Terms of Service

Last Updated: December 11, 2015.

The SmartFinance Terms of Service (“Terms”) is a legally binding agreement between you and SmartFinance LLC (“SmartFinance”, “we” or “our”) and applies to the XOBI services and XOBI mobile software application that SmartFinance licenses to you and any related XOBI products, websites and services (collectively, the “XOBI Service”) and your use of a XOBI account (“Account”).

It is important that you read and understand these Terms as they govern your use of the XOBI Service and Account. By accessing or using the XOBI Service and Account you accept and agree to be bound by these Terms. If you do not agree with these Terms you should not access or use the XOBI Service and Account.  If you notify us that you withdraw your consent to these Terms, we reserve the right to close your Account.

We may amend these Terms at any time in our sole discretion by posting a revised version on xobi.com.  Amended Terms are effective at the time we post them and you should review these Terms carefully and from time to time because your continued use of the XOBI Service and Account constitutes your acceptance of any amended Terms. We may, but undertake no obligation to, provide you with notice regarding upcoming Terms changes by email.

1. Using The XOBI Service.

1.1. XOBI Account. The XOBI Service is a personal digital financial information management service that allows you to aggregate and store your financial information from your financial accounts and that provides enhanced service for management of your financial accounts. Such financial accounts may include bank accounts, credit card accounts and other financial accounts from institutions specified by you.  The XOBI Service was developed by SmartFinance to provide you with enhanced information and search capabilities. The XOBI Service also allows you to store your photos and receipts and attach them to your financial transactions. As a XOBI Account holder you may also be invited to apply for the XOBI Credit Card offered by a third-party financial institution.  The XOBI Service and Account are intended solely for persons who are 18 or older and have a valid U.S. mailing address.  Any access to or use of the XOBI Service and Account by anyone under 18 or who does not have a valid U.S. mailing address is unauthorized and in violation of these Terms.

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW CREDIT CARD ACCOUNT — The XOBI Credit Card is offered by a third-party financial institution, not SmartFinance. To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens a credit card account. What this means for you: When you open a credit card account, we will ask for your name, address, date of birth, and other information that will allow us to identify you.

1.2. Your privacy. Your privacy is very important to us. When you register for the XOBI Service, you confirm that you have read and accepted the SmartFinance Privacy Notice.  You also agree that SmartFinance may use and maintain your data according to the SmartFinance Privacy Notice, as part of the XOBI Service. SmartFinance may access or store your personal information in multiple countries, including countries outside of your own country.

1.3. Legal owner. Your right to access and use the XOBI Service is personal to you and is not transferable by you to any other person or entity. You represent that you are a legal owner of, and are authorized to provide us with, all registration and Account Information and other information you provide in connection with your use of the XOBI Service.

1.4.  Password security. You are responsible for keeping your XOBI login information, password, and PIN secure. If you share your Account credentials with another person, you are responsible for all activity they conduct using your Account, regardless of whether or not you authorized their activity. SmartFinance is not responsible for losses or damages caused by your failure to safeguard your Account information.

If you become aware of any unauthorized use of the Account or the device that you use to access the XOBI Service has been lost or stolen, you agree to notify SmartFinance immediately at the email address help@xobi.com.

The following is SmartFinance’s contact information:

Email: help@xobi.com

Please call 877-ASK-XOBI for all inquiries regarding the XOBI credit card.

Address: 1841 Broadway Suite 800, New York, NY 10023

1.5. Account Information from third-party sites. Users may direct SmartFinance to retrieve their own information maintained online by third-party providers of financial and other services and products (“Third-party Providers”) with which they have customer relationships, maintain accounts or engage in financial transactions (“Account Information”).  You must supply SmartFinance with true, accurate, complete and current information about yourself and your accounts maintained at other websites and institutions, including usernames, passwords and other login information.  You agree not to misrepresent your identity or your account information and to keep such information up-to-date and accurate.  SmartFinance works with one or more online service providers to access this Account Information. SmartFinance makes no effort to review the Account Information for any purpose, including but not limited to, for accuracy, legality or non-infringement. SmartFinance is not responsible for the products and services offered by or on third-party sites or services.  Furthermore, the terms of use and privacy policies of Third-party Providers are separate from the SmartFinance’s Terms of Service or Privacy Notice and you are responsible for reviewing and understanding the terms and policies of such third-party sites and services.  Users of the XOBI Service will be asked to agree to the applicable Third-party Provider’s terms of use and privacy policy.

1.6. Interruptions in service.  SmartFinance cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, communications or personalization settings or other service interruptions. SmartFinance cannot and does not assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the XOBI Service, Account Information is only as fresh as the most recent update. Such information may be more up-to-date when obtained directly from the relevant sites.

Your access and use of the XOBI Service may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the XOBI Service or other actions that SmartFinance, in its sole discretion, may elect to take. In no event will SmartFinance be liable to you or any other party for any loss, cost, or damage that results from any scheduled or unscheduled downtime.

Your sole and exclusive remedies for any failure or non-performance of the XOBI Service or Account, including any associated software or other materials supplied in connection with such services, shall be for SmartFinance to use commercially reasonable efforts to adjust or repair the applicable service and/or for you to cease using the XOBI Service and Account.

1.7. Use with your mobile device.  Use of the XOBI Service is available through a compatible mobile device.  You agree that you are solely responsible for the requirements governing your mobile service, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. You agree to provide SmartFinance with an accurate and updated phone number associated with your XOBI Account. SMARTFINANCE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.  SMARTFINANCE DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES.

1.8. No endorsement of products. SmartFinance does not provide any endorsements or guarantees for any individual or entity using the XOBI Service, nor any third-party offers, goods or services featured on the XOBI Service. Information regarding third-party offers, goods, and services is provided on the XOBI Service for informational purposes only, and may not be true, accurate, or reliable.  You acknowledge and agree that SmartFinance is not responsible or liable for the availability, accuracy, appropriateness or suitability of such third-party offers, goods, and services, or the content, products or services on or available from third-party websites, resources or offers.

1.9. Rights You grant to Us.  You hereby grant SmartFinance and its service providers a nonexclusive, worldwide, royalty-free, sublicensable, transferable, perpetual and irrevocable license to use, store, reproduce, modify, display, adapt, distribute, transmit, create new material using and otherwise exploit any and all information, data, passwords, materials, pictures, ratings, contacts, tags, receipts and other content you provide directly or indirectly through or to the XOBI Service (collectively, “User Content”) for the purpose of providing the XOBI Service.  By submitting User Content, you automatically agree, or promise that the owner of such Content has expressly agreed that, without any particular time limit, and without the payment of any fees, SmartFinance and its service providers may use the User Content for the purpose stated above, and in accordance with these Terms and our Privacy Notice.  You represent that you are entitled to submit User Content to SmartFinance for use for this purpose, without any obligation by SmartFinance to pay any fees or be subject to any restrictions or limitations.  As between SmartFinance and its service providers, SmartFinance owns your confidential Account information.

1.10. Access granted to the XOBI Credit Card and to accounts held by third parties.  By submitting your passwords, usernames and other login information, you expressly authorize SmartFinance to access your Account Information maintained by third parties on your behalf as your agent. By applying for a XOBI Credit Card you expressly authorize SmartFinance to access your XOBI Credit Card Account Information. You hereby authorize and permit SmartFinance to use and store information submitted by you to accomplish the foregoing and to configure the XOBI Service so that it is compatible with the third-party sites for which you submit your information.  By using the XOBI Service, you authorize SmartFinance and its service providers to access third-party sites designated by you, on your behalf, to retrieve information requested by you, and to register for accounts requested by you. For all purposes hereof, you hereby grant SmartFinance and its service providers a limited power of attorney, and you hereby appoint SmartFinance together with its service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place and stead, in any and all capacities, to access third-party internet sites, servers or documents, and to retrieve and use your information, all as described above, with the full power and authority to do and perform each thing necessary in connection with such activities, as you might or could do in person.  YOU ACKNOWLEDGE AND AGREE THAT WHEN SMARTFINANCE OR ANY OF ITS SERVICE PROVIDERS ACCESS AND RETRIEVE ACCOUNT INFORMATION FROM THIRD-PARTY SITES, SMARTFINANCE AND ITS SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY.  You agree that third-party account providers shall be entitled to rely on the foregoing authorization, agency and power of attorney granted by you. You understand and agree that the XOBI Service is not endorsed or sponsored by any third-party account providers accessible through the service. SmartFinance is not responsible for any payment processing errors or fees or other services-related issues, including those issues that may arise from inaccurate account information or technology related failures.

1.11.  Ownership and restrictions.  SmartFinance and its licensors own all right, title, and interest, including all worldwide intellectual property rights in the XOBI Service, the Content and in each case the trademarks, service marks and logos contained therein.  You are permitted to use Content delivered to you through the XOBI Service only on the XOBI Service and for only as long as you maintain an Account.  Further, you agree not to reverse engineer, reverse compile disassemble or otherwise attempt to derive the source code of any of the service technology used to deliver the XOBI Service, including but not limited to, any Java applets associated with the XOBI Service.  For purposes of these Terms, “Content” means, collectively, all content and materials on or made available through the XOBI Service that is not User Content, including but not limited to text, data, images, articles, tools, reports, analyses, performance charts, account summaries, reports, and the “look and feel” (e.g., the text, graphics, diagrams, images, logos, button icons, and layout of the XOBI dashboard) of the XOBI Service.

You may not modify, copy, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Content in whole or in part except as expressly authorized by SmartFinance.  You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the XOBI Service, Content or related products or services.  Except as expressly provided herein, SmartFinance does not grant you any express or implied rights, and all rights in and to the XOBI Service and the Content are retained by SmartFinance.

The XOBI Service is protected by copyright under the copyright laws of the United States and other countries. Except as otherwise specified in these Terms, all individual articles, Content and other elements comprising the XOBI Service are also copyrighted works.  All copyright rights in the XOBI Service and these works are owned by SmartFinance or its third-party licensors, as applicable, to the fullest extent permitted under the United States Copyright Act and all international copyright laws.  You must abide by all additional copyright notices or restrictions contained on the XOBI Service.

XOBI is a trademark and service mark owned by SmartFinance.  All third-party trademarks, service marks, trade names, trade dress, product names, brands and logos appearing on the XOBI Service are the property of their respective owners.  The use of such third party marks on the XOBI Service does not indicate any endorsement, affiliation or other relationship involving the XOBI Service, on the one hand, and the third-party or their products and services on the other.

2. Consent to receive electronic Communications.

2.1. Communications. By opening an Account and using OBI, you consent to receive all Communications from the XOBI Service electronically and you confirm that you can access, receive and retain such Communications. “Communications” means all communications, terms, disclosures, notices, offers and statements that the XOBI Service provides to you in connection with your Account and your use of the XOBI Service.  The XOBI Service provides Communications to you by posting them on xobi.com, by emailing them to you at the email address associated with your Account or by texting them to a mobile device that accepts text messages.  By using the XOBI Service, you acknowledge and agree that internet transmissions cannot be assured of complete privacy or security.  You understand that any message or other user information you send to SmartFinance or to the XOBI Service may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

2.2. Notices to you. A Communication will be considered to be received by you within 24 hours after the time we post it to our website or email it to you.

2.3. Keeping your contact information updated. You must keep your email address updated in order to receive Communications from the XOBI Service electronically. To update the email address or mobile device number associated with your Account, log into your Account and access the settings menu.  Changes to your email address or mobile number will apply to all Communications.

2.4. Delays in Communications.  You understand and agree that any Communications provided to you through the XOBI Service may be delayed or prevented by a variety of factors. SmartFinance may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert.  SmartFinance shall not be liable for any delays, failure to deliver, or misdirected delivery of any Communication; for any errors in the content of a Communication; or for any actions taken or not taken by you or any third party in reliance on a Communication.

3. User conduct.

3.1. Restricted activities. You agree that in connection with your use of the XOBI Service and your interactions with SmartFinance you will not:

a. Breach these Terms or any other terms or policies for the XOBI Service that you have accepted;

b. Provide false or inaccurate information to SmartFinance, including identity information or account information;

c. Engage or attempt to engage in illegal or fraudulent activities;

d. Engage in activity that indicates, in SmartFinance’s sole discretion, that there may be a high level of risk associated with you, your Account, or any of your Account activity;

e.  Use any robot, or other similar automated data gathering or extraction tools, to access, acquire, copy or monitor the XOBI Service or any portion of the XOBI Service, without SmartFinance’s express written consent, which may be withheld in SmartFinance’s sole discretion;

f.  Use or attempt to use any engine or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the XOBI Service, other than the search engines and search agents available through the XOBI Service;

g.  Post or transmit any file which contains viruses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the XOBI Service; or

h.  Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the XOBI Service.

4.  Payments for XOBI Credit Card Customers

XOBI credit card customers can make payments to their XOBI credit card using the XOBI App in the following manner:

  1. Payments to your XOBI credit card can be scheduled from a checking, money market, savings or other consumer asset account maintained at a financial institution that you have linked to your XOBI account. You certify that any account you link is an account from which you are authorized to make payments, and any payment you link will debit an account that you are legally authorized to use and have completed all necessary authorizations. When you add an account maintained at another financial institution, you do not change the agreements you have with that financial institution for that account. You should review those agreements for any applicable fees, for limitations on the number of transactions you can make, and for other restrictions that might limit your use of the account to make payments to your XOBI credit card.
  2. Payments from your other accounts for the XOBI credit card can be entered as a 1-time transaction up 90 days in advance, or as payments that are automatically scheduled.
  3. Cutoff time is at 6PM Eastern on any Business Day. Payments to your XOBI credit card entered on our system before 6:00 PM Eastern Time will be applied on the same day. Payments entered after this Cutoff will be scheduled and processed on the next business day.
  4. The Cutoff time reflects the time displayed on our internal system clocks and may not necessarily be synchronized with the internal clock displayed on your phone. For this reason, we suggest that you transmit any payment instructions to us sufficiently in advance to eliminate the possibility of missing the Cutoff.
  5. If the financial institution upon which your payment is drawn rejects, refuses, or returns the payment, the payment to your XOBI credit card will be reversed and you may incur late payment or other fees, unless we receive payment by other means on or before the payment due date. See your XOBI credit card account agreement for details.
  6. Payments that are automatically scheduled will default to a payment date two days prior to the due date. XOBI users have the flexibility to adjust the number of days such that the payment can be made on the due date or on an earlier date.

Please call 877-ASK-XOBI for all inquiries regarding the XOBI credit card.

5. Termination

5.1. By you. You may stop using the XOBI Service at any time.

5.2. By us. We may close your Account or terminate your access to the XOBI Service without liability, for any reason, upon notice to you. Reasons for termination may include, but are not limited to, your violation of these Terms or any other applicable terms or policies, Account inactivity, or SmartFinance’s assessment that you pose an unacceptable risk to the XOBI Service, based on our confidential risk and security criteria. SmartFinance also reserves the right to modify or terminate the XOBI Service at any time, for any reason.  You understand and agree that SmartFinance will not be liable to you for any termination of your access to the XOBI Service or your Account for any reason.  Any suspension, termination or cancellation shall not affect your obligations to SmartFinance under these Terms (including but not limited to ownership of intellectual property, indemnification, and limitation of liability), which by their nature and context are intended to survive such suspension, termination or cancellation.

6. Disputes with SmartFinance

6.1. Binding arbitration. You and we (collectively, the “Parties”) agree that upon the election of either of the Parties, any past, present, or future dispute relating in any way to your Account, or any other past, present, or future relationship or transaction between the Parties, will be resolved by binding arbitration as discussed below, and not through litigation in any court. Such disputes are called “Claims” for purposes of this agreement. This binding agreement to arbitrate applies regardless of whether the dispute is between you and us jointly or separately. This arbitration agreement is entered into pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 116. The arbitration shall be conducted by a single neutral arbitrator acting in accordance with the then applicable United States Arbitration and Mediation Rules of Arbitration. Unless the Parties agree otherwise, or unless the arbitration administrator’s rules or law require otherwise, the arbitration shall be held in New York, NY.

The arbitrator will decide the Claim in accordance with all applicable law, including recognized principles of equity and statutes of limitations, and will honor all privileges recognized by law. The arbitrator will have the authority to award to a Party any damages or relief provided for under applicable law. The arbitrator’s decision shall be final and legally binding, and may be enforced by any court having jurisdiction.

No class actions or similar process, and no joinder or consolidation of any Claim with a Claim of any other person or entity, shall be allowable in arbitration, without the written consent of both Parties. The arbitrator shall have no authority to entertain any Claim on behalf of a class, group, person, or entity who is not a named party to the arbitration, nor shall any arbitrator have authority to make any award for the benefit of, or against, any class, group, person, or entity who is not a named party to the arbitration. In the event that there is a dispute about whether limiting arbitration to non-class proceedings or to the named parties is enforceable under applicable law, then that question shall be resolved by a court rather than by an arbitrator; and to the extent it is determined that resolution of a Claim must proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration. If you elect to proceed with respect to any Claim by an individual action in a small claims court, or its equivalent, instead of arbitration, we will not object, however, any such action shall be taken in small claims court in New York, NY.

If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator’s rules or applicable law. Apart from the foregoing, each Party will be responsible for any other fees or costs, such as attorney fees that the Party may incur.

Arbitration with respect to a Claim is binding and neither Party will have the right to litigate that Claim through a court. In arbitration the Parties will not have the same rights that apply in court, such as the right to a trial by judge or jury and the right to participate or be represented in proceedings brought by others such as class actions or similar proceedings. In addition, the right to discovery and the right to appeal may also be limited or eliminated in arbitration. All of these judicial rights are waived with respect to Claims that the Parties elect to arbitrate.

7.  General terms.

7.1. Indemnification. You agree to defend, indemnify and hold harmless SmartFinance and its service providers and each of their respective officers, directors, agents, employees, suppliers and affiliates from any third-party claims, actions, proceedings, suits, liabilities, damages, expenses, settlements, penalties, fines, costs or expenses (including but not limited to reasonable attorneys’ fees and other litigation expenses) arising from or in connection with: (a) your violation of these Terms or any other applicable terms or policies; (b) your use of the XOBI Service or Account; or (c) your actual or alleged violation, or the actual or alleged violation of any other user of your Account, of any third-party rights (including but not limited to intellectual property rights), or any applicable laws, regulations or rules.  You agree that the indemnified parties listed above, including without limitation SmartFinance’s service providers, are express third-party beneficiaries of these Terms, with all rights to enforce these Terms as if each such indemnified party were a party to this agreement.

7.2. Limitation of liability. IN NO EVENT SHALL SMARTFINANCE OR ANY OF OUR RESPECTIVE THIRD-PARTY PROVIDERS (INCLUDING, WITHOUT LIMITATION, FINANCIAL ACCOUNT PROVIDERS), OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, INCOME, BUSINESS, TIME, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (i) THESE TERMS, (ii) THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE XOBI SERVICE, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED, RECEIVED, OR PAID FOR USING THE XOBI SERVICE, (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (v) STATEMENTS OR CONDUCT OF ANYONE ON OR IN CONNECTION WITH THE XOBI SERVICE (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD-PARTY PROVIDER SITE, EVEN IF THE PROVIDER HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES, OR (vii) ANY OTHER MATTER RELATING TO THE XOBI SERVICE, IN EACH CASE, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER SMARTFINANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SMARTFINANCE’S LIABILITY AND THE LIABILITY OF OUR RESPECTIVE THIRD-PARTY PROVIDERS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS EXCEED THE GREATER OF (I) THE AGGREGATE FEES SMARTFINANCE HAS RECEIVED FROM YOU THROUGH YOUR USE OF THE XOBI SERVICE AND ACCOUNT DURING THE PRIOR TWELVE-MONTH PERIOD AND (II) ONE HUNDRED DOLLARS.

7.3. No warranty. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

THE XOBI SERVICE AND ACCOUNT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOUR USE OF THE XOBI SERVICE AND ACCOUNT IS AT YOUR OWN RISK. SMARTFINANCE AND OUR THIRD-PARTY PROVIDERS (INCLUDING, WITHOUT LIMITATION,  FINANCIAL ACCOUNT PROVIDERS), OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE XOBI SERVICE, THE ACCOUNT, AND IN EACH CASE ANY RELATED SERVICES AND ACCOUNTS AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE XOBI SERVICE OR ACCOUNT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  SMARTFINANCE HAS NO CONTROL OVER OR LIABILITY FOR ANY PRODUCTS OR SERVICES THAT ARE PROVIDED IN CONNECTION WITH, OR PAID FOR USING, THE XOBI SERVICE OR ACCOUNT AND CANNOT ENSURE THAT ANY THIRD PARTY YOU TRANSACT WITH WILL COMPLETE THE TRANSACTION. SMARTFINANCE DOES NOT REPRESENT OR WARRANT THAT THE XOBI SERVICE OR ACCOUNT WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR FREE, OR THAT DEFECTS OR ERRORS, INCLUDING IN THE TECHNOLOGY USED TO DELIVER THE XOBI SERVICE OR MAINTAIN THE ACCOUNT WILL BE CORRECTED.  FURTHER SMARTFINANCE DOES NOT REPRESENT OR WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE XOBI SERVICE OR ACCOUNT WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE XOBI SERVICE OR ACCOUNT WILL MEET YOUR EXPECTATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE XOBI SERVICE OR ACCOUNT WILL CREATE ANY WARRANTY OF ANY KIND NOT EXPRESSLY STATED IN THESE TERMS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE XOBI SERVICE OR ACCOUNT IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.  SMARTFINANCE SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION OR SETTLEMENT OF TRANSACTIONS. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

7.4. Not a financial planner, broker or tax advisor

NEITHER SMARTFINANCE NOR THE XOBI SERVICE OR ACCOUNT ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE.  SMARTFINANCE AND THE XOBI SERVICE ARE NOT FINANCIAL PLANNERS, BROKERS OR LEGAL OR TAX ADVISORS.

7.5. Force majeure. You understand and agree SmartFinance will not be held responsible for any losses or damages resulting from suspension of service for any reason, including due to extraordinary events or circumstances beyond our control. In such an event, SmartFinance may suspend the XOBI Service and access to your Account without prior notice or liability to you.

7.6. Assignment. You may not transfer or assign any rights or obligations you have under these Terms. SmartFinance reserves the right to transfer or assign any rights or obligations under these Terms at any time.

7.7. Applicable law. You agree that the laws of the State of New York, without regard to principles of conflict of laws, govern these Terms and any claim or dispute that has arisen or may arise between you and SmartFinance.

7.8. Complete agreement, no waiver, and survival. These Terms, as amended from time to time, along with any applicable terms and policies for the XOBI Service that you have agreed to set forth the entire understanding between you and SmartFinance with respect to the XOBI Service. Any failure of SmartFinance to enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any provision of these Terms held to be invalid or unenforceable under applicable law shall be struck, and the remaining provisions will continue in full force and effect. Sections 1 (Using the XOBI Service), 2 (Consent to receive electronic Communications), 5 (Disputes with SmartFinance), and 6 (General terms), as well as any other terms which by their nature and context are intended to survive, will survive any termination of these Terms, the XOBI Service and/or the Account.