iBanking Agreement

Internet Banking Agreement                                                                                                                                                                                                                                                                                Revision 11/19

This Internet banking agreement states the terms and conditions that apply to Foresight Bank’s Internet banking service (“iBanking”). This agreement supplements (and does not replace) the terms and conditions that apply to any accounts and any other services with Foresight Bank. This agreement is also subject to applicable federal laws and the laws of the State of Minnesota (except to the extent this agreement can and does vary such rules or laws).

Please read this agreement carefully. By requesting and using the iBanking service, you agree to be bound by the terms and conditions contained in this agreement, and you authorize the Bank and third parties acting on behalf of the Bank to provide the services described in this agreement.

1. Definitions and Descriptions of iBanking Services

Throughout this agreement, “you” and “your” mean each person and legal entity/organization that establishes an iBanking account with Foresight Bank and those who are authorized to use the iBanking service. “We”, “us”, and “our” refer to Foresight Bank (the “Bank”). All references to a time of day in this agreement are references to the time in Plainview, Minnesota. The following definitions also apply to this agreement.

1. “iBanking” is our Internet-banking service that allows you to obtain information on your Account(s) and conduct certain transactions involving your Accounts.
2. “Bill Pay” is the iBanking service that allows you to pay bills to third parties. You must be approved for iBanking and have a qualified checking Account to be able to enroll in the Bill Pay service.
3. “Alerts” notify you of transactions involving your Account(s).
4. “Transfer” is a transaction involving only two Accounts with the Bank.
5. “Mobile iBanking” means the application designed for use on Mobile Devices. We do not guarantee the functionality of the Mobile iBanking service on all wireless devices, but it is designed to provide general compatibility, regardless of hardware and mobile service provider.
6. “Mobile Device” means a web-enabled mobile phone or device whose network allows Secure Sockets Layer (SSL) traffic and supports Wireless Application Protocol (WAP) browsers.
7. “Mobile Deposit” is the service that allows you to deposit checks to eligible deposit Accounts with your Mobile Device.
8. “Access Credentials” means any combination of log-in identification, password, personal identification number, and other methods that are approved or established by the Bank and designed to limit iBanking access to authorized users.
9. “Account” or “Accounts” means Bank accounts on which you have authority to conduct transactions through iBanking, and that you have designated to be included in your iBanking account. Any account that requires more than one signature for withdrawals or that has any other type of restriction on it is not eligible for use in the iBanking system.
10. “Business Account” means an Account not used primarily for personal, family, or household purposes.
11. “Consumer Account” means an Account owned by at least one natural person or a trust and established primarily for personal, family, or household purposes.
12. “Business Days” means Monday through Friday, excluding federal holidays observed by us.

2. Eligibility, Registration, and Access to iBanking

To use the iBanking service, you must have an eligible Account open with the Bank and register for iBanking. Registration requires you to agree to the terms of this agreement and to the attached “Terms of Use and Privacy Policy.” You will gain access to the iBanking service through the use of your Internet-enabled device, your Internet provider, and your Access Credentials. Use of Mobile iBanking requires a Mobile Device.

3. Availability

We will use reasonable efforts to make iBanking available for your use on a continuous basis, although system maintenance and Internet, cellular, or communications system unavailability may occasionally restrict your access. We may elect to discontinue any or all of the iBanking features at any time. If we choose to do so, we will endeavor to provide you with reasonable advance notice. We reserve the right at all times to take actions (including denial of access to iBanking without prior notice) to protect our systems and information, and to prevent what we reasonably believe to be fraudulent or illegal activity.

4. Security

You agree to comply with all current and future security procedures that Bank directs you to use. You acknowledge and agree that the security procedures constitute commercially reasonable measures under applicable law for initiating Transfers, making payments, making deposits, and accessing confidential banking information. You should keep your Access Credentials, Mobile Device, and any hardware used to access iBanking secure. We may amend security procedures at any time and we may require you to periodically change your Access Credentials to access the Service. We will endeavor to provide advance notice of such changes, but security concerns may require us to implement changes without advance notice.

Your use of iBanking is at your own risk and you acknowledge and agree that it is your responsibility to protect your Access Credentials, Mobile Device, and hardware against unauthorized attempts to access iBanking. Any person having access to your Access Credentials will be able to access iBanking and perform all transactions, review Account information, and use the iBanking Bill Pay service. You acknowledge and agree that you shall be bound by any and all transactions initiated through the use of your Access Credentials, whether authorized or unauthorized, to the fullest extent allowed by law, unless and until you have notified us, according to notification procedures prescribed by us, that your Access Credentials have been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. Providing Access Credentials to another person effectively constitutes a grant of authority to access your Accounts under Federal Reserve Board Regulation E.

We will use commercially reasonable efforts to secure the Bank’s iBanking-related hardware and software against access by unauthorized persons and to prevent the introduction of any malicious code. However, no security system is failsafe. Despite our efforts, the security of iBanking could be compromised. We will provide you with notice if your information is the subject of a security breach as required by applicable law.

5. Transaction Processing

The following limitations may apply to transactions initiated through the iBanking service.

1. Contractual and regulatory transaction limitations that apply to your Account(s) also apply to iBanking-initiated transactions. For example, you must have sufficient available funds in any Account from which you instruct us to make a payment or transfer, and Federal regulations limit the number of iBanking transfers out of savings and Money Market Accounts to six per month. If a transfer or payment overdraws any of your Accounts, non-sufficient funds charges may apply.
2. For security reasons, there may be a limit on the number, frequency, and dollar amount of the transactions you can make using iBanking. These limits are subject to change from time to time.
3. No payments may be made to payees outside the United States.
4. You will have limited ability to cancel iBanking transactions once they are initiated. Depending on the circumstances, we might have the ability to cancel iBanking transactions for you, so contact us if you need such assistance. We will make reasonable efforts to cancel the transaction for you, but if we are unable to do so, we may process the transaction and shall not be liable to you or any third party for any harm suffered as a result.
5. The Bank and its technology providers have transaction cut-off times that will determine on which Business Day a transaction will be completed and whether a previously initiated transaction can be cancelled. A transaction initiated after an applicable cut-off time will be completed on the next Business Day. Contact us if you have a question regarding transaction cut-off times because they are subject to change without advance notice.

6. iBanking Bill Pay Service

You may enroll for the iBanking Bill Pay service if you have a qualifying checking Account. If you enroll in the Bill Pay service, you authorize the Bank and its subcontractors to initiate ACH (Automated Clearing House) and check withdrawals to make payments out of your designated checking Account(s). If you wish to remove Bill Pay, please notify the Bank in writing.

The following limitations apply to Bill Pay transactions. Bill Pay payments may be made only to payees with a payment address in the United States. You may not make a payment of alimony, settlement of brokerage accounts, child support, taxes, or any other governmental fees or court-directed payments through the Bill Pay service. Bill Pay payments might not be sent if funds are not available and overdraft charges may apply if a Bill Pay service payment overdraws your Account.

Once you successfully schedule a Bill Pay payment, the Bill Pay system may give an indication of the anticipated delivery date, but the Bank and its subcontractors are not responsible for the timely delivery of postal mail or the handling of payments by a third party (such as the failure of a payee to properly post a payment to your account).

7. Mobile Deposit

This section applies to the Mobile Deposit service.

1. “Check” means an Original Check, as defined in Regulation CC and Check 21 and does not include a Substitute Check or a remotely created check.
2. “Check 21” means the Check Clearing for the 21st Century Act, and Subpart D (and, to the extent applicable, Subpart A) of Federal Reserve Board Regulation CC.
3.  
4. “IRD” or “Image Replacement Document” means a Substitute Check as defined in Check 21 or the paper reproduction that will be created when an Item cannot be converted to an Electronic Transaction.
5. “Item” means a Check, money order, cashier’s check, official check, U.S. Treasury check, or any other payment instrument drawn on or payable through an office of a United States financial institution from a payor to you that is submitted for deposit to an Account through the Mobile Deposit Service.

1. You authorize the Bank (and any other financial institution to which an Item is sent for processing) to convert Items to IRDs and to transmit Items as images for processing.
2. Your Responsibilities. You are solely responsible if any Item (for which you have been given provisional credit) is returned or reversed, and neither the Bank nor its subcontractors shall be liable or responsible for any such return or reversal. You acknowledge that all credits received for deposit are provisional, subject to verification and final settlement. Any dishonored Items will be returned as an image of the original or a substitute check as the charged-back Item. Information relating to the processing of an Item may be received prior to final posting and confirmation and is subject to correction, and it is for information purposes only and may not be relied upon. You agree that Bank shall have no liability for the information communicated to you about an Item, the processing of an Item, or both.
3. Terms and Conditions. You agree to the following terms and conditions. You will submit an Item for deposit only if you are authorized to enforce the Item or if you are authorized to obtain payment on behalf of a person entitled to enforce the Item. You will not alter any Item. You will endorse each submitted Item in a restricted format as directed by the Bank. You will submit an Item for deposit only once and you will not attempt to seek payment or to deposit the original Item after submitting it for deposit using the Mobile Deposit Service. You agree that the Bank will impose daily and monthly limits on the number of Items and dollar amount of Items that may be submitted using the Mobile Deposit service. These limits are subject to change.
4. In order for an Item to be processed for deposit, the endorsement area will need each payee’s signature along with the phrase, “For Mobile Deposit Only at Foresight Bank.”
5. Handling of Transmitted Items. After submitting an Item for deposit, you are responsible for retaining each Item in a safe and secure environment in accordance with applicable laws for 90 days after receiving confirmation from Bank that the image of the Item has been received. After the 90-day period has passed, you shall shred or otherwise destroy all Items. You shall properly store each Item and take appropriate measures to ensure it is not deposited a second time. You agree to promptly (but in any event within 5 Business Days) provide any retained Item to Bank as requested to aid in the clearing and collection process, to resolve claims by third parties with respect to any item, or if Bank otherwise deems it necessary.
6. Account Statement Examination. All deposits made through the Mobile Deposit service shall be deemed to be correct, unless you notify the Bank of any errors within 30 days after the applicable account statement is mailed or otherwise provided to you.
7. IRD Processing. Items may be transmitted for electronic processing by other financial institutions or converted to IRDs and transmitted to a printing facility for printing and clearing through traditional paper processing channels, at the Bank’s sole discretion. The IRDs will be created in accordance with Check 21. Alternatively, the Bank may process Items as photocopies in lieu of originals, under guidelines that are consistent with applicable industry standards. Items that fail to satisfy your warranties made to the Bank, that fail to meet the requirements of the Bank or Check 21, or that are otherwise not able to be processed may be charged back to your account, returned to you, or both. You agree to be bound by any laws, rules and regulations that are applicable to the Bank.
8. Processing of Items. Images of Items transmitted by you are not considered received by the Bank until you have received an electronic confirmation of the receipt of the deposit from the Bank. However, receipt of the confirmation from Bank does not mean that the transmission was error free or complete. Different transaction cut-off times may apply to the Mobile Deposit service. Contact us if you have a question regarding cut-off times because they are subject to change without advance notice. You understand and agree that funds from Items deposited under the terms of this agreement are not subject to the Bank’s Funds Availability Policy and will generally be available after processed and once funds are received.

8. Contact Information

Please use the following information to notify or otherwise contact us.

Foresight Bank
138 West Broadway

Plainview, MN 55964
Phone: 507-534-3131 or 800-443-8605
E-mail: Service@Foresight.Bank

Our representatives are available to assist you during our regular business hours.

9. Limited Liability

You understand that there are risks associated with using iBanking. You acknowledge and agree that your use of iBanking shall be at your sole risk and that iBanking is provided by the Bank on an “as is” basis. Without limiting the generality of the forgoing, the Bank’s liability is limited as described below.

1. Access. We will not be liable for failure to provide access or for interruptions in access to the Service.
2. Your Hardware and Software. We will not be responsible for any errors or failures from any malfunction of your computer, Mobile Device, or other hardware, or from any malicious software or other problems related to iBanking. To the extent allowed by law, you agree that the Bank is not responsible for any losses, injuries, or harm incurred by you as a result of any electronic, e-mail, text message or Internet fraud.
3. Transaction Processing. We will not be responsible for not processing any transaction or instruction that (i) exceeds your collected and available funds on deposit with the Bank; (ii) is not in accordance with any condition indicated by you and agreed to by the Bank; (iii) the Bank has reason to believe may not be authorized by you; (iv) involves funds subject to hold, dispute, or legal process preventing their withdrawal; (v) would violate any provision of any present or future risk-control program of the Federal Reserve or any current or future rule or regulation of any other federal or state regulatory authority; (vi) is not in accordance with any other requirement stated in this Agreement or any Bank policy, procedure or practice; or, (vii) for the protection of the Bank or you, the Bank has reasonable cause not to honor.
4. No Warranties. BY USING THE SYSTEM AND ONLINE BANKING SERVICES, YOU AGREE TO ACCEPT COMPLETE RESPONSIBILITY; THEREFORE, THE BANK AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SERVICE PROVIDERS, DISCLAIM ANY AND ALL LIABILITY, WHETHER NOW KNOWN OR OTHERWISE, WITH RESPECT TO YOUR USE, AUTHORIZED OR UNAUTHORIZED, OF THE SYSTEM AND ANY ONLINE BANKING SERVICES, AND THE BANK FURTHER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Unauthorized Access. To the extent permitted by applicable law, (i) all transactions made using your Access Credentials will be conclusively presumed to be authorized by you; (ii) you are liable for all transactions that you or any authorized users make or authorize, even if that person exceeds the authority you granted; and (iii) you are liable for any and all unauthorized use that occurs before you have notified us that your Access Credentials have been lost or stolen or used without your authority and before we have had a reasonable opportunity to act on such notice. ABSENT SPECIFIC KNOWLEDGE ON THE BANK’S PART THAT AN IBANKING ACTIVITY IS UNAUTHORIZED, THE BANK SHALL NOT BE LIABLE FOR ANY NON-AUTHORIZED USE OF YOUR ACCESS CREDENTIALS AND THE BANK SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO THE IBANKING SYSTEM BY ANY THIRD PARTY WHO IS NOT AN AUTHORIZED USER. THE BANK IS UNDER NO INDEPENDENT DUTY TO DETERMINE WHO IS USING YOUR ACCESS CREDENTIALS.
6. In no event will we or any of our officers, directors, shareholders, parents, subsidiaries, affiliates, agents, licensors, or third-party service providers be liable for any consequential, indirect, incidental, special, or punitive damages arising out of or in connection with your use of the iBanking service.

10. Your Responsibilities
    1. Registration Information. You agree to provide accurate, current, and complete information about yourself as requested in registering for iBanking, and you agree to not misrepresent your identity. You certify that you are 18 years of age or older and otherwise able lawfully to enter into contracts under applicable law.
    2. Legal Compliance. You agree not to violate any law, statute, ordinance or regulation (including those governing export control) in connection with the iBanking service.
    3. Prompt Notification of Theft or Destruction of Equipment. You agree to notify us in a timely manner in the event you lose, change, or destroy a Mobile Device that is registered with the Mobile iBanking Service.
    4. Prompt Notification of Unauthorized Transaction or Compromised Access Credentials. Tell us at once if you believe your Access Credentials have been lost or stolen, or if you believe that an iBanking transaction has been made without your permission. You could lose all the money in your Account(s) (plus your maximum overdraft line of credit). Telephoning us immediately is the best way to prevent and minimize losses.
    5. Naming of Accounts. You agree not to use any personally identifiable information when providing shortcuts or creating nicknames to your Accounts.
    6. Duty to Inspect. You agree to inspect all transactions, statements, and other communication from the Bank, and report all errors to the Bank as soon as possible. Your failure to promptly report errors within the time periods specified in your Account agreements and disclosures restrict or eliminate your rights.
    7. Maintenance and Connectivity. You are responsible for establishing and maintaining all Internet connections, browsers, hardware, software, and anti-virus/security systems that are necessary to access iBanking. The Bank is not responsible for any errors or failures of your hardware, software, or anti-virus/security systems.

11. Indemnification

Unless caused by our intentional misconduct or negligence, you agree to indemnify, defend and hold harmless the Bank, its affiliates, officers, directors, employees, consultants, agents, service providers, and licensors from any and all third-party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) caused by or arising from (i) a third-party claim, dispute, action, or allegation of infringement, misuse, or misappropriation based on your information, data, or files, or otherwise in connection with your use of the Service; (ii) your violation of any law or rights of a third party; or (iii) your use, or use by a third party, of the iBanking service.

12. Bank’s Responsibilities

The Bank agrees to use ordinary care in providing services under this agreement. You recognize and agree that ordinary care does not mean error free. Our sole responsibility for an error in a transfer will be to correct the error.

13. Fees

With the exception of certain Bill Pay transactions, there are no fees for establishing an iBanking account or using the iBanking service. We may, however, establish a schedule of service charges and fees under this agreement. Please refer to the account disclosures for your Account(s) with us to determine if an iBanking transaction could cause another fee to be charged (such as an overdraft fee).

There are no fees for initiating and completing standard Bill Pay payments if your checking Account used to make Bill Pay payments is a Consumer Account. If your checking Account used to make Bill Pay payments is a Business Account, your Account will be charged $0.80 per standard payment initiated through the Bill Pay service. Fees apply to Consumer Accounts and Business Accounts for gift payments, charitable contribution payments, rush payments and other specialized payments. Those fees will be disclosed to you as you schedule such payments in the Bill Pay system before you commit to make such a payment and incur any fee. We may modify fees for Bill Pay transactions from time to time.

14. Modification

We may change the terms of this agreement by giving you notice of the change by posting notice in a conspicuous manner for 30 days, notifying you via the iBanking service, mailing the notice to you at the address in the our records, or enclosing notice of the change to you with any periodic statement. New iBanking services may be introduced from time to time. By using these services when they become available, you agree to be bound by the rules that will be made available to you concerning these services. We may elect to discontinue any or all of the iBanking features at any time, in which case we will endeavor to provide you with reasonable advance notice. The Bank shall not be bound by any modification of this agreement unless the Bank expressly agrees to the modification in writing.

15. Termination

You may terminate your iBanking account at any time by notifying us at least 5 Business Days before the date you want the service terminated. We may require you to put your request in writing. We may terminate your use of the iBanking services, in whole or in part, at any time without prior notice. Your access to the iBanking service may be terminated automatically if each Account you have is closed or if access to any of your Accounts is restricted for any reason. Termination will not affect your liability or obligation under this agreement for transactions we have processed on your behalf.

16. Notices

All notices required under this agreement shall be sent via U.S. Mail or electronically by a telecommunications device capable of creating a written record and delivered, mailed, or made available to you at the most recent address on file with the Bank and to us at the address set forth in this agreement or to such other address as such party may designate from time to time. All notices shall be effective upon mailing or electronic transmission. Tell us at once if you believe your Access Credentials have been lost or stolen, or if you believe that an iBanking transaction has been made without your permission. Telephoning us is the best way of keeping your possible losses to a minimum.

17. Miscellaneous Provisions
    1. The headings and captions contained in this agreement are included only for convenience of reference and do not define, limit, explain, or modify this agreement or its interpretation, construction, or meaning.
    2. The holding of any provision of this agreement as invalid, illegal, or unenforceable, in whole or in part, shall not affect the other provisions of this agreement, which shall remain in full force and effect.
    3. No waiver by the Bank (whether or not in writing) of any term, condition, or obligation of you shall bind the Bank to waive the same term, condition, or obligation again, nor shall any other provision, condition, term, or obligation hereof be affected by such a waiver.
    4. Governing Law. The terms and conditions of this agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflict of law provisions and without regard to your state of residence.
    5. Entire Agreement. This agreement constitutes the entire agreement between you and the Bank concerning the iBanking service. This agreement supersedes all prior agreements and amendments.

Terms of Use and Privacy Policy

The primary licensor for the online and/or mobile banking service you are using (the “Service”) is Jack Henry & Associates, Inc. (the "Provider"). By enrolling in our Service, you hereby agree as follows:

(i) General. The Provider is not the provider of any of the financial services available to you through the Service, and the Provider is not responsible for any of the materials, information, products or services made available to you through the Service.

(ii) Provider Privacy Policy. Provider may access personal information while you use the Service. Provider may access records held by your financial institution for such information as your phone number, home address or email address. Provider will use this contact information to alert you about Service-related events or actions that require your attention. If you grant permission to use phone information, Provider will use the phone number to pre-populate forms that expect a personal phone number for contacting. If you grant permission to use your device’s location, Provider will use the data when checking for nearby branch and ATM locations. If you grant permission to use access photos, media or other files stored on your device, Provider will use that information to add an image to a transaction and add a photo to your profile. If you grant permission to use a camera, Provider will use it when taking a picture to add an image to a transaction or to capture images of a check that is being deposited or to add a photo to your profile. In addition to this Provider Privacy Policy, your financial institution maintains a privacy policy covering the personal and financial information related to your use of the financial institution’s services and products, including such information that may be gathered through use of this Service, such as the “Account Information” and “Registration Information” described below. A copy of that privacy policy is available from your financial institution.

(iii) Source of Information. The Service, at your direction, will retrieve your information maintained online by financial institutions and billers with which you have customer relationships, maintain accounts or engage in financial transactions and other log-in related information ("Account Information"). Provider does not review, verify or analyze the Account Information for accuracy or any other purpose, but simply gathers, organizes and reports available Account Information to you. Technical difficulties may result in a failure to obtain data, a loss of data, a loss of personalized settings or other service interruptions. Account Information is timely only to the extent that it is promptly provided by the third-party sites. Account Information may be more complete or up to date when obtained directly from the third-party sites.

(iv) Your Responsibility for Information. You are responsible for providing Provider with accurate and updated (as necessary) account numbers, user names, passwords and other log-in related information ("Registration Information") so that the Service is able to access Account Information. If you become aware of any unauthorized use of your Registration Information, you should notify your financial institution immediately.

(v) Rights You Grant to Provider. By submitting data, passwords, user names, PINs, log-in information, materials and other Registration Information to Provider through the Service, you are voluntarily supplying that content to Provider for the purpose of providing the Service to you. By submitting such information to Provider, you represent that you are entitled to submit it to Provider for use for this purpose, without any obligation by Provider to pay any fees. By using the Service, you expressly authorize Provider to access your Account Information maintained by identified third parties, on your behalf as your agent. When you use the "Add Accounts" feature of the Service, you will be directly connected to the website for the third party you have identified. Provider will submit information including user names and passwords that you provide to log you into the site. You hereby authorize and permit Provider to use and store the information submitted by you (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third-party sites for which you submit your information. You acknowledge and agree that when Provider is accessing and retrieving Account Information from the third-party sites, Provider is acting on your behalf and not on behalf of the third party. You acknowledge that certain risks are inherent in the transmission of information over the internet, and you agree that by using the Service you are assuming those risks.

(vi) Consent to Use of Data. You agree that Provider may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Service. Provider may use this information, as long as it is in a form that does not personally identify you, to improve its products or provide services or technologies.

(vii) Disclaimer of Warranty. THE SERVICE IS PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. NO WARRANTY IS PROVIDED THAT THE SERVICE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. YOUR USE OF THE SERVICE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

(viii) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, PROVIDER'S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF $250. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

(ix) Google Analytics. To assist Provider in maintaining and improving this application, Provider uses Google Analytics to gather information about usage of the Service. For example, it tracks how many visitors the Service has, which screens they spend time on, what kinds of operating systems and devices they use, and how they found the Service. Google Analytics does not track, collect or upload any data that personally identifies an individual (such as a name, email address, account number or billing information), or other data which can be reasonably linked to such information. The information helps Provider improve the performance of this Service for you. For more information on Google's use of the data, please see the website "How Google uses data when you use our partners' sites or apps" located at http://www.google.com/policies/privacy/partners/.

(x) Miscellaneous. This End User Agreement constitutes the entire agreement between you and Provider concerning the subject matter hereof. This End User Agreement will be governed by and construed in accordance with the laws of the state of Iowa, excluding that body of laws pertaining to conflict of laws. If any provision of that portion of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this End User Agreement are subject to the exclusive jurisdiction of the courts of Iowa and you expressly consent to jurisdiction and venue thereof and therein. This End User Agreement and all related documentation are and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.