TERMS OF SERVICE AGREEMENT (TOS)
The following are the terms and conditions pursuant to which you (the “Customer”) may access and use the websites and E-Sign services offered by Settleware Secure Services Inc. and its Third party providers (providers offering services integrated with the services offered by Settleware Secure Services Inc. and utilized by the Customer) collectively referred to as Settleware/Third party providers. 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 Settleware/Third party providers that may supplement, modify or amend the TOS from time to time. The right to use any product or service offered by Settleware/Third party providers is personal to you and is not transferable and cannot be, without limitation, sold or resold, licensed or sublicensed, leased or subleased, assigned or conveyed, in whole or in part, to any other person or entity without the express written consent of Settleware/Third party providers which Settleware/Third party providers may withhold or grant, in its sole and absolute discretion.
Description of Services
Settleware/Third party providers is a technology provider operating and providing an “Electronic Signature” and “E-Sign Room” service and software for clients. Utilizing this service, users have the ability to create and send electronic signature requests to third party email addresses providing the ability for users to sign these documents either electronically or via faxing handwritten signatures into the Settleware/Third party providers’s system. Settleware/Third party providers provides this service on an as is basis making no warranties or guarantees as to its use, function, or availability.
Transacting Business Electronically and Signing Documents
When using this Service, you agree to transact business using electronic communications, electronic records, and optionally electronic signatures rather than using paper documents. You may choose to add your electronic signature on any documents you send or that are sent to you. By using the service, you agree to use an electronic signature in lieu of a paper-based signature. You understand that recent legislation such as E-Sign and UETA have provided electronic signatures the legal equivalence of handwritten signatures on paper (just like your signing a piece of paper) and thus legally binding in the United States and in other countries. However Settleware/Third party providers does not make any warranties or guarantees as to the enforceability of E-Sign and UETA legislation for transactions and documents. You further agree not to electronically sign a document without first reading it, thus demonstrating that you are able to access the electronic information contained therein. You agree that you are aware that according to E-Sign you are not required to sign electronically if you prefer not to do so.
Enforceability of Electronic Signatures.
Settleware/Third party providers have outlined the process it uses to capture and apply electronic and handwritten signatures to documents and transactions (Refer to “How it works” section on www.settleware.com). E-Sign and other recent legislation provides protections equivalent of paper documents and handwritten signatures to electronic signatures. For certain documents, contracts, and transaction types electronic signatures may not be valid and may not be covered under such legislation as E-SIGN and UETA. In the United States, electronic signatures may not be used for the creation and execution of wills, codicils or testamentary trusts; adoption, divorce, or other matters of family law; court orders, notices or official court documents; any notice regarding the cancellation or termination of utility services; notice of default, acceleration, repossession, foreclosure or eviction, or the right to cure, under a credit agreement secured by, for a primary residence of an individual; the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities)/ recall of a product or material failure of a product that risks endangering health or safety; or any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials. The list of documents that may not use electronic signatures is subject to change and may vary from locality to locality. An initial list of excepted documents can be found in Section 103 of the e-Sign legislation. It is the Customer’s responsibility to assess the risks as to the identity of the users signing and enforceability of transaction and to determine if its particular document, contract, or transaction complies with and is covered under E-SIGN, UETA or laws, statutes, and regulations that are related to the Customer’s use of the service including, but not limited to, an electronic signature is a valid mechanism to sign its documents, contracts, or transactions, and the responsibility to provide its users with any disclosure or explanation required by law concerning the utilization of the service. Settleware/Third party providers as a disinterested third party technology provider does not make any representations or warranties as to coverage under legislation, legality of legislation, enforceability, validity, or suitability of its service or legality and enforceability of documents or transactions that pass through its service nor does it provide any assurances these signatures will be upheld in a court of law. Settleware/Third party providers does not guarantee the enforceability of signatures obtained through the Settleware/Third party providers system nor does Settleware/Third party providers guarantee that its service complies with all laws governing electronic or original signatures inside or outside of the United States. User shall defend Settleware/Third party providers against any third party claim, action, suit, or proceeding arising as a result of User’s use of service, including failure to comply laws, statues, and regulations that are now or hereafter be in effect relating to User’s use of Service, and shall pay and indemnify Settleware/Third party providers for all losses, damages, expenses, and costs incurred by Settleware/Third party providers (including reasonable attorney’s fees) as a result of any award, order or judgment entered against Settleware/Third party providers or third party in any such claim, action or proceeding.
Settleware/Third party providers reserves the right to collect, store, and maintain, but not request from the End User unless as is strictly necessary in the provision of the Services, various types of information about a Customer’s End User (the “Data”), including geographic Internet Protocol (IP) tracking, name, address, city, state, time, and others. However, Settleware/Third party providers shall not disclose the End User transaction and data to third parties or use the Data for any purposes except that Settleware/Third party providers shall have the rights (i) to use the Data or strictly necessary to perform the Services contemplated in the Agreement (ii) to maintain the Data as long as necessary or as required by law and used internally for record keeping, internal reporting, and support purposes: and (iii) to provide the Data as required by law or court order, or to defend Settleware/Third party providers’s rights in legal dispute.
Data Security, ID, Passwords, and Signed Documents
Settleware/Third party providers takes reasonable industry standard precautions to protect your data. Documents and other personal information are stored and processed using industry standard SSL encryption methods to protect that information. Settleware/Third party providers will not share your account information. Settleware/Third party providers periodically backs-up systems and maintains a secure repository for the storage of audit trails, documents, signatures, and user profile information. Customer is responsible for maintaining the confidentiality of Customer’s login ID and password and agrees not to transmit or share. Settleware/Third party providers cannot warrant or guarantee that information or documents will not be lost, tampered with, or deleted. User shall indemnify and hold harmless Settleware/Third party providers from and against any and all losses, liabilities, penalties, awards, costs, and expenses (including reasonable attorney’s fees) that Settleware/Third party providers may suffer or incur as a result of each and every occurrence of unauthorized access to User’s account, except unauthorized access or use by Settleware/Third party providers itself. User hereby covenants not to sue Settleware/Third party providers 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 Users account, unless the proximate cause of such unauthorized use by such third party is Settleware/Third party providers intentional conduct.
Settleware/Third party providers provide mechanisms to capture additional information on the identity of users signing documents through the Settleware/Third party providers services. Such mechanisms include verifying email address, capturing IP address of signers, and providing a group password mechanism. However, Settleware/Third party providers does not guarantee the identity of users signing documents and makes no warranties or guarantees as to the identity of users utilizing its service. It is the sole responsibility of the user to assess risk as to know who they are transacting with and under what terms and as to the trustworthiness of other parties in its transaction. Verifying Signature Stamps
Settleware/Third party providers cannot guarantee the validity or encryption of any documents or Signature Stamps once such documents or data leave the service or Settleware/Third party providers server, such as when a user is forwarding, accessing, or storing the data elsewhere or after a user has closed its account and deleted its documents and audit trails.
Notification of Signature requests
Settlware/Sertifi ‘s service relies on e-mail notifications to alert users of signature requests and other service information. Settleware/Third party providers cannot guarantee that users will receive emails or that emails will not be filtered, lost, diverted, deleted through the Internet or from providers or corporate systems or “spam” systems. Settleware/Third party providers cannot guarantee the reliability or security of e-mail and or service providers’ ability to process emails.
Settleware/Third party providers provides on” as is available basis” information on each signed document such as email address, IP address of document signers and date and time of transaction. This information in made available online for each transaction. User acknowledges that Settleware/Third party providers does not guarantee that it can collect all audit trail information for transactions as certain information may not be available for each transaction such as IP address or other audit trail information collected.
Customer and User Responsibilities
Customer agrees to use the Service for lawful and ethical purposes only. Sending unsolicited advertising, viruses, or other harmful data is prohibited. You agree to use generally accepted rules.
You may close your account at any time provided any contract term in the “Customer contract” has expired any applicable fees have been paid in full. After closing your account all your documents and transaction logs may be deleted. You will remain liable for all obligations related to any usage of the service.
Payment Terms and Conditions.
A one-time set-up fee, if applicable and the Monthly Service/Transaction Fees payable to Settleware by Customer for the installation and Customer’s use of the Service shall be charged at the rates shown on the “Customer contract”. The one-time set up fee, if applicable, shall be due and payable upon Customer’s receipt of Settleware’s notice to Customer that the initial installation has been completed. Customer shall be invoiced for the Monthly Service and Transaction Fees, monthly, which Fees shall be due and payable upon Customer’s receipt of Settleware’s invoice. Customer shall be deemed to be in default hereunder if payment of a Settleware invoice is not received by Settleware within ten (10) days after the date such invoice is received by the Customer and, in addition to its other remedies, Settleware may charge Customer interest at that rate equal to the lesser of one and one half percent (1? %) per month or the maximum amount permitted by law on all sums that remain unpaid at the expiration of such ten (10) day period. Settleware reserves the right to change the Monthly Service and Transaction Fees and/or the rates and formulae by which the Transaction Fees are calculated by notifying Customer at least ten (10) days in advance of any such change(s). CUSTOMER ACKNOWLEDGES THAT FAILURE TO MAKE TIMELY PAYMENT OF SUMS DUE AND OWING HEREUNDER WILL CONSTITUTE A DEFAULT AND BREACH OF THIS AGREEMENT AND IN SUCH EVENT, SETTLEWARE/THIRD PARTY SHALL HAVE THE RIGHT, AMONG OTHER THINGS, TO DISCONTINUE PROVIDING THE SERVICE TO CUSTOMER AND/OR TERMINATE THIS AGREEMENT AND/OR ANY OR ALL OF CLIENT’S RIGHTS HEREUNDER.
Customer shall indemnify and hold Settleware/Third party providers and our 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) your use of the Service, (b) your failure to comply with any applicable laws and regulations, or (c) your breach of any of your obligations set forth in this Agreement.
Customer agrees that if any term or provision in this Agreement is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
Settleware/Third party providers’s Rights and Disclaimers
Termination of accounts.
Settleware/Third party providers may terminate your access to any part or all of the Service and any related service(s) at any time, with or without cause, with or without notice, effective immediately, for any reason whatsoever. Settleware/Third party providers reserves the right without explanation, to deny service to any Customer that is suspected of unlawful activity, and to report this activity to the proper authorities. Settleware/Third party providers will have no obligation to notify any third parties nor will Settleware//Sertifi be responsible for any damages that may result or arise out of termination of the Service. Notwithstanding anything contained herein to the contrary or otherwise, upon the termination of the Service. Settleware/Third party providers shall not be liable to Customer because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits, goodwill or on account of expenditures, investments or commitments made by or on behalf of Customer, or for any other reason whatsoever flowing from such termination; provided, however, that the termination of this Agreement shall not release Customer from its obligations and liability to Settleware/Third party providers with respect to any Monthly or Transaction Fees that became due and owing prior to such termination. The limitation of liability set forth above shall apply to any claim, action or proceeding prosecuted by Customer as a result of Settleware/Third party providers’s termination of the Service.
Right to Modify Terms of service.
This Agreement constitutes the entire agreement between Customer and Settleware/Third party providers and supersedes all prior agreements and understandings, whether written or oral. Settleware/Third party providers may amend this Agreement at any time. Settleware/Third party providers reserves the right to change terms, policies, interfaces, pricing, mechanisms, software, or any other features of its service at any time.
DISCLAIMER OF WARRANTIES.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE SERVICE IS SUBSCRIBED TO CUSTOMER “AS IS” AND WITH ALL FAULTS. NEITHER SERTIFI, NOR ANY OWNER, MEMBER, MANAGER, EMPLOYEE, AGENT AND/OR SERVICE PROVIDER THEREOF, 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/THIRD PARTY FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN. SETTLEWARE/THIRD PARTY PROVIDERS /THIRD PARTY DOES NOT WARRANT THE SERVICE OR THAT ANY OR ALL ERRORS IN THE SERVICE WILL BE CORRECTED. NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF SETTLEWARE/THIRD PARTY PROVIDERS 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 AND SETTLEWARE/THIRD PARTY PROVIDERS SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL SETTLEWARE/THIRD PARTY PROVIDERS 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, SETTLEWARE/THIRD PARTY PROVIDERS 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 SETTLEWARE/THIRD PARTY PROVIDERS 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 OR REGULATION, FAILURE OF CONSIDERATION, OR OTHER BASIS. CUSTOMER ALSO AGREES THAT SETTLEWARE/THIRD PARTY PROVIDERS 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 SETTLEWARE/THIRD PARTY PROVIDERS AND/OR ANY SUBCONTRACTOR HIRED BY SETTLEWARE//Sertifi TO ASSIST SETTLEWARE/THIRD PARTY PROVIDERS 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, INCLUDING SITUATIONS WHERE SUCH DATA IS ACCESSED THROUGH THE EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS (WHETHER KNOWN OR UNKNOWN TO SETTLEWARE//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.
Settleware/Third party providers service is offered as a hosted service to users. Settleware/Third party providers retains all rights and ownership to all software, systems, processes, information, trademarks, and other intellectual property offered by and utilized by users.
Change of Ownership
In the event of change of ownership Settleware/Third party providers reserves the right to transfer and provide all customer information along with the technology, processes, and other business relationships.
The Service contains proprietary and confidential information and trade secrets of Settleware/Third party providers. All content including, but not limited to text, graphics, logos, images, software, and icons is the property of Settleware/Third party providers and is protected by applicable U.S. and international laws. Settleware retains the rights to “Settleware?” and you agree not to use it name without prior consent from Settleware.
Settleware/Third party providers provides reasonable efforts to ensure that its service functions properly and in a timely manner. However Settleware/Third party providers does not guarantee the availability of its service. Settleware/Third party providers frequently updates it services and services will not be available during system maintenance and upgrades.
Choice of Law.
This Agreement is governed and construed by the laws of the State of California