile devices (as identified on ����������’s current certified device list) that supports connectivity and transactions with a single financial institution.

(c) “SMS Services” means a hosted network service that supports the use of Short Codes for two-way delivery of SMS messages via mobile devices supported by the Mobiliti Services. For purposes of the SMS Services hereunder:

(i) “Content” means information, text, data, color or black and white images.

(ii) “Service Provider” means one or more third party SMS aggregation service providers for the provision of all or some of the SMS Services.

(iii) “Short Code” means a combination of fewer than ten digits to which SMS Users can direct text messages from their wireless equipment and which a carrier translates into a valid SMPP address for delivery to the Service Provider or its affiliates in order for SMS Users to order and/or receive mobile Content.

(iv) “SMS Users” means Client’s Users who are authorized and enrolled for the SMS Services.

(d) “Terms of Service” means a written agreement Client will enter into with its Users regarding the Mobiliti Services.

(e) “User(s)” means the end customer(s) of Client who have been approved for enrollment in the Mobiliti Services pursuant to procedures agreed to between ���������� and Client.

2. ���������� Responsibilities.

(a) Hours. ���������� will use reasonable efforts to make the Mobiliti Services available to Client 24 hours a day, 7 days a week, subject to scheduled maintenance, scheduled downtime, and causes beyond the reasonable control of ����������. ���������� shall have no obligation to address or support: issues caused by Client alterations or modifications to the Mobiliti Services; services that are not currently supported; Mobiliti Services problems caused by Client’s negligence, abuse, or misapplication; use of the Mobiliti Services other than as specified hereunder or the Mobiliti Services documentation; or Mobiliti Services problems caused by Client’s failure to perform its responsibilities, including as listed below.

(b) Training. ���������� will provide Client standard training during the initial implementation of the Mobiliti Services. Client’s trainers will be responsible for training Client’s associates and/or Users. Training will include Mobiliti Services registration and self-service applications, as well as training on the Mobiliti Services customer care tool. If Client requests additional training, such additional training will be made available to Client at ����������’s then current professional services rates.

(c) Support. ����������, or its Affiliates or agents, will provide support to Client as set forth hereunder, and Client is responsible for first tier support to its Users. ���������� will log an initial technical support inquiry from Client and initiate the troubleshooting process. Client agrees to provide all User technical support and ���������� will provide second level technical support to Client’s support representatives during ����������’s standard hours of operation, unless otherwise agreed upon by the parties. Technical support, as referred to herein, means ���������� will take an initial technical support inquiry from Client and initiate the troubleshooting process. ���������� will use commercially reasonable efforts to determine the source of support issues and to remedy the issues. Unless otherwise agreed in writing, ���������� will not provide onsite support.

(d) SMS Services. With respect to Client’s receipt of SMS Services from ����������, the following terms and conditions shall apply:

(i) ���������� shall provide Client with certain SMS Services for Client’s offering of the SMS Services to United States resident SMS Users. To the extent an SMS User has a plan with a carrier that provides for access and use of the SMS Services with their wireless devices while such SMS User is outside of the United States, such access and use of the SMS Services is permitted hereunder. ���������� may utilize one or more Service Providers for the provision of all or some of the SMS Services; provided that ���������� shall remain liable for the performance of such Service Providers. ���������� shall provide Client with no less than 90 days’ notice if ���������� changes Service Providers in a manner that necessitates material changes to Client’s implementation. ���������� may terminate the SMS Services upon notice to Client if ����������’s agreements with its Service Provider(s) for SMS Services terminate. Prior to such termination, ���������� will use commercially reasonable efforts to replace such Service Provider(s).

(ii) Notwithstanding anything set forth in the Agreement or hereunder, the following additional terms and conditions shall apply to the SMS Services:

A. Acceptable Use Policy. Client shall not use, and shall not permit Client’s SMS Users, employees, agents, representatives and third party contractors (collectively, “Client Users”) to use the SMS Services to transmit or disseminate any messages that violate the terms of this Agreement or for any illegal, fraudulent, unauthorized purpose. The foregoing notwithstanding, Client is solely responsible for any and all activities that occur on its SMS Services account, including the actions of Client Users when using the SMS Services. Client agrees to immediately notify ���������� of any unauthorized use of the SMS Services or any other breach of security known to Client and shall cooperate with ����������, Service Provider and/or the relevant telecommunications carriers in investigations and other actions taken for suspected or known violations of this Agreement, including any incidents of spam by Client or any User.

B. Indemnification.

(1) ����������’s obligations to defend, indemnify and hold parties harmless in connection with intellectual property rights, as they apply to the SMS Services, exclude any open source components or Client specifications used in performance of or in connection with the SMS Services.

(2) Client will indemnify, defend and hold ����������, its suppliers, licensors, and any wireless service providers related to the provision of the SMS Services (“���������� Indemnitees”) harmless from and against all third party claims, liabilities, damages, losses, costs and expenses, including attorneys’ fees, expert witness fees and costs, incurred by any ���������� Indemnitee as a result of any illegal acts, fraud, misrepresentation or willful misconduct regarding the use of the SMS Services by any Client User, or any violation of or noncompliance with the SMS Service terms by Client or any Client User.

C. Limitation of Liability. FISERV’S AGGREGATE LIABILITY TO CLIENT AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THE SMS SERVICES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO FISERV FOR THE SMS SERVICES IN THE 12 MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.

D. Disclaimer of Warranties. NEITHER FISERV, ITS SUPPLIERS, NOR ANY CARRIER WILL BE LIABLE TO CLIENT OR ANY USER FOR ANY MESSAGES DELETED OR NOT DELIVERED USING THE SMS SERVICES, REGARDLESS OF THE REASON FOR DELETION OR NONDELIVERY INCLUDING, WITHOUT LIMITATION, MESSAGE PROCESSING OR TRANSMISSION ERRORS. NEITHER FISERV, ITS SUPPLIERS, NOR ANY CARRIER MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE SMS SERVICES, OR THAT THE SMS SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS OR NOT INFRINGE THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SMS SERVICES ARE PROVIDED ON AN “AS IS,” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND, AND FISERV EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SMS SERVICES, INCLUDING WARRANTIES OF SECURITY, QUALITY, RELIABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE.

E. Price Changes. ���������� reserves the right to change prices for the SMS Services to the extent that price changes are imposed by carriers, Short Code providers/licensors, mobile industry associations and regulatory/governmental authorities (collectively, “Service Impacting 3rd Parties”) or by Service Provider. Such price changes will be announced to Client at least 30 days prior to the effective date of a price change or with as much advance notice as practicable under the circumstances. If such a change represents an increase in any of the prices previously in effect for any of the SMS Services covered hereunder, then Client may notify ���������� in writing within 30 days after the effective date of such price change of its desire to terminate the SMS Services as of the date set forth in such notice (which date shall be within 30 days of the effective time of the price change, “Price Change Termination Period”). For the avoidance of doubt, the new prices shall apply during the Price Change Termination Period.

F. Client Data. Client acknowledges that, in connection with Client’s and Client Users’ use of the SMS Services, ���������� may receive domain names, Client User names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data provided by Client Users (collectively “Client User Information”). ���������� shall not use or disclose such Client User Information except as necessary or required, as determined by ����������, in any of the following instances: (a) as required by law, regulation or third parties (e.g., wireless service providers) involved in providing the SMS Services; (b) to provide and/or invoice Client for the SMS Services; and/or (c) to protect ���������� and Service Provider, its facilities, network, service, customers or third parties.

G. Client Equipment and Software; Third Party Charges. Client shall be solely responsible for the installation, operation, maintenance and compatibility of any equipment and software not provided by ���������� (“Client Equipment”), and ���������� shall have no responsibility or liability with respect to any third party products not provided by ����������. If the SMS Services are impaired by Client Equipment or software not provided by ����������, there shall be no reduction in the fees payable to ���������� hereunder and the application of any service level agreement that may be offered by ���������� from time to time (if any) shall be suspended. ���������� is not responsible for any charges, including interconnection, access, termination, pager, wireless, or landline phone charges, the Client, any Client User, or any recipient of a message incurs as a result of the use of the SMS Services. Client shall advise Client Users that senders and recipients of messages using the SMS Services may incur third-party charges (e.g., wireless service provider) for which they will be responsible.

H. Third Party Factors and Span of Control. Client acknowledges that ����������’s provision of the SMS Services is dependent on the facilities, networks, connectivity, or any acts and/or omissions of third party wireless service providers, governmental entities and other third parties (collectively, the “Third Party Factors”). Client acknowledges that the performance of the SMS Services may be affected by such Third Party Factors and that Third Party Factors are outside ����������’s control. FISERV WILL HAVE NO LIABILITY FOR ANY REDUCTION, INTERRUPTION, TERMINATION OR SUSPENSION OF THE SMS SERVICES TO THE EXTENT CAUSED BY THIRD PARTY FACTORS OR ANY OTHER FACTOR OUTSIDE OF FISERV’S CONTROL.

I. Termination.

(1) Termination. ���������� may modify, suspend, limit, restrict, and place conditions on the SMS Services, and/or terminate SMS Services, without advance notice under any of the following conditions: (i) if necessary to comply with applicable laws, regulations, or requirements of Service Impacting 3rd Parties related to the SMS Services; (ii) if a law or regulatory action prohibits or significantly impairs or makes impractical the provision of the SMS Services; (iii) if there is use of the SMS Services which ���������� determines, upon the advice of legal counsel, may create a material liability to ���������� or may be fraudulent, illegal, improper or in violation of these terms; and/or (iv) if Client ceases to do business as an ongoing business concern or becomes subject to proceedings of bankruptcy, receivership, insolvency, liquidation or assignment for the benefit of creditors. If ���������� modifies, suspends, limits, restricts or places conditions on the SMS Services pursuant to subsection (i), (ii) or (iii) above, and Client determines, in its sole discretion, that such modification, suspension, limitation, restriction or conditions are not acceptable to Client, Client may terminate the Mobiliti Services upon delivery of a written notice of termination to ����������.

(2) Effects of Termination. Upon the expiration or termination of SMS Services for any reason: (i) Client shall cease using the SMS Services; (ii) Client is solely responsible for procuring any new or replacement services for the SMS Services; and (iii) Client shall remain obligated for any fees and costs accrued prior to the termination date and any other amounts owed by Client as provided hereunder and the Agreement.

J. Survival. Any payment obligations which accrued prior to the termination or expiration of the Agreement or SMS Services, and sections of these terms that by their nature continue in force shall survive the expiration or termination of the Agreement or this Appendix.

3. Client Responsibilities.

(a) In connection with its receipt of the SMS Services, Client shall not permit the SMS Services to be used to transmit or disseminate any messages that violate the terms set forth herein or for any illegal, fraudulent, or unauthorized purpose.

(b) Client will enter into a written agreement with its Users requiring Users to follow the terms of service associated with the Mobiliti Services. As part of ����������’s standard Mobiliti Services documentation it generally provides to its financial institution clients, ���������� may make available to Client sample general terms and conditions that Client may consider in establishing these erms of service. Client will not substantially modify such terms and conditions without the prior, written approval of ����������, such approval not to be unreasonably withheld. Furthermore, if ���������� provides sample terms and conditions and Client elects to modify such terms and conditions, then ���������� will not be (i) obligated to host or support such modified terms and conditions, unless the parties agree otherwise in writing, or (ii) responsible for any User complaints or legal claims that result from such modifications.

(c) Client must validate the identity of its Users and will complete and perform any and all procedures it determines, in its sole discretion, are necessary to validate the identity of its Users.

(d) Mobile carriers may from time to time suspend access to the Short Code at the carrier’s discretion for reasons which may or may not be caused by Client. Neither ���������� nor its Service Providers shall be liable in the event of any suspension as a result of a Short Code issue and/or suspension.

(e) From time to time, Client may be required to provide ���������� with a reasonable and acceptable number of production test accounts that have all available account types and functions represented in each one for resolution of support related issues.

(f) Upon any termination or expiration of the Mobiliti Services, Client shall continue to be responsible for any applicable data communications or messaging fees until all circuits are disconnected and the telecommunications company or Service Provider ceases invoicing ����������.

(g) Client will make corresponding changes to its systems to use the then-current release of the Mobiliti Services (including the Smartphone Apps and Tablet Apps), including maintaining compatibility between any third party software, system or product, with the ���������� System.

4. Additional Terms.

(a) Pre-requisites. The Mobiliti Services shall immediately terminate upon the termination of the online banking services with which the Mobiliti Services are integrated, and Client shall pay any early termination fees set forth in the Agreement or ASP Services Exhibit, if applicable.

(b) Aggregation. Client agrees ���������� may aggregate Client’s non-personal User data and information relative to the use of the mobile banking products and services by Client's Users and their mobile devices with similar data from other ���������� customers for the purposes of enhancing ���������� products and adoption techniques.

(c) Client-Branded Smartphone App and Tablet App. The Smartphone App(s) and Tablet App(s) shall be implemented and supported pursuant to ����������’s standard procedures, which procedures also require Client to enter into developer licenses directly with the applicable supported third party online stores.

(d) Mobiliti Branding. Subject to the terms and conditions of the Agreement, if Client elects to use “Mobiliti” as its customer-facing brand for the Mobiliti Services, (i) ���������� grants to Client during the term a non-exclusive, nontransferable right to display the Mobiliti Marks, solely in connection with Client's use of the Mobiliti Services; and (ii) Client will display the Mobiliti Marks on all Web site pages of Client's Web site and mobile banking applications that contain links or references to the Mobiliti Services and all marketing materials for the Mobiliti Services in accordance with this Section. Client will comply with the Mobiliti Marks guidelines provided to Client (as updated from time to time). All ownership in or to the Mobiliti Marks and all goodwill associated with Mobiliti Marks will remain with and inure to the benefit of ����������. Client will not use any of the Mobiliti Marks in any manner likely to confuse, mislead, or deceive the public. If in its reasonable judgment ���������� determines that Client's use of the Mobiliti Marks dilutes or diminishes the Mobiliti Marks or the goodwill, quality, or services associated with any of the Mobiliti Marks, then ���������� will give notice to Client of such issues, and if the issues are not resolved within 15 business days of Client's receipt of such notice, then ���������� will have the right to terminate Mobiliti Marks license in this Section upon notice to Client. Client will have no right to sublicense, transfer or assign the license rights in this Section without the prior, express, written approval of ����������.

(e) Bill Capture. The Mobiliti Services may include access to functionality that, in conjunction with the CheckFree bill pay services, allows Users to take pictures of paper bills and send such pictures through for data extraction (“Bill Capture”). In no event will ���������� be liable for any results from Users’ use of extracted data from Bill Capture, including without limitation any late fees for payments sent to an improper payee or improper account.

��