Sertifi, Inc. Terms of Services Agreement
The following are the terms and conditions pursuant to which you (the “Customer”) may access and use the Sertifi service and system. This is a legally binding document that details the Customer’s rights and obligations relative to the customer’s access and use of the Service. The terms and conditions of the Customer’s access and use of the Service (“Terms of Service” or “TOS”) must be expressly accepted by the Customer prior to and as a condition to a Customer’s access and use of the Service. It is the Customer’s responsibility to understand and abide by the TOS and by all other policies and procedures promulgated and communicated by Sertifi that may supplement, modify or amend the TOS from time to time.
Whereas, Sertifi is a third party technology provider operating an “Online Signature” and “E-Sign Room” service and software to businesses.
Whereas, the services provided by Sertifi are limited to capturing and applying electronic and handwritten signatures to documents, delivering documents and files, and storing documents;
Whereas, Customer desires to use the services and software of Sertifi;
Whereas, the Customer, End-User (as defined below) and any one else accessing the Services provided by Sertifi are sometimes referred to herein as a “User”.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto acknowledge that the consideration recited herein is adequate and sufficient for their agreements and agree as follows:
1. Services. During the term of this Agreement Sertifi shall provide to Customer an internet web-based on-line signature and e-sign room service and software which allows the users thereof to create and send to third party email addresses requests for electronic signatures and allows users to electronically sign documents or fax handwritten signatures into the software provided by Sertifi (hereinafter referred to as the “Services”).
2. Rates and Payment Terms. Customer agrees to pay to Sertifi the Service Fee in advance in Monthly increments (if Monthly Service Package is selected) or in Annual increments (if Annual Service Package is selected) within thirty (30) days after the date of each invoice. If the Service Fee is not paid within thirty (30) days after the date of an invoice, Sertifi may impose interest at that rate equal to the lesser of one and one-half percent (1 ½ %) per month. Sertifi may change the amount of the Monthly or Annual Service Fee by written notice to Customer not less than ten (10) days prior to the date the change is to take effect. Further, in the event any sum of money due from Customer to Sertifi is not paid in a timely manner Sertifi shall have the right, in addition to its other rights and remedies, to discontinuing providing Services to Customer or terminate this Agreement and all of the obligations of Sertifi to Customer.
3. Commencement Date. The Commencement Date is the date on which Sertifi shall provide the Services to Customer. If any customizations are requested Customer and Sertifi shall cooperate with each other and each shall use its reasonable commercial efforts to implement Customer into the Sertifi software.
4. Term. This Agreement shall begin on the Effective Date and shall remain in effect until automatically renewing each month or annually until terminated by either party upon thirty (30) days prior written notice to the other party.
5. Enforcement of Electronic Signatures. The enforcement of documents signed with electronic signatures and facsimile signatures is an evolving area of the law. The Customer has the obligation to determine the enforceability of electronic signatures and facsimile signatures, the enforceability of any particular document signed with an electronic signature or facsimile signature, the risks as to the identity of the users signing with the use of electronic signature or a facsimile signature, to provide each party to a document with any disclosure or explanation required by law concerning the utilization of electronic signatures, facsimile signatures and the use of the Services, and to draft its documents to accommodate enforcement of the terms of the documents when signed with electronic signatures and facsimile signatures. Sertifi does not make and none of its employees, agents or representatives are authorized on behalf of Sertifi to make any representation or warranty as to the enforceability of any document signed with an electronic signature or facsimile signature nor as to coverage of any document under legislation, legality of legislation, enforceability of any documents, validity of any documents, or suitability of its Services or legality and enforceability of documents or transactions that pass through its Services. Sertifi does not provide any assurances electronic signatures or facsimile signatures are enforceability in a court of law or equity.
6. Rules, Policies and Procedures. Sertifi may promulgate certain rules, policies and procedures for the use of the Services and Customer shall abide by those rules, policies and procedures for the use of the Services disclosed from time to time by Sertifi to Customer.
7. Modification to Agreement. Any modification of this Agreement, or additional obligation assumed by any party in connection with this Agreement, shall be binding only if placed in writing and signed by each party or an authorized representative of each party. It is not a modification to this Agreement for Sertifi to change the interfaces, software, mechanisms and any other feature of the Services and delivery of the Services and Sertifi may do so.
8. Right to Services. The rights of Customer to the use of the Services are personal to Customer and neither those rights nor this Agreement shall be transferred, sold, licensed, leased, assigned, conveyed or otherwise permitted to be used, in whole or in part, to or by any person or entity other than Customer without the express written consent of Sertifi which consent may be conditioned or withheld for any reason or no reason in the sole and absolute discretion of Sertifi. Any transfer of substantially all of the assets of the Customer or a transfer of more than one-half of the shares of stock or other equity interest in the Customer shall be deemed an attempted un-permitted transfer of this Agreement.
9. Data Security, ID, Passwords, Signed Documents and Disclosure of Data.
A. Sertifi shall comply with reasonable industry standards precautions to not disclose Data to persons not a party to this Agreement; except (i) as convenient or necessary to perform the Services, (ii) as convenient or necessary for Sertifi’s internal record keeping, internal reporting and support purposes, (iii) to third parties bound by a confidentiality agreement to view Data only for the purpose of assessing Sertifi for a possible acquisition, (iv) a transfer of substantially all of the assets of Sertifi, and (v) as required by law, court order, subpoena, judicial or governmental administrative request or order, or to prosecute or defend the rights of Sertifi in a legal action.
B. Sertifi shall store and process information pertaining to Customer and End User using industry standard such as SSL encryption methods.
C. Sertifi shall provide mechanisms to provide to Customer information on the alleged identity of the End User signing documents using the Services; such as, email address, captured IP address of End User. Notwithstanding the foregoing, Sertifi does not guaranty nor warrant the identity of any End User. Customer agrees to be solely responsible to determine the identity of the End User and to assess the risk as to the End User with whom the Customer is transacting with and under what terms and as to the trustworthiness of the other parties to its transactions.
D. After documents or a Signature Stamp have left the Service or server of Sertifi, Sertifi shall not be responsible for the integrity of documents or a Signature Stamp. For example only and not by way of limitation, documents and signature stamps leave the server of Sertifi when a User forwards, accesses or stores a document or after a Customer closes its account with Sertifi and its documents and audit trails have been deleted from the server of Sertifi. This statement of lack of responsibility shall not be construed to impose liability upon Sertifi for the integrity or encryption of documents or Signature Stamps while in the Service or on the server of Sertifi.
E. Customer acknowledges that the Service relies on e-mail notifications to alert Users of signature requests and other information. Customer agrees that Sertifi is not responsible for Users failure to receive or send e-mails.
10. Lawful Use, Ethical and Moral Use. Customer agrees to use and to cause its End Users to use the Services only for lawful and ethical purposes. Customer shall not and shall cause its End-Users not to send unsolicited advertising, viruses or other harmful data using the Services or the Sertifi software or the Sertifi server. In the event Sertifi reasonable believes that Customer or any of its End Users are not in compliance with this provision, Sertifi may (i) immediately suspend Service to the Customer and (ii) may terminate this Agreement upon notice to Customer and (iii) may report unauthorized use to law enforcement authorities. Further, in the event Sertifi reasonable believes Customer or any of its End Users are not in compliance with this provision, Sertifi may delete from its servers all non-compliant information.
11. Storage of Information. For 30 days after a document is signed using the Service pursuant to this Agreement, Sertifi shall allow the Customer to download its documents and audit trails from the Sertifi server at no additional charge to Customer. The Customer and Sertifi may agree by a separate writing and the payment by Customer of an additional charge to extend the period of time. Thereafter, Sertifi may delete from its server all documents, audit trails, Data and any other information pertaining to Customer and its activity on the Sertifi server and its use of the Services. Sertifi does not guaranty that it shall store documents, audit trails, Data or any other information upon its server during the term of this Agreement or thereafter and Customer shall be responsible to make copies of all such information.
12. Service Availability. Sertifi shall use its reasonable commercial efforts to make available to the Customer and its End Users the Services. Customer agrees that factors beyond the reasonable commercial control of Sertifi may cause the Services to be unavailable to Customer and its End Users. In addition, Sertifi frequently updates software, backs up Data and performs maintenance during which times the Service will not be available to the Customer and its End Users.
13. Intellectual Property. The Service contains service marks, trade marks, copyrighted material, text, graphics, logos, images, software and icons and other intellectual property as well as proprietary information and confidential information owned by or under license to or otherwise controlled by Sertifi (hereinafter sometimes referred to as “Intellectual Property”). Customers shall not use and shall cause its End Users not to use the Intellectual Property except for the sole purpose of using the Services for their intended purpose. In particular and in limitation of the obligation of this provision, Customer shall not and shall cause it End Users not to use the name “Sertifi” except for the sole purpose of using the Services for their intended purpose.
14. Disclaimer of Warranties. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE SERVICE IS SUBSCRIBED AND USED BY AND PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS. NEITHER SERTIFI, NOR ANY OWNER, MEMBER, MANAGER, EMPLOYEE, AGENT AND/OR PROVIDER OF THE SERVICE, MAKES ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE, OR THE HARDWARE OR SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTY THAT PROVISION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. SERTIFI FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN. SERTIFI DOES NOT WARRANT THE SERVICE OR THAT ANY OR ALL ERRORS IN THE SERVICE WILL BE CORRECTED. SERTIFI DOES NOT WARRANT THAT INFORMATION, DATA OR DOCUMENTS WILL NOT BE LOST, TAMPERED WITH OR DELETED. NO OBLIGATION, WARRANTY, REPRESENTATION OR COURSE OF DEALINGS STANDARD SHALL ARISE OUT OF SERTIFI PROVIDING OR NOT PROVIDING THE SERVICE. IN FURTHERANCE HEREOF AND WITHOUT LIMITATION, USE OF THE SERVICE AND THE HARDWARE AND SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICE IS AT CUSTOMER’S SOLE RISK.
15. Limitation of Liability. IN NO EVENT SHALL SERTIFI OR ANYONE ELSE INVOLVED IN PROVIDING THE SERVICE BE LIABLE FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST INCOME, LOST PROFITS, PRESENT AND FUTURE, THE COST OF COVER OR LOSS OF USE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, EXPRESS OR IMPLIED, ACTIVE OR PASSIVE NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, STRICT LIABILITY, VIOLATION OF STATUTE, ORDINANCE OR REGULATION, FAILURE OF CONSIDERATION, OR OTHER BASIS, ARISING OUT OF THE PROVISION OF THE SERVICE HEREUNDER.
IN FURTHERANCE OF THE FOREGOING AND WITHOUT LIMITATION, SERTIFI WILL HAVE NO LIABILITY FOR DATA STORED OR USED WITH THE SERVICE, INCLUDING COSTS OF REPAIRING, REPLACING, OR RECOVERING SUCH DATA.
WITHOUT LIMITATION OF ANYTHING SET FORTH IN THIS AGREEMENT, CUSTOMER FURTHER AGREES THAT SERTIFI SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSION(S), ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSIONS, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF DATA, AND/OR FOR ANY ACTUAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM ANY SUCH ACTS, OMISSIONS OR EVENTS, INCLUDING, WITHOUT LIMITATION, LOST INCOME, LOST PROFITS, PRESENT AND FUTURE, THE COST OF COVER OR LOSS OF USE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, EXPRESS OR IMPLIED, ACTIVE OR PASSIVE NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, STRICT LIABILITY, VIOLATION OF STATUTE, ORDINANCE OF REGULATION, FAILURE OF CONSIDERATION, OR OTHER BASIS.
CUSTOMER ALSO AGREES THAT SERTIFI IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL SERTIFI AND/OR ANY SUBCONTRACTOR HIRED BY SERTIFI TO ASSIST SERTIFI WITH PROVIDING THE SERVICE BE HELD RESPONSIBLE OR LIABLE FOR SITUATIONS WHERE ANY DATA TRANSMITTED, STORED OR COMMUNICATED IN CONNECTION WITH THE SERVICE IS ACCESSED BY THIRD PARTIES THROUGH ILLEGAL OR ILLICIT MEANS OR MEANS NOT AUTHORIZED BY SERTIFI, INCLUDING SITUATIONS WHERE SUCH DATA IS ACCESSED THROUGH THE EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS (WHETHER KNOWN OR UNKNOWN TO SERTIFI AT THE TIME) WHICH MAY EXIST IN THE SERVICE AND/OR THE HARDWARE AND SOFTWARE UTILIZED AND/OR ACCESSED IN CONNECTION WITH THE SERVICE. IF CUSTOMER IS DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS OF SERVICE, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
TO THE EXTENT A COURT OF COMPETENT JURISDICTION FINDS THE TERMS OF THIS SECTION UNENFORCEABLE OR OTHERWISE IMPOSES LIABILITY UPON SERTIFI IN FAVOR OF CUSTOMER, SERTIFI SHALL NOT BE LIABLE FOR ANY DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE E-SIGN ROOM ONE-TIME SOFTWARE SERVICE SET-UP FEE PLUS THE E-SIGN ROOM ONE-TIME CUSTOMIZATION SET-UP FEE PLUS THREE MONTHS OF THE MONTHLY SERVICE FEE.
16. Indemnification of Sertifi. Customer shall defend Sertifi with legal counsel selected by Sertifi against any third party claim, action, suit or proceeding arising as a result of Customer’s or End User’s use of the Service, including failure to comply with laws, statutes, and regulations that are now or hereafter in effect relating to Customer’s or End User’s use of the Service, and shall pay and indemnify Sertifi for all losses, damages, expenses, and costs incurred by Sertifi (including reasonable attorney’s fees) as a result of any award, order or judgment entered against Sertifi in any such claim, action or proceeding.
Customer shall indemnify and hold harmless Sertifi from and against any and all losses, liabilities, penalties, awards, costs, and expenses (including reasonable attorney’s fees) that Sertifi may suffer or incur as a result of each and every occurrence of unauthorized access to Customer’s account, except unauthorized access or use by Sertifi itself. Customer hereby covenants not to sue Sertifi for any losses, costs, expenses of any kind or for any equitable relief as a result of any third party’s unauthorized access or use of Customer’s account, unless the proximate cause of such unauthorized use by such third party is the intentional wrongful conduct of Sertifi.
Customer shall indemnify and hold Sertifi and its subsidiaries, affiliates, officers, directors, managers, employees, agents and successors harmless from any suits, losses, claims, demands, liabilities, costs and expenses (including legal and accounting fees) that arise from (a) Customer’s use of the Service, (b) Customer’s failure to comply with any applicable laws and regulations, or (c) Customer’s breach of any of its obligations set forth in this Agreement.
17. Witness Charges. In the event Sertifi or any of its employees or other agents are called to testify as a witness or called to provide as a witness any documentation or information in a judicial or administrative proceeding in which the Customer or its End User is a party and Sertifi is not a party, Customer shall pay Sertifi a per diem fee equal to one hundred and fifty percent of the compensation paid by Sertifi to employee(s) who work on the production of the testimony or provide the documentation or information plus all travel, lodging and meal expenses of such employee(s).
18. Entire Agreement and Effect of Partial Invalidity. This Agreement and the exhibits and attachments hereto constitute the entire agreement between Sertifi and the Customer and supercedes all prior agreements and understandings and representations and warranties, whether oral or written. The invalidity of any portion of this Agreement will not, and shall not, be deemed to affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.
19. Section Headings. The titles to the Sections of this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of this Agreement.
20. Place of Suit. This Agreement shall be deemed to have been entered into at the principal place of business of Sertifi in Cook County, Illinois USA. Any action at law, suit in equity, or other judicial proceeding for the enforcement of this Agreement or any provision thereof, shall be instituted only in the courts of the Circuit Court of Cook County, State of Illinois USA or in the Federal District Court sitting in Cook County, Illinois, USA. Customer submits to the personal jurisdiction of the courts of the State of Illinois and the Federal District Court sitting in Cook County, Illinois USA.
21. Successors and Assigns and Assignment. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective heirs, personal representatives, administrators, successors in interest and permitted assigns. This Agreement is not assignable by Customer except as provided above. Sertifi may assign this Agreement and may assign or subcontract its obligations recited in this Agreement.
22. Law Governing. Sertifi and Customer agree that this Agreement and the performance hereunder, and all suits and special proceedings hereunder, be construed in accordance with, under and pursuant to the laws of the State of Illinois, and that in an action, special proceeding or other proceeding that may be brought arising out of, in connection with, or by reason of this Agreement, the laws of the State of Illinois shall be applicable and shall govern to the exclusion of the laws of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted.
23. No Party to be Deemed Draftsman. If an ambiguity shall appear in this Agreement, such ambiguity shall not be resolved by interpreting the Agreement against any party as the draftsman. The language of this Agreement shall be interpreted simply according to its fair meaning.
24. Relationship of the Parties. This Agreement shall neither be construed as creating a relationship of principal and agent between the parties to this Agreement, nor creating a partnership, joint venture or association of any kind between the parties. It is the purpose and intent hereof to create only a contractual relationship between the parties.
25. No Waiver. The failure of any party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.