The Upromise Member Agreement contains details about the relationship between you and us relating to the Upromise service. You have to accept the terms of the Member Agreement in order to become a Upromise member. By enrolling as a Upromise member, you agree to these terms and conditions and that your use of this site and your participation in the Upromise service is subject to this Member Agreement.

By enrolling in the Upromise Service, you acknowledge that you have read and understood this Member Agreement and that you agree to be bound by all of its terms. If you do not agree to all of the terms of this Agreement, then do not click the "enroll" button to finish enrolling.

You also acknowledge that you have had an opportunity to review the Upromise Privacy Statement or that it has been made available to you.

This Agreement constitutes a legally binding agreement between Upromise, Inc., a Delaware corporation ("Upromise"), and each individual who registers with the Upromise Rewards Service, as described below (the "Service"), by completing the registration form on the Upromise website ("you" or the "Member"). As used in this Agreement, the terms "we" and "us" mean Upromise, and the term "our" means Upromise's.

Membership

1. Registration. You represent that you are a person of legal age in the state in which you live (generally at least 18 to 21, depending on the state) and are a U.S. citizen or residing in the United States or its territories. You agree that it is your responsibility to keep your Member information current, complete and accurate by periodically updating your information in the appropriate section of our website.
2. License. Subject to this Agreement, we hereby grant you a non-exclusive, non-transferable license (without the right to sublicense) for so long as you participate in the Service and adhere to this Agreement, to access, participate in and use the Service. You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement.
3. Fees. We do not charge any membership fee. Some of the businesses that will participate in the Service by rebating a portion of Members' purchases at or with those businesses (each a "Contributing Company") may charge fees with respect to some of their offers related to the Service. Any such fees will be disclosed in the description of those Contributing Companies' offers, and each Contributing Company reserves the right to change such fees or institute new or additional fees in the future.
4. Policies. You agree to comply with this Agreement, and all other policies, rules and terms and conditions as set forth in Service materials, including materials of Contributing Companies, either in print or on our website (collectively, the "Policies"). The Policies, including any amendments which may be made from time to time, are hereby incorporated by reference into this Agreement. We may modify this Agreement or the Policies at any time upon notice given in accordance with this Agreement. This Agreement and the Policies as so amended will be posted on our website, and your continued use of the Service thereafter will constitute your affirmative acceptance of any such amendment and your agreement to the terms thereof. You also acknowledge and agree that any information you provide to a Contributing Company is subject to that Contributing Company's own privacy and data collection policies.

Member Obligations

5. No Unauthorized Use of the Service. You agree that you will not, and will not permit others to:
   1. provide any unauthorized third party with access to the Service or any information, data, text, links, images, software, chat, communications and other content available through the Internet and proprietary to Upromise (collectively, "Content") by any means;
   2. modify, reverse engineer, reverse assemble or decompile any of the software applications used by you in connection with your participation in the Service;
   3. engage in any activity that does not comply with U.S. law or other applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Service;
   4. introduce into the Service any code intended to disrupt the Service, alter or delete its Content, access confidential Content on our website or interfere with the operation of the Service, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses;
   5. post any material in any form whatsoever on our website or within the Service that is defamatory, obscene or otherwise unlawful or violates any third party's right of privacy or publicity; or
   6. infringe any third party's patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Service.
6. Security. You will maintain the confidentiality of the user IDs and passwords by which you access the Service, and will allow access to the Service only by authorized persons, and not by any program, expert system, electronic agent, "bot" or other automated means. If you desire, you may authorize an account guest to contact Upromise customer care to take certain actions on your behalf with respect to your account. The Upromise website will set forth our Policies regarding account guests. Any use of your assigned user IDs or passwords will be deemed to be your use. If there is a breach of security through your account, you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your user ID and password is yours and has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. In addition, you agree that we should assume that any instruction by an account guest that is in compliance with the Policies has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction. You will not permit any use of the Service that would damage, interfere with or unreasonably overload the Service. You acknowledge that Upromise will not contact you to solicit your user ID or password.
7. Discontinuation or Suspension of Use. We may, in our sole discretion, at any time and without prior notice:
   1. discontinue transmitting all or any part of the Content related to the Service;
   2. change, discontinue or limit access to the Service or any functionality, feature or other component of the Service; or
   3. suspend or terminate your use of or access to all or part of the Service upon giving you notice of such suspension or termination.

Contributing Company Offers and Payment of Contributions

8. Contributions. Subject to this Agreement, you will receive cash rebates and other payments denominated in U.S. dollars (each a "Contribution") on all Qualifying Purchases made at, from or with Contributing Companies, or upon redemption of points or other awards of certain Contributing Companies as applicable, in the amounts or percentages set by those Contributing Companies and subject to those Contributing Companies' terms and conditions. Some of your Qualifying Purchases may be made at grocery stores and other retailers that are not Contributing Companies ("Pass-Through Retailers"), but that have agreed to provide us with information about your purchases so that Contributing Companies whose products are sold by those Pass-Through Retailers can provide Contributions on your Qualifying Purchases at such Pass-Through Retailers. Pass-Through Retailers shall not be responsible for the refusal of any Contributing Company to pay Contributions in accordance with the terms of that Contributing Company's offer. Solely as a convenience, we may provide a promotional page or other description on the Upromise website of each Contributing Company's terms and conditions. Contributing Companies may impose conditions or restrictions different from, or in addition to, those described on such promotional pages or in such descriptions. We are not responsible for setting or maintaining the amount of the Contributions offered by any Contributing Company or for requirements of any Contributing Company's program or offer. Each Contributing Company has reserved the right to change at any time, and without notice, the amount or percentage of any Contributions it offers as well as the terms and conditions of any qualifying purchase. Your continued use of the Service thereafter will constitute acceptance of such terms and conditions. We do not represent or warrant that any particular Contributing Company or Pass-Through Retailer will participate in the Service at the time you join the Service or at any time thereafter. For the purposes of this Agreement, a purchase is a "Qualifying Purchase" once all conditions in a Contributing Company's offer with respect to that purchase, including any waiting periods, have been satisfied.
9. The Upromise Account.
   1. a. Contributions you accrue as a result of Qualifying Purchases will be posted to your individual account on the books of Upromise (the "Upromise Account"). The Upromise website will display a summary of activity in your Upromise Account. Generally, Contributions will be posted to your Upromise Account within thirty (30) days of notice from a Contributing Company to Upromise of your relevant transaction or your election to convert or redeem existing miles or awards from a Contributing Company's eligible awards program. However, we will not be liable for damages resulting from any failure to post Contributions to a Upromise Account in a timely manner. You acknowledge and accept that you are solely responsible for checking your Upromise Account regularly to verify that Contributions have been properly posted. If you believe that a Contribution has not been properly posted to your Upromise Account, then you must inform Upromise within one year of the qualified transaction for which you are claiming that a Contribution should have been posted and must be able to provide proof of such transaction acceptable to Upromise. Upromise reserves the right, however, to determine, in its sole and absolute discretion, whether a Contribution should have been posted to your Upromise Account. You acknowledge that any such determination by Upromise will be final and binding.
   2. Contributions posted to your Upromise Account will be deposited and held in an account established and maintained by Upromise as trustee for the exclusive benefit of Upromise Members (the "Rewards Account"). Upromise will maintain a record of your interest in the Rewards Account. Contributing Companies will pay Contributions accrued by you to Upromise for deposit into the Rewards Account. You will not be entitled to receive interest on any funds deposited in the Rewards Account. Except as contemplated by Section 12, Contributions will remain in the Rewards Account until (i) you direct us to distribute such Contributions in accordance with this Agreement, or (ii) we exercise our options under Section 16 below. Contributing Companies have no role in verifying, administering or maintaining any Rewards Account or any Upromise Account. The amount of Contributions available for disposition in accordance with Section 15 of this Agreement may differ from the amount of Contributions posted in your Upromise Account. Your rights with respect to funds held in the Rewards Account exist only with respect to the Contributions actually deposited in the Rewards Account for your benefit. Only Upromise is authorized to act upon your instructions with respect to the disposition of funds held for your benefit in the Rewards Account in accordance with this Section and Section 15 of this Agreement.
10. No Responsibility for Contributing Companies. You agree that Upromise is not an agent of any Contributing Company and that Contributing Companies operate independently of, and are not under the control of, Upromise with respect to the Service or otherwise. Accordingly, we do not represent or warrant, or give any assurances, that any Contributing Company will provide a Contribution for any particular transaction even where such transaction would appear to qualify for such Contribution under either Upromise or Contributing Company statements. We are not responsible for the failure of any Contributing Company to pay Contributions in accordance with the terms of that Contributing Company's offer. Further, your participation in offers or promotions of, or correspondence with, any Contributing Company is solely between you and that Contributing Company. We do not assume any liability, obligation or responsibility for any part of any such correspondence, offer or promotion, including without limitation the withdrawal or modification of any such offer or promotion. Also, no Contributing Company assumes any liability, obligation or responsibility for our conduct with respect to the Service.
11. Online Affiliates. In the case of certain online Contributing Companies ("Online Affiliates"), the Online Affiliates have agreed to pay us certain affiliate or referral fees when Members purchase goods or services from such Online Affiliates through our website. We agree to deposit all or a portion of such affiliate or referral fee (as specified on our website for each particular Contributing Company) as a Contribution in the Rewards Account for your benefit upon receipt of the associated affiliate or referral fee. No Contribution associated with any purchase from an Online Affiliate will be earned and deposited in the Rewards Account for your benefit unless and until the associated affiliate or referral fee has been paid by such Online Affiliate to Upromise. For your convenience, we may post pending Contributions from Online Affiliates to your Upromise Account prior to the payment of the associated affiliate or referral fee to Upromise. We reserve the right to reverse the posting of any Contribution in the event the applicable Online Affiliate does not timely pay to Upromise the associated affiliate or referral fee. Upromise reserves the right to change its offer with respect to the amount of the Contribution associated with any Online Affiliate at any time, but no such change will affect any Contributions earned prior to such change.
12. Returning and Rescinding Contributions. In our sole discretion, we may withdraw amounts from the Rewards Account and deduct Contributions from your Upromise Account in order to make adjustments for returns and cancellations with respect to Qualifying Purchases. In the event that you have redeemed a Contribution held for your benefit in the Rewards Account or have elected to have it transferred to a Linked Account (as defined below) and you subsequently reverse the transaction with a Contributing Company that generated such Contribution, or otherwise are required to return the Contribution to the Contributing Company pursuant to the terms of the applicable offer, whether or not you are still participating in the Service, you will remain solely responsible for the repayment of the Contribution credited from such purchase, and we may apply future Contributions made for your benefit against such obligation and/or repay the amount of any such credited Contribution from funds held for your benefit in the Rewards Account. In the event you fail to repay such amount, we reserve the right to take any and all legal action necessary to collect the dollar amount from you, including but not limited to pursuing such claim in a court of law, employing a debt collection agency or reporting such claim to a credit reporting agency. We reserve the right to rescind Contributions and to bar further Contributions to, or terminate the Membership of, any Member that we believe, in our sole discretion, is abusing or has abused the Service, including, without limitation, by engaging in fraudulent activities, by engaging in a pattern of returning products after the corresponding Contribution has been credited, or creating or attempting to create or participating in any market in Contributions, or engaging in or accepting any broad-based solicitation of Contributions, and you agree to forfeit any and all Contributions you have received through the Service in the event you have engaged in any such activities.
13. Account Adjustments. In the event of any abusive or fraudulent activity related to the Service, as determined by us in our sole discretion, we reserve the right to make any adjustments to your Upromise Account and/or funds held for your benefit in the Rewards Account at any time. Any such adjustments, however, will be made in accordance with this Agreement, the Policies, any applicable laws, rules or regulations, and the terms of any Contributing Company offers.

Use of Information

14. Use of Information.
    1. You acknowledge that in order to administer the Service, we will collect information about you, your purchases from Contributing Companies and Pass-Through Retailers and your Linked Accounts (as defined below) with Linked Account Managers (as defined below). In furtherance of the foregoing, to the extent a telecommunications carrier is a Contributing Company, you authorize such entity, its affiliates and authorized representatives (collectively, the "Telecommunications Carrier") to share with us, and our affiliates and authorized representatives, your proprietary network information, qualifying Telecommunications Carrier services information and other Telecommunications Carrier service and usage information. You also authorize the Telecommunications Carrier to disclose to us any and all information with respect to your purchases of the Telecommunications Carrier's services, including qualifying Telecommunications Carrier services, as is necessary for us to provide any aspect of the Service or to advise you of Telecommunication Carrier services that are eligible for Contributions by the Telecommunications Carrier. You authorize Contributing Companies and Pass-Through Retailers and their respective agents to disclose to us any and all information with respect to your purchases from such Contributing Company. You also authorize Linked Account Managers and their agents to disclose to us any and all information with respect to your Linked Accounts as is necessary to fulfill the terms of this Agreement or to provide any aspect of the Service as set forth on our website. In addition, by registering any credit card, debit card, charge card, loyalty card or other unique account or identifier, you hereby authorize us and our agents to collect any and all information from any credit card processor, issuing bank, other card issuer or any available source with respect to the purchases made using such credit card, debit card, charge card, loyalty card or other unique account or identifier. You authorize us to use any such information and to disclose such information (a) to our representatives and agents, (b) to third parties, where necessary or convenient for transfer or redemption of your accumulated Contributions or otherwise in connection with the Service, (c) to comply with requests, orders or subpoenas from courts of law or any regulatory, legislative or administrative bodies and (d) otherwise in accordance with the terms of the Upromise Privacy Statement on our website. You represent that you have full authority to register each credit card, debit card, charge card, loyalty card and other unique account or identifier you register in the Service and to receive information about the transactions effected using such cards, accounts or identifiers. You authorize us to disclose such cards, accounts and identifiers to affiliated and unaffiliated third parties for the purposes set forth in this paragraph, even if you never make use of the service provided by one or more of those third parties.
    2. You authorize us, at the time you register a credit or debit card in the Service, to request authorization from the applicable credit, debit or charge card issuer for a transaction on such credit, debit or charge card in order to protect against fraud or other abuse; provided that we will reverse such transaction promptly upon receipt of authorization or rejection from the credit, debit or charge card issuer. You acknowledge and agree to this procedure and acknowledge that, during the period between authorization and reversal of such transaction, certain funds (up to $25.00) from your credit or debit card account may not be available for your use. Upromise will have no liability to you for any losses or costs associated with the temporary unavailability of such funds.

Use of Contributions

15. Linked Accounts. Upromise is not a registered broker-dealer and, therefore, does not effect any transactions in, offer, sell or distribute any securities. To the extent any activities associated with the Service are required to be performed by a registered broker-dealer, such activities will be conducted exclusively by Upromise Investments, Inc. ("Upromise Investments"), which is a wholly owned subsidiary of Upromise, or such other entity as may lawfully conduct such activities.
    1. Linked Account Managers. Certain financial institutions or state agencies or instrumentalities (the " Linked Account Managers") have entered into arrangements with Upromise Investments to offer and administer the various investment accounts, prepaid tuition plans and student loan accounts (each such account or plan, a "Linked Account"), including tax-advantaged educational savings accounts provided for in Section 529 of the Internal Revenue Code of 1986, which you may link to the Service and into which you may cause Contributions held for your benefit in the Rewards Account to be distributed, subject to such terms and conditions, including certain minimum transfers, imposed by such Linked Account Managers. To transfer Contributions to a Linked Account Manager, you must submit to the Linked Account Manager a separate account application and such other materials as the Linked Account Manager may require, and you must satisfy any terms, conditions or requirements imposed by such Linked Account Manager, in its sole discretion. We do not represent, warrant or guaranty that any Linked Account Manager will accept your account application or make available to you any particular product. Linked Account Managers may impose conditions or requirements different from, or in addition to, any described on our website. Each Linked Account Manager has reserved the right to change at any time, and without notice, the terms, conditions and requirements relating to any product it may offer. We do not represent or warrant that any particular Linked Account Manager will make available any particular product at the time you join the Service or at any time thereafter. Contributing Companies have no role in establishing or administering Linked Accounts. Upon your authorization through our website, transfers of your funds to a Linked Account (other than a prepaid tuition plan) in accordance with this Section will be made approximately every three months (or, in the case of prepaid tuition plans, once per year), or more often, at our discretion, in each case subject to any minimum transfer requirements of the applicable Linked Account Manager or Upromise, once you have set your preferences on our website in accordance with the procedures we establish from time to time. You acknowledge and understand that your funds will only be transferred to a Linked Account in accordance with the foregoing, and funds will not be distributed as directed by you until received by the Linked Account Manager in accordance with the terms and conditions of the agreement with the Linked Account Manager. You represent that you have full authority to link to the Service each Linked Account you link to the Service and to receive information about the transactions effected in such Linked Accounts, including the Linked Account balance. You authorize us to share information about your Rewards Account and any Linked Account with the applicable Linked Account Managers, and you authorize the applicable Linked Account Managers to share information about any Linked Account with us, as may be necessary to transfer your funds from your Rewards Account to your Linked Account(s) and to display information about your Linked Account(s) on the Upromise website.
    2. While the Linked Account Managers have agreed to work with Members to establish and maintain Linked Accounts in compliance with state, local, and federal regulations governing these types of accounts, we disclaim all liability for any damages, including indirect or consequential, resulting from the disposition of funds held for your benefit in the Rewards Account once such funds have been transferred to a Linked Account Manager. We do not make any representation about, or assume responsibility for, the performance of any Linked Account, the risk of which is borne fully by you.
    3. Other Uses of Contributions. You may choose to direct us to distribute Contributions held for your benefit in the Rewards Account in either of the following ways, as alternatives to transferring Contributions to a Linked Account with a Linked Account Manager:
       1. Transfer as gift to another Member. You may direct that any or all of the funds held for your benefit in the Rewards Account be held for the benefit of another Member, through the Family and Friends network in accordance with the procedures we establish from time to time; or
       2. Redeem as cash. You may request a withdrawal of any or all of the funds as a cash payment to you, in accordance with the procedures and subject to any fees we establish and as permitted by applicable law.

       Transfers of funds in accordance with this Section 15(c) will be made within sixty (60) days of notice to us by you in accordance with the procedures, and subject to such minimum transfers, that we establish from time to time and set forth on our website or otherwise disclose to you.

    4. You acknowledge and accept that none of the Contributing Companies, Upromise or Upromise Investments is the agent of any Linked Account Manager or any 529 Plan sponsor. You further acknowledge and accept that no Linked Account Manager or 529 Plan sponsor will have any liability, obligation or responsibility for the conduct of Upromise or Upromise Investments with respect to the Service. In furtherance of the foregoing, you acknowledge and accept that no Linked Account Manager will have any responsibility for or liability with respect to any funds until such funds have been transferred to the Linked Account Manager.

Miscellaneous

16. Termination; Expiration or Forfeiture of Upromise Accounts.
    1. This Agreement is effective when accepted by you, as described in the first paragraph of this Agreement, and will remain in effect and legally bind you and us until you or we terminate your membership in the Service. You may terminate your membership in the Service at any time in accordance with the procedures established on our website from time to time. We may terminate your membership in the Service without cause immediately after notice to you of such termination.
    2. If this Agreement has terminated, then we may close your Upromise Account and distribute any Contributions held for your benefit in the Rewards Account pursuant to one of the alternatives given in Section 15(c) above at your direction. If you do not supply such direction to us within sixty (60) days of our notice to you that we intend to close your Upromise Account, then we will distribute such funds in cash to you pursuant to Section 15(c)(ii) at your most recent address provided to us, subject to any minimum transfer amounts. To the extent that your Upromise Account is terminated and the Contributions held for your benefit in the Rewards Account are less than any minimum transfer amounts, you will forfeit such Contributions.
    3. Upon any termination of this Agreement, your right to use and access the Service and to receive Contributions will terminate and Sections 9, 10, 11, 12, 13, 14, 17, 18, 19 and 20 hereof will survive in accordance with their terms. Subject to the limitations set forth in this Agreement, termination will not prejudice either your or our remedies at law or in equity.
17. Certain Disclaimers; Indemnification.
    1. Disclaimer of Warranties.
       1. THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR VALIDITY OF ANY MATERIALS RELATED TO THE SERVICE AND DO NOT WARRANT THAT THE FUNCTIONALITY OF SUCH SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT SUCH SERVICE OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
       2. UPROMISE'S WEBSITE AND THE SERVICE MAY CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, OR RECOMMENDATIONS OF THIRD-PARTY INDIVIDUALS AND ORGANIZATIONS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE UPROMISE WEBSITE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, RECOMMENDATIONS OR INFORMATION WILL BE AT YOUR SOLE RISK. FURTHERMORE, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ITS CONTRIBUTING COMPANIES OR SUPPLIERS IN CONJUNCTION WITH THE SERVICE.
    2. Exclusion of Certain Damages. We will not be liable for any damages, including indirect or consequential damages, arising from:
       1. any failure to screen users or Members of the Service;
       2. acts or omissions of any users or Members of the Service;
       3. materials posted by, or of, any party other than Upromise or Upromise Investments or any use thereof;
       4. the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over or obtained using the Internet; or
       5. any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond our reasonable control, including the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power system, sabotage, armed hostilities, riots or government regulation of the Internet.

       In addition to the foregoing, on occasion, Contributing Companies, Pass-Through Retailers, Online Affiliates, Upromise and/or any of their respective third party agents may fail to track your Qualified Purchases due to computer system failures or interruptions beyond the reasonable control of the tracking party. Furthermore, certain hardware devices and software such as pop-up blockers, ad blocking software, viruses, worms, Trojans, adware, spyware and malware can interfere with the tracking of Contributions and/or the operation of our website. Neither Upromise nor any Contributing Company, Pass-Through Retailer, Online Affiliate or third party tracking agent shall be liable for your failure to receive a Contribution or important information about the Service as a result of a computer system failure or interruption or hardware devices or software on your computer or network.

    3. Indemnification. You agree to indemnify Upromise, Upromise Investments, any Contributing Company, Pass-Through Retailer, Linked Account Manager, 529 Plan Sponsor and any bank having custody of your Contributions (a "Custody Bank"), as well as their respective officers, directors, employees, successors, agents, and affiliates, for any and all claims, damages, losses and causes of action (including attorneys' fees and court costs) arising out of or relating to your breach of this Agreement (including without limitation relating to a breach by you of Section 5), or for any materials in any form whatsoever that are provided by you or your account guest (or through your user ID and/or password). You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. We reserve in our reasonable discretion the right to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
    4. Tax Advice. Nothing contained on our website is intended to constitute personal tax advice. The tax consequences of participation in the Service will depend on your particular tax circumstances. You are responsible for obtaining your own tax advice with respect to participation in the Service. You agree that we will not have any liability for any information contained on or omitted from the Upromise website with respect to taxes and that we have no obligation to inform you of changes in the tax laws.
    5. Investment Advice. Nothing contained on our website is intended to constitute investment advice, nor do we give advice or offer any opinion or recommendation on the suitability of any security or investment strategy. We will not be deemed to have solicited any investments directed by you in Linked Accounts established by you with the Linked Account Managers. Although you may be able to obtain investment related reports and information through the Service and our website, the availability of such information does not constitute a recommendation by us to buy or sell any security or other property discussed in such reports or information. Any investment decision you make will be based solely on your own evaluation of the merits of the particular investment decision in light of your financial circumstances and investment objectives.
18. Limitation of Liability.
    1. NONE OF UPROMISE, UPROMISE INVESTMENTS, ANY CONTRIBUTING COMPANY, PASS-THROUGH RETAILER LINKED ACCOUNT MANAGER OR CUSTODY BANK, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE INFORMATION CONTAINED ON THE UPROMISE WEBSITE, OR (EXCEPT IN THE CASE OF THE APPLICABLE CONTRIBUTING COMPANY OR SUPPLIER) ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED BY CONTRIBUTING COMPANIES OR SUPPLIERS IN CONJUNCTION WITH THE SERVICE, EVEN IF ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
    2. IN NO EVENT WILL UPROMISE'S AND UPROMISE INVESTMENTS' TOTAL LIABILITY TO YOU FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE UPROMISE WEBSITE OR PARTICIPATION IN THE SERVICE, WHETHER IN CONTRACT, TORT, (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE LARGEST AMOUNT OF FUNDS HELD FOR YOUR BENEFIT IN THE REWARDS ACCOUNT WHILE THIS AGREEMENT IS IN EFFECT.
19. Electronic and Oral Communications.
    1. Member and Account Guest Instructions. We may rely on your oral and electronic instructions and on your account guest's oral instructions. In addition, you consent to the monitoring and recording of your and your account guest's telephone conversations with us for training or compliance purposes or to provide a record of your instructions. You agree that we will not be liable for honoring oral instructions received from any person claiming to be you or your account guest, provided reasonable verification procedures have been followed. We may follow any instructions received by electronic means through the Upromise website just as if you had given such instructions in person, regardless of whether or not you have personally initiated such instructions.
    2. Upromise Communications. You consent to the receipt of all reports, transaction confirmations, account statements, correspondence and other information from us electronically through either (i) access to your Upromise Account on our website or (ii) the email address provided by you to us. We will not be responsible for your inability to connect to the Internet or to access the Upromise website or otherwise not to receive electronic communications. Electronic communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth on the Upromise website necessary to receive from us correspondence and records in electronic form. You may withdraw the consent to have those records provided or made available in electronic form by mailing written notice to Upromise. Such request will be made by mailing a written request to Upromise at 95 Wells Avenue, Suite 160, Newton, MA 02459, Attn: Customer Service. If you withdraw such consent, we reserve the right to terminate this Member Agreement.
20. General.
    1. Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of laws principles. Each party hereto agrees that all claims relating to this Agreement will be heard exclusively by a state or federal court in Massachusetts. Accordingly, each party hereby consents to the exclusive jurisdiction of any state or federal court in the Commonwealth of Massachusetts over any proceeding related to this Agreement, irrevocably waives any objection to the venue of any such court, and irrevocably waives any claim that any such proceeding in such a court has been brought in an inconvenient forum.
    2. Assignment. You may not assign your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. We may assign our rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit and burden of the parties hereto and their permitted successors and assigns.
    3. Notices. Any notice by one party hereto to the other will be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address or the mailing address specified in your account profile and to us at 95 Wells Avenue, Suite 160, Newton, MA 02459, Attn.: Customer Service, or any other address of which either party hereto may from time to time notify the other in accordance with this Section 22(c). All notices will be in English and will be deemed effective on the date of personal delivery, upon confirmation of email transmission, upon signed receipt from an overnight courier, or five days after deposit with the U.S. Postal Service.
    4. No Waiver; Severability. The waiver by either party hereto of a breach or default of any provision of this Agreement by the other party hereto will not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor will any delay or omission on the part of either party hereto to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. If any provision of this Agreement is held to be invalid, such invalidity shall not effect the remaining provisions.
    5. Relief. You acknowledge and accept that any breach of Section 5 above is likely to irreparably harm us and will not be susceptible of cure by monetary damages. Consequently, if you breach any provisions of Section 5 above, then we will be entitled to obtain injunctive or other equitable relief in addition to any remedies it may have at law.
    6. Third-Party Beneficiary. Upromise Investments and each Contributing Company, Pass-Through Retailer, Linked Account Manager, 529 Plan sponsor, and Custody Bank is hereby expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you.
    7. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof (including without limitation, earlier versions of this Agreement that may have been accepted by you through the Upromise website or otherwise). We reserve the right to modify this Agreement at any time upon notice given in accordance with this Agreement. Your non-termination and continued use of the Service after notice of any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof. You acknowledge that the most recent version of this Agreement will be located on the Upromise website under Member Agreement. No other act, document, usage or custom will be deemed to amend or modify this Agreement.

Effective Date 10/25/07