End User License Agreement for
Mobile Banking



This End User License Agreement ("EULA") is an agreement between the user ("you" or "your") and Firethorn Holdings, LLC ("we", "our", "us") concerning your use of this software and all related documentation and services, and all updates and upgrades that replace or supplement the foregoing and are not distributed with a separate EULA (collectively, the "Software"). By clicking "Yes" or "Yes, I agree" or similar language presented on your handset, or by using the Software, you agree to the terms and conditions of this EULA.

I. Software

A. Description of Software

The Software provides a means to view and interact with personal financial information and other information. We receive this information from third parties and you grant us and our service providers permission to retrieve the information and to use the information to provide the services enabled by the Software. We reserve the right to change the nature of the services available through the Software at any time, and to refuse to make any transaction you request through the Software. The Software may not be available on all wireless devices and on all mobile service carriers or providers, and may not be accessible or may have limited utility over some mobile networks in situations such as, but not limited to, roaming.

B. Use of Software

The Software will not work unless you use it properly. You accept responsibility for making sure that you understand how to use the Software before you actually do so, and then that you always use the Software in accordance with all applicable instructions. You also accept responsibility for making sure that you know how to properly use your wireless device. We may change or upgrade the Software from time to time. In the event of such changes or upgrades, you are responsible for making sure that you understand how to use the Software as changed or upgraded. We will not be liable to you for any losses caused by your failure to properly use the Software or your wireless device.

C. Relationship to Other Agreements

The Software forms a connection across wireless carrier data networks to the computer systems of your financial institution(s) and other third parties ("Providers"). Information about your account(s) comes from, and all processing occurs on, the Providers' computer systems. We do not provide the information about your accounts that is displayed on your wireless device nor do we process any transactions. Accordingly, you agree that we are not responsible for the information displayed, or for any reliance on such information, or for any transactions or any failure to implement any transactions.

You have separate agreements with your Providers for their services, and you agree that you remain subject to those agreements. You also agree that you continue to be subject to the terms and conditions of your existing agreements with any other service providers, including but not limited to your mobile service carrier or provider. This EULA does not amend or supersede any of those agreements. Those agreements may provide for fees, limitations and restrictions which might impact your use of the Software (for example, your Provider may charge fees associated with the Software or your mobile service carrier may impose data usage or text message charges for your use of or interaction with the Software, including while downloading the Software or other use of your wireless device when using the Software), and you agree to be solely responsible for all such fees, limitations and restrictions. You acknowledge and agree that neither we nor your Provider are responsible for your mobile service carrier or provider's products and services. You acknowledge and agree that your mobile service carrier or provider is not the provider of any financial services available through or related to the Software, and is not responsible for any of the materials, information, products, or services made available to you in connection with the Software. Accordingly, you agree to resolve any problems with your Provider directly with that Provider without involving your mobile service carrier or us, and you agree to resolve any problems with your mobile service carrier directly with that mobile service carrier without involving your Provider or us.

II. MOBILE BANKING SOFTWARE LICENSE AGREEMENT

A. License

Subject to your compliance with this EULA, you are hereby granted a personal, limited, non-transferable, non-exclusive, non-sublicensable, and non-assignable license ("License") to download, install and/or use the Software on your wireless device within the United States and its territories and within those countries where export and use of the Software is permitted under United States law and under the laws of the location where the Software is used. In the event that you obtain a new or different wireless device, you will be required to download and install the Software to that new or different wireless device.

B. License Restrictions / Revocation

Your License shall be deemed revoked immediately upon (i) your termination with your Provider; (ii) your termination of service with your wireless carrier or provider, or switching wireless devices or numbers, or deletion of the Software from your wireless device; (iii) your noncompliance with this EULA; (iv) written notice to you at any time, with or without cause; or (v) us ceasing to provide service or ceasing to provide service for your Provider, wireless carrier, or wireless device. In the event this License is revoked for any of the foregoing reasons, you agree to promptly delete the Software from your wireless device, except that if you change carriers and/or numbers without changing wireless devices you may continue using the Software if you re-enroll under your new carrier/number. We reserve all rights not granted to you in this EULA. The provisions of Sections I, II.B, III, and IV of this EULA shall survive revocation of the License.

III. YOUR OBLIGATIONS

When you use the Software you agree to the following:

1. Account Ownership/Accurate Information. You represent that you are the legal owner of the accounts and related information which may be accessed via the Software. You represent and agree that all information you provide in connection with the Software is accurate, current and complete, and that you have the right to provide such information to us and that we have the right to use the information for the purpose of providing the services available in connection with the Software. You agree to not misrepresent your identity or your account information. You agree to keep your account information up to date and accurate. You agree that we and our service providers may send you, by short message service (with an opportunity to opt-out), e-mail, and other methods, communications relating to the Software, related items, and offers, including without limitation welcome messages, information, and surveys and other requests for information. You agree to use the Software carefully, to keep your passwords and PINs for using the Software confidential and secure and not share them with others, to check your statements and transactions regularly, and to report any errors to your Provider promptly.

2. Location Based Information. If you use any location-based feature of the Software you agree that your geographic location and other personal information may be accessed and disclosed through the Software. If you wish to revoke access to such information you must cease using location-based features of the Software.

3. Export Control. You acknowledge that the Software is subject to the United States (U.S.) government export control and economic sanctions laws and regulations, which may restrict or prohibit the use, export, re-export, or transfer of the Software. You agree that you will not directly or indirectly use in, or export, re-export, transfer, or release the Software to, any destination, person, entity, or end-use prohibited or restricted under such laws or regulations without prior U.S. government authorization as applicable, either in writing or as permitted by applicable regulation. Without limitation, you agree that you will not use the Software in any embargoed or sanctioned country such as Cuba, Iran, North Korea, Sudan, and Syria.

4. Proprietary Rights. You may not copy, reproduce, distribute, or create derivative works from the Software, and you agree not to reverse engineer or reverse compile or disassemble the Software.

5. User Conduct. You agree not to use the Software or the content or information delivered through the Software in any way that would: (a) infringe any third-party copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy, including any rights in the Software; (b) be fraudulent or involve the sale of counterfeit or stolen items, including but not limited to use of the Software to impersonate another person or entity; (c) violate any law, statute, ordinance or regulation (including but not limited to those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (d) be false, misleading or inaccurate; (e) create liability for us or our affiliates or service providers, or cause us to lose all or part of the services of any of our service providers; (f) be defamatory, libelous, unlawfully threatening or unlawfully harassing; (g) be perceived as illegal, offensive or objectionable; (h) interfere with or disrupt networks connected to the Software; (i) interfere with or disrupt the use of the Software by any other user; (j) use the Software to gain unauthorized entry or access to the systems or information of others, or (k) copy or display to third parties the information provided by the Software, except as required by the services available through the Software.

6. No Commercial Use or Re-Sale. You agree that the Software is for personal use only. You agree not to resell or make commercial use of the Software.

7. Indemnification. You agree to indemnify, defend, and hold us and our affiliates and service providers harmless from and against any and all third party claims, liability, damages, expenses and costs (including but not limited to reasonable attorneys' fees) caused by or arising from your use of the Software, your violation of this EULA, your violation of applicable federal, state or local law, regulation or ordinance, or your infringement (or infringement by any other user of your account) of any intellectual property or other right of anyone.

IV. ADDITIONAL PROVISIONS

A. Software Limitations

1. Neither we nor our service providers can always foresee or anticipate technical or other difficulties related to the Software. These difficulties may result in loss of data, loss or change of personalization settings, or other Software, service, or wireless device interruptions. You agree that neither we nor any of our service providers assumes responsibility for any disclosure of account information to third parties, or for the timeliness, deletion, misdelivery or failure to store any user data, communications, or personalization settings in connection with your use of the Software, and you hereby release us and our service providers from any liability connected with any such responsibility.

2. You agree that neither we nor any of our service providers assumes responsibility for the operation, security, functionality, or availability of any wireless device or mobile network which you use to access the Software, and you hereby release us and our service providers from any liability connected with any such responsibility.

3. Nothing in the Software is an offer to sell any of the components or devices used or referenced in connection therewith. Certain components for use in the U.S. are available only through licensed suppliers. Some components are not available for use in the U.S. Support services in the U.S. may be limited.

4. You agree to exercise caution when using the Software on your wireless device and to use good judgment and discretion when obtaining or transmitting information.

5. Information available via the Software may differ from the information that is available directly from your Provider, and may not be current or up-to-date. Information available directly through your Provider's website may not be available via the Software, may be described using different terminology, or may be more current than the information available via the Software, including but not limited to account balance information. The method of entering instructions via the Software may differ from the method of entering instructions through your Provider's website. You agree that we are not responsible for such differences, whether or not attributable to your use of the Software. Additionally, you agree that neither we nor our service providers will be liable for any errors or delays in the information presented, or for any actions taken in reliance thereon.

B. Cancellation

You may cancel your participation in the Software by unenrolling on your Providers' websites and deleting the Software. We reserve the right to cancel the Software at any time without notice. We may suspend your access to the Software at any time without notice and for any reason, including but not limited to your non-use of the Software. You agree that we will not be liable to you or any third party for any modification or discontinuance of the Software.

C. Use of Data

We and our service providers will use information you provide for purposes of providing the Software, the services it enables, and related functions such as billing and the communications set forth above, and to prepare analyses and compilations of aggregate customer data that does not identify you (such as the number of customers who signed up for the Software in a month).

D. Third Party Beneficiary

You agree that the Providers, our service providers, and the owners, operators, and merchant(s) of record of any software application store or kiosk/business ("Application Store") from which you may have downloaded or otherwise obtained the Software, may rely upon your agreements and representations in this EULA, and such Providers, service providers, and Application Store are third party beneficiaries of this EULA, with the power to enforce its provisions against you, including without limitation the liability limitations and warranty disclaimers below for any claim related to or arising out of the Software or this EULA.

E. Limitations and Warranty Disclaimers

WE AND OUR SERVICE PROVIDERS DISCLAIM ALL WARRANTIES RELATING TO THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS EULA, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT.

NEITHER WE NOR OUR SERVICE PROVIDERS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF PROFITS, BUSINESS, OR DATA, WHETHER BASED IN STATUTE, CONTRACT, TORT OR OTHERWISE, EVEN IF WE OR OUR SERVICE PROVIDERS HAVE BEEN ADVISED OF, OR HAD REASON TO KNOW OF, THE POSSIBILITY OF SUCH DAMAGES. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

UNDER NO CIRCUMSTANCE WILL THE TOTAL LIABILITY OF US OR OUR SERVICE PROVIDERS TO YOU IN CONNECTION WITH THE SOFTWARE OR RELATED SERVICES OR OTHERWISE IN CONNECTION WITH THIS EULA EXCEED $500.

YOU UNDERSTAND AND AGREE THAT ANY APPLICATION STORE FROM WHICH YOU MAY HAVE DOWNLOADED THE SOFTWARE MAKES NO WARRANTY AND SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY CLAIMS RELATED TO OR ARISING OUT OF THE SOFTWARE OR THIS EULA, INCLUDING BUT NOT LIMITED TO ANY CLAIMS (I) IN RELATION TO THE SALE, DISTRIBUTION OR USE OF THE SOFTWARE, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE, (II) FOR PRODUCT LIABILITY, (III) THAT THE APPLICATION FAILS TO CONFORM TO ANY LEGAL OR REGULATORY REQUIREMENT, (IV) UNDER CONSUMER PROTECTION LAWS, OR (V) SEEKING DEFENSE AND INDEMNITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

F. Disputes

WE EACH AGREE THAT ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THIS EULA, THE SOFTWARE, OR OUR SERVICES OR PRODUCTS, WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. Such arbitration shall take place in Atlanta, Georgia, and shall be administered by the American Arbitration Association under its Commercial Arbitration Rules (and not under any other or ancillary rules or procedures such as the Supplementary Procedures for Consumer-Related Disputes or the Wireless Industry Arbitration Rules). This includes any claims you may assert against other parties relating to services provided to you (such as our suppliers or retail dealers) in connection with this EULA, the Software, or our services or products. We each also agree that this EULA affects interstate commerce so that the Federal Arbitration Act and federal arbitration law apply. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR(S) MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS' FEES). The parties waive any right they may have to proceed on behalf of or against a class, and agree that any claim, counterclaim, cross-claim or the like shall be brought on an individual basis and not consolidated with any other party's claim, counterclaim, cross-claim or the like. The arbitration award shall be in writing, shall be signed by the arbitrator(s), and shall include a reasoned opinion setting forth findings of fact and conclusions of law. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Notwithstanding the immediately preceding paragraph or the Severability section below, if the foregoing prohibition on class arbitration is not enforced for any reason, then the immediately preceding paragraph also shall not be enforced and any class action claims shall be brought exclusively in the United States District Court for the Northern District of Georgia, Atlanta Division (or, if federal jurisdiction is lacking, in Fulton County Superior Court), and not in arbitration.

Any demand for arbitration or claim in litigation must be filed within one (1) year of the time the cause of action accrued, or the cause of action shall forever be barred.

G. Severability

If any provision of this EULA is declared invalid by a court or other tribunal of competent jurisdiction then, except to the extent set forth in the Disputes section above, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this EULA shall be valid and enforceable to the fullest extent permitted by applicable law.

H. Entire Agreement

This EULA constitutes the entire agreement between us and you relating to the Software and related services, supersedes any other agreements between us and you relating thereto, and may only be amended by a subsequent written agreement posted on our website (with subsequent use of the Software by you), sent to you by e-mail or SMS (with subsequent use of the Software by you), clicked through by you on your wireless device or otherwise, or signed by each of us.

[NOTE: If you accepted this EULA prior to 09-13-2009 01:44:16.141 AM PDT, the version you accepted differed slightly and is available at http://www.firethornmobile.com/legal/eula/MBEULA1a.pdf.]



The following additional terms and conditions apply to those portions of the Software that consist of Bouncy Castle Crypto APIs, Hessian binary web service protocol software, or Stefan Haustein Java Base64 code.


Third Party Agreements


The Software may use, call, or contain Bouncy Castle Crypto APIs which may be subject to the additional terms set forth below. References in the first set of terms below to software or Software refer to the Bouncy Castle Crypto APIs. References in the second set of terms below to software or Software refer to the BZIP2 library.

Copyright (c) 2000 - 2008 The Legion Of The Bouncy Castle (http://www.bouncycastle.org)

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

The Apache Software License, Version 1.1

Copyright (c) 2000 The Apache Software Foundation. All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

3. The end-user documentation included with the redistribution, if any, must include the following acknowledgment:

This product includes software developed by the Apache Software Foundation (http://www.apache.org/)."

Alternately, this acknowledgment may appear in the software itself, if and wherever such third-party acknowledgments normally appear.

4. The names "Apache" and "Apache Software Foundation" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact apache@apache.org.

5. Products derived from this software may not be called "Apache", nor may "Apache" appear in their name, without prior written permission of the Apache Software Foundation.

THIS SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE APACHE SOFTWARE FOUNDATION OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

This software consists of voluntary contributions made by many individuals on behalf of the Apache Software Foundation. For more information on the Apache Software Foundation, please see <http://www.apache.org/>.

Portions of this software are based upon public domain software originally written at the National Center for Supercomputing Applications, University of Illinois, Urbana-Champaign.

The Software also may use, call, or contain Hessian binary web service protocol software which may be subject to the additional terms below. References in the terms below to software or Software refer to the Hessian binary web service protocol software.

The Apache Software License, Version 1.1

Copyright (c) 2001-2004 Caucho Technology, Inc. All rights reserved.

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

3. The end-user documentation included with the redistribution, if any, must include the following acknowledgement:

"This product includes software developed by the Caucho Technology (http://www.caucho.com/)."

Alternately, this acknowledgement may appear in the software itself, if and wherever such third-party acknowledgements normally appear.

4. The names "Hessian", "Resin", and "Caucho" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact info@caucho.com

5. Products derived from this software may not be called "Resin" nor may "Resin" appear in their names without prior written permission of Caucho Technology.

THIS SOFTWARE IS PROVIDED "AS IS" AND ANY EXPRESSED OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL CAUCHO TECHNOLOGY OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

The Software also may use, call, or contain Java Base64 code from Stefan Haustein which may be subject to the additional terms set forth below. References in the terms below to software or Software refer to the Stefan Haustein Java Base64 code.

Copyright (c) 2002, 2003, Stefan Haustein, Oberhausen, Rhld., Germany

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR