Terms of Service
ONENOTARY.US TERMS OF SERVICE
EFFECTIVE AUGUST 11, 2022
IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “PLATFORM”) AND ASSOCIATED SERVICES (“SERVICES”) OF ONENOTARY, INC. AND ITS AFFILIATES, IF ANY, IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, ACCESSING THE ONENOTARY WEBSITE OR BY UTILIZING THE ONENOTARY PLATFORM OR SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TOS”). THE ONENOTARY, INC. PLATFORM AND SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THIS AGREEMENT.
These TOS are a contract between OneNotary, Inc., a Delaware corporation, (“OneNotary”) and you (“you,” “your,” and “End User”) (each a “Party” and collectively the “Parties”). OneNotary will provide the Platform and Services, and you may access and use the Platform and Services, in accordance with this Agreement. OneNotary may provide the Platform or any of the Services hereunder through its Afﬁliates. If you order features on the Platform or Services through an on-line registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the speciﬁc Platform feature or Service which you choose to use, those additional terms are hereby incorporated into this Agreement.
System Requirements. Use of the Platform and Services requires one or more compatible devices, internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Platform and Services involves hardware, software, and internet access, your ability to access and use the Platform and Services may be affected by the performance of these factors. High speed internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility.
1. DEFINITIONS. The following deﬁnitions apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa.
1.1. “End User” is any individual or entity who accesses the Platform or uses the Services in any capacity. End Users may fall into one or more of these categories:
1.1.1. “Signing Participant” means an End User that is designated to sign a document by a Subscriber, Other Participant, or another party in a Transaction.
1.1.2 “Other Participant” means an End User who participates in a Transaction, but not as a Signing Participant, at the request of a Subscriber, Signing Participant, Notary, or other party to a Transaction.
1.1.3 “Subscriber” means an End User that purchases Services or Platform access for a periodic or transaction-based subscription (“Subscription Plan”)
1.1.4. “Notary” means an End User that accesses or uses the Platform as a Notary.
1.2. “End User Data” means information provided to OneNotary so that OneNotary can fulﬁll the terms of the Agreement and provide access to the Platform (e.g. name, form(s) of identification, billing address, taxpayer ID number, e-mail, contact name and information).
2. PLATFORM AND SERVICES.
2.1. OneNotary’s Platform is an internet-based platform that facilitates remote notarization services by utilizing audio-video technology for the benefit of End Users. The Platform and Services are provided in accordance with applicable laws.
2.2. The Platform includes instructions for accessing the Services and completing a transaction (“Transaction”), which may include one or more of the following steps: (a) providing requested biographical information; (b) creating a unique username and password; (c) responding to a series of questions that facilitates the confirmation of End User’s identity; (d) if a Notary, uploading necessary licensure and credentials to establish your notarization qualifications; (e) uploading a scanned copy of the document for notarization; (f) following instructions provided by a Notary; (g) engaging in a recorded, online video meeting during which an assigned Notary will ask questions, review End User’s identification, witness End User’s signature, then provide a notarial seal; (h) paying the required fee; and (i) downloading the notarized document.
3. RESTRICTIONS. You may only use the Platform and Services pursuant to the terms of this Agreement. You are solely responsible for use of the Platform and Services and shall abide by, and ensure compliance with, all applicable laws in connection therewith, including but not limited to laws related to intellectual property, privacy and export control. Use of the Services is void where prohibited.
3.1. You shall not to reproduce, duplicate, copy, sell, resell or exploit access to the Platform, use of the Platform, or any portion of the Platform, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without the express written permission from OneNotary.
3.2. You will not use the Platform to:
3.2.1. modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the trade secrets, source code, or know-how underlying the Platform or any components;
3.2.2. interfere with or disrupt OneNotary’s networks, other End User accounts, or the provision of Services;
3.2.3. bypass or breach any Platform security device or protection, or access the Platform other than through End User’s Credentials;
3.2.4. engage in activity that is illegal, fraudulent, false, or misleading;
3.2.5. transmit through the Platform any material that may infringe the intellectual property or other rights of third parties;
3.2.6. build or benchmark a competitive product or service, or copy any features, functions or graphics of the Platform;
3.2.7. gain unauthorized access to or disrupt any third-party service, device, data, account or network, or to distribute spam or malware;
3.2.8. allow anyone without capacity to enter into legally binding contracts to access the Platform without the direction supervision and participation of a parent or legal guardian.
3.3. You may not reproduce, resell, or distribute the Platform or any reports or data generated by the Platform for any purpose unless speciﬁcally permitted to do so under a separate agreement with OneNotary.
3.4. You may not offer or enable any third parties to use the Platform or Services, display on any website or otherwise publish the Services, Platform, or any content obtained from a Service. Except for a valid Notary fee earned through the utilization of the Platform by a Notary, End Users may not generate income from the Services or Platform or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
4.1. To use the Platform, you must create an End User account in accordance with the Order Form and Platform instructions. You may not create more than one End User account or use another End User’s account. If you do not wish to provide the information required by the Platform to create an End User account, you can cancel account creation by closing the web browser window, and the information you entered will not be retained on the Platform.
4.2. You must provide true and complete information when creating your End User account, and must update your account information as necessary to keep it current, true, and complete. You may not use the Platform if your account information is not current, true, and complete.
4.3. You are responsible for ensuring the security and confidentiality of your username and password (“Credentials”), and for any individuals that you allow to access the Platform. OneNotary will not independently verify the identify of any individual using your Credentials and you are responsible for all activities that occur under your Credentials. If you access the Platform or Services on behalf of another person or Business, you represent that you have all rights and authority necessary to (a) act on behalf of the other person or Business and bind them to this Agreement, (b) access and use the Platform and Services, and (c) provide, access, transmit, and use End User Data as contemplated in the Agreement. You must immediately notify OneNotary if you become aware of any security breach concerning the Platform, including use of your account by someone else. OneNotary may disable your account, refuse future use of the Platform to you, and take other commercially reasonable steps to enforce this Agreement and protect the integrity of the Platform if you violate this Agreement, and/or if your account is used by someone else. OneNotary is not liable for any loss incurred by you due to such actions by us.
4.4. If you are accessing Services on behalf of a Business, then (a) all references to “you,” “your,” or “End User” as a contracting entity under this Agreement are references to the Business, (b) OneNotary may provide the Business with the ability to access, use, remove, retain, and control End Users’ Credentials and related End User Data, (c) your access to Services is governed by the Business’s agreement with OneNotary, including any Order Form, and (d) OneNotary may provide your personal information to the Business. If any End User accesses Services on behalf of multiple Businesses, OneNotary is not responsible for End User’s compliance with conflicting obligations it may have among those Businesses.
4.5. When a Notary End User creates an account, the Notary must upload to the Platform the Notary’s digital certificate and seal, a photograph for the online profile, notarial certificate forms, and other information as may be reasonably requested by OneNotary or required by applicable law.
4.6. OneNotary is not obligated to monitor activities on the Platform, but may investigate any complaints or violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing content or terminating accounts and/or End User proﬁles, or employing filters designed to detect and block inappropriate content. Under no circumstances will OneNotary be liable in any way for any data or other content viewed or relied upon while using the Platform, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.
5.1. Each party agrees to regard and preserve as conﬁdential all non-public information provided by the other party relating to the business, systems, operations, strategic plans, clients, pricing (including, but not limited to, the pricing terms herein), methods, processes, ﬁnancial data, programs, and/or products of the other party in any form, that are designated as “conﬁdential,” or a reasonable person knows or reasonably should understand to be conﬁdential (herein “Conﬁdential Information”). For purposes of the Agreement, your Conﬁdential Information shall include End User Data, and any information disclosed to OneNotary by you relating to the business, systems, operations, strategic plans, clients, pricing, methods, processes, ﬁnancial data, programs, and/or products of you.
5.2. Each party agrees to limit its disclosure of the other party’s Conﬁdential Information to as few persons as possible and only to those persons with a need to know that are its or its Afﬁliates’ personnel and subject to an obligation to keep such information conﬁdential. Except as needed to fulﬁll their respective obligations under the Agreement, neither party shall, without ﬁrst obtaining the other party’s prior written consent, disclose to any person, ﬁrm or enterprise, except as expressly permitted herein, or use for its own beneﬁt, or the beneﬁt of a third party, the Conﬁdential Information of the other party.
5.3. Conﬁdential Information shall not include End User Data or Content or information that (a) is already rightfully known to a party at the time it is obtained from the other party, free from any obligation to keep such information conﬁdential; (b) is or becomes publicly known or available through no wrongful act of a party; (c) is rightfully received from a third party without restriction and without breach of this TOS; or (d) is developed by a party without the use of any proprietary, non-public information provided by the other party under the Agreement. Either party may disclose Conﬁdential Information where required by law, regulation, or court order, provided that the party subject to such law, regulation or court order shall, where permitted, notify the other party of any such use or requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure of the information to third parties.
5.4. The conﬁdentiality obligations set forth in this section of the TOS shall remain in effect for a period of ﬁve (5) years from the disclosure of the information. Both parties agree (a) to take reasonable steps to protect the other party’s Conﬁdential Information, and these steps must be at least as protective as those the receiving party takes to protect its own Conﬁdential Information, and no less than a reasonable standard of care; (b) to notify the disclosing party promptly upon discovery of any unauthorized use or disclosure of Conﬁdential Information; and (c) in the event of any unauthorized disclosure by a receiving party, to cooperate with the disclosing party to help regain control of the Conﬁdential Information and prevent further unauthorized use or disclosure of it.
6. CONTENT AND END USER DATA.
6.1. You are solely responsible for the content (“Content”) and End User Data sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all Laws pertaining to the Content and End User Data, including, but not limited to, Laws requiring you to obtain the consent of a third party to use the Content and to provide appropriate notices of third-party rights.
6.2. You represent and warrant that you have the right to upload the Content and End User Data to the Platform and that such use does not violate or infringe on any rights of any third party. Under no circumstances will OneNotary be liable in any way for any (i) Content or End User Data that is transmitted or viewed while using the Services, (ii) errors or omissions in the Content or End User data, or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content or End User data.
6.3. Subject to the terms of this Agreement, you grant OneNotary a nonexclusive license to access (and to permit Notary End Users and OneNotary representatives to access and use) End User Data and Content for purposes of providing the Services, including to: (a) verify identities of End Users by OneNotary or third-party identity service providers; (b) capture and store data related to End User’s account, Transactions, and other Services provided to End User; (c) transmit or display End User Data or Content to other parties during Transactions, or to those with appropriate authority, or to other third parties as provided by relevant agreements or applicable law; and (d) store, maintain, display, and otherwise provide access to End User Data or Content in notary journals and other records of the Services and Transactions. OneNotary may delete any End User Data or Content, at any time without notice to you, if OneNotary becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights you already hold in End User Data or Content which you submit, post or display on or through, the Platform or the Services. End User agrees that OneNotary may collect, compile, analyze and otherwise use de-identified statistical data related to use of the Platform and Services.
6.4. OneNotary will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to End User Data and Content, in accordance with industry standards. OneNotary will notify you if it becomes aware of unauthorized access to your End User Data or Content. OneNotary has no other obligations with respect to End User Data or Content.
7. ELIGIBILITY. You may use the Platform only in connection with an online notarization. You must be over 18 to use the Platform. Your access may be terminated without warning if OneNotary believes that you are under the age of 18 or are otherwise ineligible.
8. CHARGES AND CANCELLATION.
8.1. You agree that OneNotary may charge to your credit card or other payment mechanism selected by you and approved by OneNotary (“Your Account”) all amounts due and owing for the Services and use of Platform. All payments made by you under this Agreement will be made free and clear of any deduction or withholding, as may be required by law.
8.2. In some cases, a Notary End User may directly invite a Signing Participant or Other Participant to the Platform. In such case, the Notary may determine the fee charged to the Signing Participant or Other Participant, subject to applicable law. In these circumstances, the Notary, the Signing Participant, and the Other Participant, as applicable, authorize(s) OneNotary to collect the applicable fee on the Notary’s behalf in accordance with this Agreement. OneNotary will retain a portion of the Notary End User’s fee as compensation for the Notary End User’s use of the Platform.
8.3. All End User payments are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including sales, use, and value added taxes), and End Users are responsible for the payment of all such charges, excluding taxes based on OneNotary’s income. If any such charges or taxes are required on any payment, you will pay such additional amounts as are necessary so that the net amount received by OneNotary is equal to the amount then due and payable under the Order Form and this Agreement. OneNotary will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
8.4. OneNotary may change prices at any time, including charging for any components of the Platform or Services that were previously offered free of charge; provided, however, that OneNotary will provide you with prior notice and an opportunity to terminate Your Account if OneNotary changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notiﬁed of the applicable fees and agreed to pay such fees. You agree that in the event OneNotary is unable to collect the fees owed for the Services through Your Account, OneNotary may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by OneNotary in connection with such collection activity, including collection fees, court costs and attorneys’ fees. You further agree that OneNotary may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
8.5. In the event that: (a) your identity cannot be confirmed; (b) you are unable or unwilling to complete the process to properly notarize your document; or (c) the Notary determines, in the Notary’s sole discretion, not to proceed with the notarial process, then you will not be required to pay for that transaction or, in the case of a Subscription Plan, such incomplete transaction will not count towards your allocated subscription totals, and your session will be terminated. In the event your notarized document is rejected, declined or refused, then OneNotary will work with You to find an acceptable resolution in accordance with its Refund Policy.
9.1. Except for Subscribers, you may terminate this Agreement and use of the Platform or Services at any time, and for any reason, by providing notice to firstname.lastname@example.org and following the provided instructions upon OneNotary’s receipt. OneNotary may terminate this Agreement immediately and retain any fees previously paid if End User violates the terms of this Agreement. OneNotary may also terminate the Agreement if it reasonably determines that continuing to provide Services to End User would violate applicable law.
9.2. Upon termination of an Order Form, (a) all Services and access to Platform, including Services or Platform access furnished under an applicable Subscription Plan, automatically terminate, and (b) any amounts owed to OneNotary are immediately payable.
10. PROPRIETARY RIGHTS. OneNotary and/or its suppliers, as applicable, retain exclusive ownership of all right, title, and interest in and to the Platform, including ownership of all intellectual property rights and activation codes, license keys, and registration information pertaining thereto. End Users only have the rights that are expressly granted under this Agreement. End Users rights with respect to the Platform are a limited, non-exclusive, non-sublicensable, revocable license. End Users rights with respect to the Platform are non-assignable, except as may be expressly permitted by OneNotary in writing. OneNotary may assign its rights with respect to the Platform at its discretion. The provisions of this Agreement also apply to any assignee. End User’s rights with respect to the Platform end automatically if End User breaches a provision of this Agreement. OneNotary’s name, logos, icons, and other trademarks may be used only with written permission. Other trademarks are displayed on the Platform for referential purposes only and are not intended to suggest or imply any affiliation with or endorsement by their respective owners.
11. CONSENT PURSUANT TO ESIGN ACT. By entering into the Agreement or using the Platform or Services, you (a) affirmatively consent to conduct Transactions electronically and to receive information and disclosures in electronic form and (b) agree to create or adopt and use an electronic signature to sign all Documents requiring End User’s signature or initials. You acknowledge and agree that your electronic signature and initials on a document are as valid and legally binding on you as your pen and ink signature and initials. You may have the right to receive disclosures on paper instead of electronically, but End Users who wish to receive paper disclosures should not agree to the terms of this Agreement or participate in Transactions on the Platform. This consent applies to all your transactions and records on the Platform. You accept that there is no option to have any records through Platform provided or made available on paper or in non-electronic form.
12. ELECTRONIC RECORD OF ONLINE NOTARIZATIONS.
12.1. The Platform creates and stores an electronic record of online notarizations, including a recording of the video and audio conference between the End User and the Notary. The electronic record also includes some or all of the following: (a) the date and time of the online notarization; (b) the type of notarial act; (c) the type, the title, or a description of the electronic document or proceeding; (d) the name and address of each End User involved in the transaction or proceeding; (e) evidence of identity of each End User involved in the transaction or proceeding in the form of (i) a statement that the person is personally known to the Notary or (ii) a record of the identity proofing and credential analysis; (f) the date of issuance and expiration for certain identification credentials; the fee charged for the online notarization; and/or (g) such additional information as may be required by state-specific laws applicable to online notarizations.
12.2. The electronic record of each online notarization, including the notary journal, is stored on the Platform, as well as in a backup, for such time as is required by state-specific laws applicable to the Services and Platform (“Required Retention Period”). End Users may access to electronic records of each online notarization during the Required Retention Period. If a Notary End User terminates its relationship with OneNotary during the Required Retention Period, all such records will be transferred to Notary End User upon request.
12.3. The notarized documents are retained and stored on the Platform for seven (7) days following the completion of the notarization session. You are responsible for downloading the notarized documents within such time period and OneNotary is not responsible for the continuing retention or storage of such documents following that time period.
12.4. In the event a Subscriber End User terminates this Agreement, Subscriber End User will have ninety (90) days after the effective date of termination to extract any Content or End User Data stored on the Platform. Outside of any records OneNotary must continue to retain pursuant to applicable law, OneNotary will promptly delete all other Subscriber End User data, records, or other information from the Platform after such ninety (90) day period.
12.5. You give OneNotary permission to record, copy, format, edit, store, and delete the information included in the electronic record of online notarizations, and to record, copy, format, edit, store, and delete the recording of the video and audio conference, in the course of the operation of the Platform.
13. INJUNCTIVE RELIEF. You acknowledge that any use of the Platform contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Platform, may cause irreparable injury to OneNotary, its Afﬁliates, suppliers and any other party authorized by OneNotary to resell, distribute, or promote the Platform (“Resellers”), and under such circumstances OneNotary, its Afﬁliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
14. SUBSCRIBER END USERS. THE TERMS CONTAINED IN THIS SECTION 14 APPLY TO SUBSCRIBER END USERS.
14.1. The Term of a Subscription Plan begins on the date reflected in the Order Form and remains in effect for the Subscription period listed in the Order Form. Unless otherwise stated in the Order Form, all Subscription Plans auto-renew for successive 12-month periods unless either party provides written notice of termination at least 30 days prior to the end of the current Subscription period. All fees associated with a Subscription Plan (“Subscription Fees”) are non-refundable unless otherwise stated in the Order Form.
14.2. Subscriber will pay the Subscription Fees described in the Order Form, which accrue beginning on the date listed in the Order Form. Any other applicable Services or other costs not included in the Subscription Fees shall be paid in accordance with the other terms of this Agreement or the Order Form. If Subscriber chooses automatic payment, Subscription Fees are charged automatically via Subscriber’s chosen payment method (provided it is accepted through the Platform) and in accordance with the terms of the Order Form. Subscriber authorizes OneNotary or its agent (such as Stripe) to charge Subscriber’s account on a recurring basis for all Subscription Plan fees, applicable taxes, and any other recurring charges incurred in connection with Subscriber’s use of the Services and Platform. In the absence of other payment terms included in the Subscription Order Form, Subscriber will pay invoices (a) in full, (b) in US Dollars, and (c) within 30 days of receipt to an account specified by OneNotary.
14.3. Upon termination of an Order Form, all Subscription Plans under that Order Form automatically terminate. On termination of a Subscription Plan, (a) any amounts owed to OneNotary under the Subscription Plan (including unpaid periodic Fees) are immediately payable, and (b) Subscriber’s rights to access and use the Services granted under the Subscription Plan immediately terminate.
15. NOTARY END USERS. THE TERMS CONTAINED IN THIS SECTION 15 APPLY TO NOTARY END USERS.
15.1. Notary End User acknowledges that Notary End User is providing notarizations for and on behalf of End Users requesting Notary services. Nothing in this Agreement constitutes an employment agreement or otherwise creates an employment relationship between Notary End User and OneNotary. Each Notary End User is an independent contractor for all purposes and at all times and has sole responsibility for, and control over, the methods and details of performing the Notary services.
15.2. Notary End User must at all times comply with OneNotary’s rules and policies to ensure legal and regulatory compliance of the Platform and the integrity of the notarial acts completed on the Platform. Notary End User will ensure the information on the Notary End User’s profile is accurate and complete at all times.
15.3. Notary End User will provide documentation to OneNotary as requested in its sole discretion that is sufficient to establish:
15.3.1. Notary End User’s authorization to perform remote online notarizations;
15.3.2. Proof of E&O insurance in accordance with industry standard policy limits satisfactory to OneNotary;
15.3.3. Completion of any required or necessary training courses; and
15.3.4. Compliance with such other requests OneNotary may reasonably require to ensure that Notary End User is acting in compliance with applicable law.
15.4. Notary End User is only permitted to perform notarizations through the Platform if and while Notary End User: (a) is authorized by the applicable commissioning jurisdiction to perform remote online notarizations; (b) has a valid digital certificate compliant with applicable law; and (c) is physically located within the territorial limits of the commissioning jurisdiction.
15.5. Notary End User will perform all notarizations in accordance with applicable law. Notary End User is responsible for ensuring that all Transactions Notary End User conducts through the Platform are completed in accordance with applicable law, including the use of all audio-video communication technology.
15.6. OneNotary will store copies of the electronic notarial records in accordance with this Agreement and as required by applicable law on behalf of Notary End User until Notary End User provides notice to OneNotary to stop acting as a repository of such records. Each Notary End User is responsible for maintaining their records in accordance with applicable law.
15.7. If Notary End User becomes the subject of an administrative inquiry, disciplinary proceeding or other legal action alleging a violation of notarial law or professional misconduct, the Notary End User shall provide immediate written notice to OneNotary and will provide such other follow-up information as OneNotary may reasonably request. If Notary End User’s commission is suspended or revoked for any reason, then Notary End User shall provide written notice to OneNotary and stop providing notarization services on the Platform until the Notary End User’s commission is fully reinstated.
15.8. This Section 15.8 supersedes all other indemnification provisions applicable to Notary End Users in this Agreement. Notary End User will defend, indemnify, and hold harmless OneNotary, its subsidiaries, affiliates, successors and assigns, and each of their respective employees, officers, directors, and representatives from and against any and all losses, liabilities, damages, expenses and costs (including, without limitation, reasonable attorneys’ fees, experts’ fees and court costs), arising out of or relating to any claim concerning: (a) any gross negligence or willful misconduct of Notary End User; (b) Notary End User’s breach of this Agreement; (c) any unauthorized use or possession of Content or End User Data; (d) performance of Notary End User’s notarial services; or (e) a violation of applicable law.
16. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONENOTARY PROVIDES THE PLATFORM “AS-IS,” AND DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT THE PLATFORM WILL BE “ERROR FREE” OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT SERVERS USED BY THE PLATFORM ARE FREE OF VIRUSES OR OTHER MALICIOUS SOFTWARE. END USER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR END USER’S USE OF THE PLATFORM.
17. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONENOTARY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, END USER’S USE OF, OR INABILITY TO USE, THE PLATFORM, EVEN IF ONENOTARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ONENOTARY IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER WHATSOEVER FOR THE CONTENT OF ANY DOCUMENT AVAILABLE THROUGH THE PLATFORM (INCLUDING CLAIMS OF INFRINGEMENT RELATING TO THAT CONTENT), FOR END USER’S USE OF THE PLATFORM, OR FOR THE CONDUCT OF OTHERS ON THE PLATFORM. ONENOTARY’S MAXIMUM AGGREGATE LIABILITY FOR AN END USER’S LOSSES OR DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, END USER’S USE OF, OR INABILITY TO USE, THE PLATFORM IS LIMITED TO THE RETURN BY ONENOTARY TO END USER OF THE AMOUNT END USER PAID FOR USING THE PLATFORM OR RECEIVING THE SERVICES.
18. INDEMNIFICATION. End User agrees to release, indemnify, and defend OneNotary, its employees, officers, directors, affiliates, and agents from and against any and all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, arising directly or indirectly from, or in any way connected with, End User’s use of the Platform and/or End User’s breach of any provision of this Agreement. OneNotary will promptly notify End User of any such claim and will provide End User, at End User’s expense, with reasonable assistance in defending the claim. End User will allow OneNotary to participate in the defense and will not settle any such claim without OneNotary’s prior written consent. OneNotary reserves the right, at its expense, to assume the exclusive defense of any matter otherwise subject to indemnification by End User. In that event, End User will have no further obligation to defend OneNotary in that matter.
19. ARBITRATION; CLASS ACTION WAIVER; JURY TRIAL WAIVER AND GOVERNING LAW.
19.1. Except for the option to litigate in a small claims court, any controversy or claim arising out of or relating to End User’s use of the Platform, the price of the Services or Platform, End User’s account, OneNotary’s advertising, marketing, or communications, End User’s purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation this Agreement, or the breach thereof, shall be settled on an individual basis by arbitration administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
19.2. The Consumer Arbitration Rules (“Rules”) are made a part of this Section 19, except for any changes to the Rules made by this provision. More complete information regarding arbitration procedures and arbitrator rosters, including a copy of the Rules and the means by which disputes can be submitted to arbitration, is available on the American Arbitration Association’s (“AAA”) website at adr.org/consumer, or by calling them at (800) 778-7879. THE PARTIES EACH WAIVE THEIR RIGHT TO FILE OR PARTICIPATE IN ANY CLASS ACTION, CLASS-WIDE ARBITRATION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY, AND AGREE THAT ANY PROCEEDING WILL BE CONDUCTED IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES.
19.3. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Section 19 and all subparts, including any claim that all or any part of this provision is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms of Service are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. The arbitrator may award declaratory or injunctive relief only in favor of the claimant, and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The arbitrator’s decision shall be final and binding on the Parties. The arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. Arbitration hearings will take place in the federal judicial district of your primary business location or residence.
19.4. The Parties retain the right to seek relief in a small claims court for a dispute within the scope of its jurisdiction. More complete information regarding procedures of a specific small claims court, including the means by which disputes can be submitted to the small claims court, is typically available online, or by calling the specific small claims court. The Parties agree and acknowledge that this Arbitration and Class Action Waiver provision evidences a transaction involving interstate commerce, and that the Federal Arbitration Act governs the interpretation and enforcement of this provision and proceedings pursuant thereto. It is the Parties’ intent that the Federal Arbitration Act and the AAA Rules shall preempt all state laws to the fullest extent permitted by law.
19.5. An arbitration claim must be filed within one year after the cause of action arises, unless applicable law provides for a shorter time.
THE PARTIES EACH WAIVE THE RIGHT TO A TRIAL BY JURY AND ACKNOWLEDGE THAT THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT. The parties agree that any question, conflict, requirement, interpretation, or disagreement related to notarizations or e-signatures (including validity) are governed by the laws of the Notary’s commissioning jurisdiction applicable to authorization, performance, or validity of traditional or remote online notarizations and the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. sec. 7001 et seq. (“ESIGN Act”), without regard to its conflicts of law provisions. Otherwise, the Agreement is governed by the laws of the State of Delaware, without regard to its conflicts of law provisions.
20. No Legal Advice. OneNotary does not provide legal services. The Platform is not legal advice, is for informational purposes only, and is not a substitute for legal counsel.
21. Submissions. You are requested not to submit to OneNotary any suggestions, comments, feedback, ideas, or other information about the Platform (“Submissions”) for which you expect to be compensated. If you do make such Submissions, they become our sole property without any compensation to you and are not confidential. You acknowledge that the exclusive ownership of all right, title, and interest in and to the Submissions, including ownership of all intellectual property rights pertaining thereto, belongs to OneNotary, and that you waive any moral rights to the Submissions.
22. Consent to Text (SMS) Messaging. To facilitate End User’s use of the Services and Platform, OneNotary and those acting on its behalf may send you text (SMS) messages at the phone number you provide us. Your use of the Services and Platform constitutes your consent to receive these text messages. OneNotary may send you an initial text message confirming your consent to receive these text messages and that will allow you to opt-out if you no longer wish to receive these text messages. If you opt-out, you may continue to receive text messages for a short period while OneNotary processes your request, and you will also receive a one-time text message confirming receipt of your request. OneNotary does not charge for the SMS Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply.
23. PRIVACY. Use of the Platform is also subject to OneNotary’s Privacy Statement.
24.1. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
24.2. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing in this Agreement is intended to confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
24.3. Any provision that should survive termination of this Agreement to fulfill its essential purpose, will survive, including but not limited to the sections addressing Proprietary Rights, Consent Pursuant to ESIGN Act, Electronic Record of Online Notarizations, Subscriber End Users, Notary End Users, Limitation of Liability, Indemnification, Arbitration and Class Action Waiver.
24.4. No joint venture, partnership, employment, or agency relationship exists between the Parties as a result of this Agreement or your use of the Platform.
24.5. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if you or your company have executed a separate written agreement or you have signed an Order Form referencing a separate agreement governing your use of the Services or Platform, then such agreement shall control to the extent that any provision of this Agreement conﬂicts with the terms of such agreement.
24.6. OneNotary may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. OneNotary will exercise commercially reasonable business efforts to provide notice to you of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on you. If you do not agree with the changes, you should discontinue using the Services. If you continue using the Services after such ten-business-day period, you will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, you may be notiﬁed that you are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.