Last Updated: July 7, 2020
Welcome to Online Notary Center!
Online Notary Center, Inc. and its subsidiaries, including, Online Notary Center, LLC (collectively, “Online Notary Center”) offers a proprietary, web-based technology platform that allows authorized Subscribers, Signatories, Witnesses/Participants and Other Users to sign and Online Notary Center documents. The Platform is comprised of the website, API’s, Systems, Services, and mobile software applications available for Android and iOS devices (the “App”). The terms “Online Notary Center,” “we,” “us,” and “our” refer to Online Notary Center. Terms that are bolded or capitalized are defined in Section 32 below.
You are a “Visitor” when you visit the Platform. You are a “Subscriber” if you have registered to obtain Services via the Platform for your individual use or on behalf of another person, business or entity, or if you are acting in an authorized capacity on behalf of another person, business or entity which has registered to obtain Services via the Platform. You are a “Signatory” if you have been designated by a Subscriber to sign a Document as a principal signer in a Transaction. You are a “Witness/Participant” if you participate in a Transaction in any capacity in which you are not a Signatory, including for example as a witness to the Signatory’s signature, as a credible witness to the identity of the Signatory, or as an attorney, title agent, realtor or other person who is interested in the Transaction and who is participating in the Transaction with the authorization of and at the request of a Signatory, Subscriber, or other party to the Transaction. You are an “Other User” if you access or use the Platform and any user, account or transaction information or data in any other authorized and lawful capacity or manner this would include, without limitation, developers accessing our Platform, API or any associated documentation, a Notary accessing, using, or interfacing with the Platform. Collectively, Subscribers, Signatories, Witnesses/Participants and Other Users are “Registered Users.”
- Your Consent to Conducting Transactions by Electronic Means
1. Terms That Govern Your Use/Entire Agreement. Section 2 (General Provisions),
2. General Provisions.
2.2. Age of Participation. Our Platform is not designed for use by anyone under the age of 18 without direct supervision of, and with the express permission and participation of, a parent or legal guardian. It is your responsibility to ensure that no person participates on the Platform or in an audio-video session who is not authorized by you and legally permitted to participate. However, in no circumstance may anyone under the age of 13 use the Platform for any purpose.
2.3. Consent and License to Use of User Data.
2.5. Consent to Recording of Session Data, Audio Video, and Transaction
Information. You consent to our Platform creating a record of your session and the Transaction process. To the extent you invite others to participate with you in the session, you confirm to us, on their behalf, that they agree to participate and to be recorded as part of the session, and that it is lawful for them to so participate. The record of your session will be electronically stored by us, and may also be stored and viewed by other parties according to applicable agreements, your permission, or applicable law. The data from your session includes (i) your User Data, (ii) results of database searches, (iii) credential analysis and other processes authorized by law to validate your identity, (iv) the uploaded Documents and additional information about the Transaction, (v) session and connection information, (vi) all information required for the notary’s journal or Transaction record, and, (vii) where applicable given the Service requested, the recording of your audio-video session with a Notary or Identity Verification
Designated Agent and any other Signatories or Witnesses/Participants.
2.6. Consent to Participation by Others. You agree to the participation, in any meeting or session in which you receive Services, of Notaries, Identity Verification Designated Agents (where that Service is involved), other Signatories and Witnesses/Participants (such as, for example, title agents, attorneys, or realtors) who are requested or entitled by relevant agreements or law to participate, and others you have invited or agreed to be with you at the time of the session. You may cancel a meeting at any time if you do not wish to continue or do not believe any other person is entitled to participate.
2.7. Acknowledgement Concerning Applicable Notary Law. If you request any
Notarizations on or through the Platform, you acknowledge and agree that (i) the Notaries are commissioned by and operate in the state or commonwealth in which they are commissioned/licensed pursuant to such state’s or commonwealth’s Applicable
Notary Law; (ii) they perform the Services solely by virtue of such laws; (iii) you are explicitly requesting and invoking the Notaries’ authority under the Applicable Notary Laws, irrespective of your geographic location (or the Signatory’s, or Subscriber’s geographic location (as applicable)) at the time of the Services, and agree that the Notarization may proceed under and shall be governed by the applicable laws of such state; and (iv) the Notaries are performing the requested Notarizations in their state or commonwealth, regardless of whether you (or the Signatory or Subscriber (as applicable)) are accessing the Services from locations outside of that state or commonwealth. Online Notary Center only provides the Services because you acknowledge and agree to the foregoing, and would not provide the Services but for this acknowledgement and agreement.
2.8. Identity Verification Services. If you request Identity Verification Services for your Signatories, an Identity Verification Designated Agent acting on your behalf will perform the Identity Verification Services. Such an Agent may be a commissioned notary, but Identity Verification Services are not Notarizations, are not governed by any Applicable Notarial Law, and will not be accompanied by placement of a notarial seal or en tries in a notarial journal. Identity Verification Services are governed by our separate Identity Verification Agreement with you and will be conducted per your specifications, the requirements of specific government or third-party forms, as applicable, and by requirements of non-notarial law, if applicable. We will maintain a record of Identity Verification Services according to our separate Agreement with you, which record will include a record of the identity information provided by the Signatory to Online Notary Center, session information as specified, the recording of the audio-video session between the Signatory and the Identity Verification Designated Agent, and any Identity Verification Documents resulting from the Services.
2.9. Acceptable Use Policy. You shall not use the Platform in a manner that, in our sole discretion: (i) is illegal, facilitates illegal activity or violates any federal, state, or local law or regulation; (ii) violates the legal rights of others, including without limitation any Notary providing Services on the Platform; (iii) is defamatory, obscene, indecent, harmful, deceptive, threatening, abusive, harassing, tortious, sexually explicit or pornographic, discriminatory, violent, hateful or otherwise objectionable; (iv) attempts to impersonate another person or entity; (v) attempts to gain or to gain unauthorized access to or disrupt any third party service, device, data, account or network; (iv) that distributes spam or malware; (vi) to perform research for a competitive product or service; or (vii) in a way that could materially harm the functionality or performance of the Platform.
2.13. Confirmation of Identity, Capacity, and Freedom of Action. You confirm that you will provide truthful, accurate, and complete information in registering your account, in using the Services, in participating on the Platform, and in responding to questions or other requests by Notaries and Identity Verification Designated Agents acting through our Platform, and otherwise in communicating with us. You will also truthfully identify yourself for all purposes in connection with the Services. You also confirm and warrant to us that you are participating in the Services knowingly and intentionally for their intended purpose and that you are acting willingly without duress or coercion.
2.14. Outside the United States. If when you access the Platform or request the Services you are physically located outside the United States, you confirm to us: (i) that it is not illegal or prohibited in the jurisdiction where you are physically located to access and use the Platform or to obtain Notarizations or other Services from us; and (ii) that the Document or Transaction pertains to a matter before a court, governmental entity, public official, or other entity located in the territorial jurisdiction of the United States, or involves property located in the territorial jurisdiction of the United States, or a transaction substantially connected with the United States.
2.15. Export Control Laws. You represent and warrant that you will not access, download, use, export, or re-export, directly or indirectly, the Online Notary Center Data to any entity, government, location, territory, or person prohibited by Export Laws from receiving Online Notary Center Data (including, without limitation, to any end user in a U.S. embargoed country or territory or an end user included in OFAC’s list of Specially Designated Nationals or the U.S. Commerce Department’s Entity List or Denied Persons List) without first complying with all Export Laws that may be imposed by the United States or any other country or organization of nations within whose jurisdiction you operate. You are solely responsible for complying with the Export Laws for all Online Notary Center Data and any of its content transmitted through the Platform. For purposes of this clause, “Online Notary Center Data” means the Platform and any related information and documentation, and any derivatives thereof, that Online Notary Center makes available; and “Export Laws” the export control laws and regulations of the United States (including, without limitation, the U.S. Export Administration Act and the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”) regulations) and other jurisdictions.
2.18. Governing Law; No Class Actions; Arbitration of Disputes.
2.22. No Legal Advice. While accessing the Platform or receiving the Services, you may receive information from Online Notary Center concerning laws governing electronic signatures, electronic notarization, and other subject matter areas. This information and any content provided by Online Notary Center is for general informational purposes only and does not constitute legal advice. Online Notary Center and the Notaries or Identity Verification Agents you may access on the Platform are not lawyers or a law firm, are not licensed to practice law in any state, and are not providing you legal advice. You are responsible for obtaining professional legal advice concerning any and all aspects of the Services, your Documents, or your Transactions.
2.25. Communications. You consent to allow Online Notary Center or its Service Providers to contact you about a Transaction or for information relating to your use of the Services at any telephone number you provide (including any cellphone number, or any number that is converted into a cellphone number) using an autodialer and/or an artificial voice call. While you may revoke your consent for Online Notary Center or its Service Providers to call you using an autodialer and/or an artificial voice call, you may not revoke your consent for Online Notary Center to call you via any telephone that does not constitute an “automatic telephone dialing system” under the Telephone Consumer Protection Act. Online Notary Center or its Service Providers may also contact you via any email address that you provide to Online Notary Center.
2.27. Contact for Alleged Copyright Infringement. We respect the intellectual property rights of others and require that our users do the same. If you believe that content on the Platform or other activity taking place on the Platform constitutes an infringement of a work protected by copyright, please notify our agent, designated under the Digital Millennium Copyright Act (17 U.S.C. §512) (the "DMCA") to respond to such concerns, as follows: [email protected]. Your notice must comply with the DMCA. Upon receipt of a compliant notice, we will respond and proceed according to the DMCA.
YOUR CONSENT TO CONDUCTING TRANSACTIONS BY ELECTRONIC MEANS.
3. This Disclosure and Consent provides you with important information about using our Services and our Platform. In connection with each Transaction that brings you to our Platform to use our Services, you may be entitled by law to receive certain information “in writing” – which means you would be entitled to receive it on paper. If you choose to receive such information electronically, and also to conduct Transactions with us and to view, sign and access your Documents electronically, you must consent to do so. Your consent is set forth below.
3.1. Consent to Use Electronic Means; Scope. You agree to receive the Services and to conduct Transactions over our Platform by electronic means. You also consent to receive, by electronic means, all Documents and communications relating to your Transactions and involving the use of our Platform and our Services. We and any business involved in providing the Documents for which you are accessing our Platform and Services will communicate with you electronically, including over the internet and by email or through notices we post via the Platform. You are providing this Consent to us, and also for the benefit of all other parties providing Documents as part of your Transactions on our Platform. In addition to the foregoing, you consent to do all the following by electronic means rather than in paper form: (i) convey, receive, access and view Documents, (ii) acknowledge your signature, be placed under oath, or do those things necessary for all required Notarizations; (iii) communicate via an internet-based audio/video link with us, (iv) create an electronic signature and use it to sign all Documents, as required, and (v) view, access and receive all Documents, notices and communications, as electronic records, via email and an internet link which you can use to view, download or print for your records.
3.2. Withdrawal of Consent. You may choose not to consent to conduct Transactions and communications by electronic means, or to withdraw your consent at any time. To do so, please notify us at [email protected]. But if you do not consent to conduct Transactions and communications electronically as set out above, or if you choose later to withdraw your consent, you will not be able to participate in our Platform or use our Services, and will no longer be able to conduct new Transactions with Online Notary Center, as it is an electronic web-based service for Notarization, e-signing of Documents, identity verification and related Services. All actions taken by you before your withdrawal of consent, including the signing of Documents and participating in Notarizations, remain valid and enforceable even after a subsequent withdrawal of your consent to conduct transactions by electronic means.
3.4. Questions About Your Transaction Itself? If you have any questions about the underlying Documents or Transactions for which you wish to use our Services and our Platform, including what the Documents mean, please direct those questions to the party asking you to have the Document signed and/or Online Notary Centerd, or to its intended recipient, or to your attorney, who will be able to answer those questions for you.
3.5. Viewing Documents During and After Your Signing Session. Documents shown in the web browser during the electronic signing and Notarization process are a rendering of the actual Document. This rendering looks the same as the electronic Document, but has added features that facilitate the online viewing and signing process. If your signature is required and you choose to sign, your electronic signature will be placed by you on the Document. After the signing session, you may access and view your signed and Online Notary Centerd Documents using an internet link that will be provided to you after the session is complete.
3.6. Consent to Use Electronic Signature. You agree to create or adopt and use an electronic signature to sign all Documents or forms requiring your signature or initials. You understand that your electronic signature and initials on a Document or form are just as valid and legally binding on you like your pen and ink signature and initials.
3.8. System Requirements; Changes to Requirements. You understand and represent that your systems include, at a minimum, software and hardware as set forth below, and that you are able to access and use the Platform and our Services using your systems:
3.8.2. Internet access through an Internet Service Provider selected by you using a broadband connection sufficient to access the Platform and view, annotate and sign documents and to support a live, real-time audio video connection to a Notary;
3.8.3. Internet connected E-mail capability; and
3.8.4. A printer (if you want to print copies of electronic records).
3.8.5. Your Responsibility. You are responsible for configuring your system to accommodate the above computer requirements.
3.8.6. Changes to Requirements. If we change the minimum hardware or software requirements needed to access or retain records, and the change creates a material risk that you will not be able to access or retain a subsequent record, then before the change takes effect we will notify you of the new requirements via email. If you do not wish to meet the changed requirements, you will be entitled to terminate your account, according to Section 0 (Your Consent to Conducting Transactions by Electronic Means). Using our System after notification of such changes is reaffirmation of your consent.
8. Subscriber Fees and Payment. In consideration for the Services you receive as part of your chosen Subscription Plan, you shall timely pay to Online Notary Center the various fees specified on the Platform including in a Subscription Plan, at the time(s) specified on the Platform or, if applicable, by the Subscription Plan. These may include, as specified, monthly, annual or other periodic fees, as well as fees arising in connection with Transactions (such as per-notarization or per e-signed document fees), or other specific line-item fees for other Services. Unless the applicable Subscription Plan specifically states otherwise, the following general payment terms shall apply:
8.1. Time of Payment. All periodic fees (such as minimum commitment or platform fees which are payable monthly or annually) will be charged at the beginning of each period. All fees not included within the periodic fees, such as per-Notarization or per-e- signed Document fees or fees for other Services, or overages or other Services outside of the Subscription Plan, will be charged by Online Notary Center either at the time of each such Transaction or other Service, or on a monthly basis in arrears, according to the Subscription Plan or Online Notary Center’s standard practice.
8.2. Acceptable Payment Methods. All payments will be charged automatically via one of the payment methods accepted on our Platform (such as credit card or ACH direct deduct) as set up by you when establishing your account and choosing your Subscription Plan; and you authorize us to charge your credit card or other payment method for all charges at the times and in the amounts set forth in your Plan. You may change your payment methods from time to time so long as any new payment method is from the list of acceptable methods on the Platform. To be valid, each payment method must permit Online Notary Center to charge and receive payment of all amounts due, from time to time, under your Subscription Plan and for any other charges you incur.
8.3. Overages and Unused Transaction-related Items or Services. If the Subscriber exceeds the specified number of Transactions (including specified numbers of Notarizations or e-signed Documents) or other permitted Services offered under the Subscription Plan or included at a specific price, Subscriber’s payment method will be charged, on a pro-rata basis based upon Online Notary Center’s standard charges or, if different, the Plan’s established line-item charges, for each such excess Transaction, per- Notarization or other per-Document charge, or Service. Subscriber shall not be entitled to any prorata or other refund or credit on account of monthly or other periodic fees paid but for which the maximum number of permitted Transactions or Services were not fully used by Subscriber during the specified term.
8.4. Subscriber Invoicing. If we have agreed with you in a separate writing that you will be invoiced for payment, rather than being charged automatically pursuant to your Subscription Plan by means of an acceptable payment method, then you will pay to Online Notary Center in a timely manner according to all agreed payment terms and according to our invoices as set forth below.
8.4.1. Subscriber Payment Terms. The Subscriber shall pay invoices in full (without deduction, set-off, or counterclaim) within thirty (30) days from the date of the invoice in US dollars at Online Notary Center’s address or to an account specified by Online Notary Center. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. All payments on invoices are non-refundable.
8.4.2. Subscriber True-Up. If the Subscriber’s payment terms include pre-paid advanced fees which are explicitly intended to be applied against Transactions, Notarizations, e-sign Documents or other costs or other specified Services during an agreed term, then upon conclusion of the term, Online Notary Center shall determine if the Subscriber has ordered more Transactions, Notarizations or e-signed Documents, or otherwise obtained more Services, than covered by the advanced fees and, if so, Online Notary Center shall invoice the Subscriber for the additional Transactions-related acts or other Services on a pro-rata basis based upon the provisions governing the advanced fee payment. Unless another agreement has explicitly been made in writing, Subscriber shall not be entitled to any pro-rata or other refund or credit on account of pre-paid advanced fees explicitly intended to be applied against Transaction-related costs or other specified Services during an agreed term, but for which the maximum number of Transactions or Services were not fully used during the specified term.
9. Subscriber Responsibilities in Obtaining Services.
9.1. Subscriber Transaction Requests; Designating Signatories and
Witnesses/Participants. After setting up an account and agreeing to make payment as set forth on the Platform including in a Subscription Plan, a Subscriber may access the Services available under the chosen Plan. To perform a Transaction on the Platform, Subscriber will initiate a Transaction Request (defined below).
9.1.1. A Subscriber, such as a consumer, may initiate a Transaction Request for himself or herself by designating himself or herself as the Signatory in the Transaction.
9.1.2. A Subscriber which is a business entity may initiate a Transaction Request for a designated Signatory (including, for example, a customer or employee) who needs to have one or more Documents signed or Online Notary Centerd for use with the Subscriber.
9.1.3. As appropriate for the specific Transaction, any Subscriber may designate Signatories and/or Witnesses/Participants to participate in a Transaction (up to the number of such persons then-permitted to participate on the Platform under Online Notary Center’s then-applicable rules and functionality). In accordance with procedures established by Online Notary Center and available on the Platform, Witnesses and/or Participants may be invited into the Transaction session after the initial Transaction Request and during the session itself.
9.1.4. Upon receipt of a complete Transaction Request, Online Notary Center will use commercially reasonable efforts to process compliant Transaction Requests for Services within the period specified in the Transaction Request.
9.2. Subscriber Use of Application Programming Interface. Subject to availability, and if offered by Online Notary Center, the Subscriber has the option of using a Online Notary Center API to streamline the submission and processing of Transaction Requests. The Platform provides specifications and other information needed for the Subscriber’s implementation of the API. Online Notary Center will provide reasonable support to assist the Subscriber in implementing the API, per the Support Services.
9.3. Subscriber Transaction Volumes. Online Notary Center structures its Services based upon reasonable projections respecting the volume of Subscriber Transaction Requests. In the event of an unanticipated spike in volume, Online Notary Center shall be entitled to reasonably postpone (or decline) a Subscriber Transaction Request.
9.4. Accuracy of Subscriber Transaction Documents; Permitted Signing; Level of
Authentication Required. The Subscriber is solely responsible for the accuracy, content, legality, and nature of (i) the Transaction Documents (and all information contained therein) in the form delivered to Online Notary Center, and (ii) all other User Data that is submitted by the Subscriber or its Signatories in connection with the Services. Subscriber is solely responsible for determining whether any particular Transaction and any associated Document(s) (i) may be electronically signed by Signatories and Witnesses under any applicable laws governing such Documents, including but not limited to Applicable Electronic Signature Laws or Applicable Notary Laws; (ii) complies with the requirements of any applicable governing body or agency standards, rules or guidelines; and (iii) that the Document’s intended recipient is willing to transact using electronic means and will accept it. Subscriber is further responsible, with respect to esigned- only Documents, for determining when in the transaction flow a particular Document will be executed (such as before or during a meeting with a notary) and the level of signer identity authentication it considers appropriate for such Documents given the nature of the Transaction, and for then choosing the Service appropriate for the Document.
9.5. Subscriber Systems. The Subscriber is responsible, at its expense, for operating and maintaining its Subscriber Systems. The Subscriber is responsible for corresponding backup, recovery, network security and maintenance service for the Subscriber Systems.
9.7. Protecting Passwords; Responsibility for Activities. The Subscriber shall maintain its username(s) and password(s) associated with the Platform in confidence, and will not disclose this information or make it accessible to unauthorized persons. Subscriber is responsible for all activity occurring under accounts that are registered under, or related to, Subscriber’s account for which Services are being provided. If Subscriber is a business or entity, it will ensure that only those persons within its organization who have the required and appropriate authority and permissions have access to the passwords and therefore to the Platform, to its account and administrative functions, to the functionality for administering or viewing Transactions, and to User Data. Online Notary Center will provide persons with the Subscriber’s access credentials with all of the rights and privileges that it provides to the Subscriber, and will hold the Subscriber responsible for the activities of a person using the Subscriber’s access credentials.
10. Relationship with Subscriber’s Signatories and Witnesses/Participants and Other
11. Subscriber Support and Maintenance.
11.1. Support Services. Online Notary Center will use commercially reasonable efforts to provide the Subscriber with support services (the “Support Services”). The Support Services may include, depending on the Subscription Plan selected: (i) new account onboarding; (ii) API integration support; (iii) customer success support; (iv) email support; and (v) phonebased support. Before submitting a support request, the Subscriber shall first review all support information available on the Platform and in user documentation (as such may be available).
11.2. Subscriber Maintenance Services; Availability. Online Notary Center shall, using commercially reasonable efforts and commercially reasonable response and resolution times, during Service Business Days: (i) correct material errors reported by the Subscriber and (ii) make the Platform available to the Subscriber without material interruption for purposes of processing Transactions, subject to reasonable downtime for maintenance and error corrections.
11.3. Additional Support and Training Terms Applicable to Subscriber. Online Notary Center is entitled to charge the Subscriber, according to Online Notary Center’s (or its Service Providers’) then-current pricing and other applicable policies, for provision of Support Services required due to (i) problems, errors, or inquiries caused by the Subscriber’s acts or omissions, issues with the User Data or the Subscriber Systems, and (ii) excessive requests for Support Services beyond that available under Subscriber’s current Plan. Online Notary Center is also be available to offer reasonable additional support and training under separate, mutually agreeable terms and conditions.
12. Online Notary Center and Subscriber Licenses; Grant of Rights; and Ownership.
12.2. Online Notary Center License to Subscriber for User Documentation and API. Online Notary Center grants to the Subscriber, during the term and under its Intellectual Property Rights, a nonexclusive license to access and use (but not modify) solely in connection with the Subscriber’s use of the Platform: (i) user documentation (where provided); and (ii) each API, to the extent available and, if available, to the extent the Subscriber chooses to access the Platform through an API.
13. Representations and Warranties.
13.1. Mutual Representations and Warranties applicable to Online Notary Center and
14. Confidentiality. This Section governs the protections for Confidential Information that one Party (the “Disclosing Party”) provides to the other (the “Receiving Party”) under this Agreement.
14.1. Scope. Subject to Section 14.2 (Exceptions), the term “Confidential
Information” means information a Registered User or Online Notary Center (each, as applicable, a “Disclosing Party”) discloses or provides to the other (each, as applicable, a “Receiving Party”), or that a Receiving Party accesses from the Disclosing Party that meets one of the following two criteria: the Information either (i) is identified by a “CONFIDENTIAL” legend or similar legend of the Disclosing Party, or (ii) is obtained under circumstances such that the Receiving Party knew or reasonably should have known that the Information should be treated as confidential to the Disclosing Party. Subject to Section 14.2 (Exceptions), Confidential Information includes information in any form or medium (whether oral, written, electronic, or other) and includes inventions; specifications; drawings; models; samples; reports; plans; financial information; workin- progress; forecasts; computer programs or documentation; trade secrets; know-how; strategies; User Data including any Registered User’s non-public personal information as that term is defined by the Gramm Leach Bliley Act, 15 U.S.C. Sec. 6801 et seq., and all other technical, financial, intellectual or business information or data. By way of example and not limitation, Confidential Information of Online Notary Center includes the System and the User Documentation.
14.2. Exceptions. The Parties’ obligations of confidentiality and non-use shall not apply where the Receiving Party shows that the information (that would otherwise qualify as Confidential Information): (i) is or after the Effective Date becomes publicly available or part of the public domain through no wrongful act, fault, or negligence on the part of the Receiving Party; (ii) was in possession of the Receiving Party at the time of the Receiving Party’s receipt of the Confidential Information, and was not otherwise subject to an existing agreement of confidentiality; (iii) is received from a Third Party without restriction and without breach of any obligation of confidentiality to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reliance on the Disclosing Party’s Confidential Information.
14.4. Compelled Disclosure. Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) unless legally prohibited from doing so, promptly notify the Disclosing Party in writing of such requirement to disclose and (b) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.
14.5. General Skills and Knowledge. Due to the specialized nature of the Services and the limited pool of individuals qualified in this subject matter, it is agreed and understood that the provisions of this Section 14 (Confidentiality) do not apply to Residual Knowledge (if any) of Online Notary Center personnel or to the use and improvement of other general skills and knowledge such personnel. The term “Residual Knowledge” means Confidential Information in a non-tangible form that is retained in the unaided memory of persons who have had rightful access to such information.
Related Claim”), and, subject to the damage limitations, to indemnify Online Notary Center for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such Subscriber-Related Claim.
15.4. Conditions to Indemnification. The indemnifying Party’s obligations hereunder are conditioned on (i) the Party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party’s expense) and (ii) the indemnifying Party having sole control and authority to defend, settle or compromise such claim. The indemnified Party may participate in the defense at its sole cost and expense. The indemnifying Party will not enter into any settlement that adversely affects the indemnified Party’s rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying Party shall not be responsible for any settlement it does not approve in writing.
16. Remedies; Limitations on Remedies.
16.1. Right to Corrections with Subscriber. If the Services do not conform to the representations and warranties set out in subsections (i) through (iv) of Section 13.3 (Online Notary Center Representations and Warranties to Subscriber), upon notice of the nonconformity emailed to [email protected] (a “Notice of Non-Conformity”), Online Notary Center shall correct, at no cost to the Subscriber, such non-conforming Services so that they comply with such representations and warranties (a “Compliant Service Correction”). This Section 16.1 (Right to Corrections with Subscriber) shall be the Subscriber’s sole and exclusive remedy for the non-conforming Services.
16.1.1. Assistance to Correct. The Subscriber will provide Online Notary Center with commercially reasonable assistance with its provision of Compliant Service Correction.
16.1.2. Purpose of Assistance to Correct. The Subscriber acknowledges that its obligations pursuant to Section 16.1.1 (Assistance to Correct) are necessary to Online Notary Center’s ability to mitigate non-conformities to the applicable representations and warranties set out in Section 16.1 (Right to Corrections with Subscriber).
16.2. Consequential Damages Waiver. In no event shall either party be liable to the other party for any indirect, incidental, punitive, special, or consequential damages of any kind or nature whatsoever, including without limitation any claim of loss of profits or arising out of loss of data, loss or interruption of use, cost to procure substitute technologies or goods or services, or any other indirect or consequential economic loss, even if such party has been advised of the possibility of such losses or damages.
16.3. Non-Acceptance or Invalid Notarization. Except as otherwise provided in the above Section 16.1 (Right to Corrections with Subscriber), if a Document (i) is not accepted by your intended recipient due to any act or Service provided or facilitated by us, including a Notarization, or (ii) is later found invalid by a court of competent jurisdiction based upon the Notarization or any act or Service provided or facilitated by us; or if any other Service provided by Online Notary Center is deemed defective, invalid or ineffective in any way; then Online Notary Center will refund all fees, if any, you have directly and personally paid to Online Notary Center for the Service in question (a “Full Refund”). The payment by Online Notary Center of a full refund shall be your sole and exclusive remedy arising out of or relating to nonacceptance or invalidation of the Notarization or other Service in question, and for any claimed damages resulting from such non-acceptance or invalidation or defect based upon the Service. It is your responsibility to verify that your Document is eligible for electronic signature and notarization, that your intended recipient is willing to transact using electronic means and will recognize as valid and accept an e-signed Document or a Document Online Notary Centerd via audio- video communication under Applicable Notary Law, and that the e-signed or Online Notary Centerd Document will be legally valid and binding for your intended purposes. You must consult and rely on your legal counsel for determinations as to such eligibility, validity, and acceptance.
17.1. Subscriber Termination. Unless otherwise stated in the applicable Subscription Plan the Subscriber may cancel their Subscriber Plan by following the instructions on the Platform to terminate the Subscriber’s Plan. The Subscriber owes, and will be charged and obligated to pay all unpaid periodic fees and shall not receive any refunds for fees previously paid as part of a Subscription Plan if the Subscriber terminates the Plan before the then-current period of the Subscription Plan ends.
17.3. Termination for Cause. Either Party shall be entitled to terminate a Subscriber Plan or other written agreement then in effect between the parties for material breach by the other, upon providing notice to the other Party (a “Notice of Breach”) and a thirty (30) day period to cure, commencing on such Party’s receipt of this notice (the “Cure
Period”). If the Party in breach does not effect a cure within the Cure Period, the Subscriber Plan or other agreement shall be deemed terminated as of the date of the Notice of Breach. If Online Notary Center terminates a Subscription Plan for cause, the Subscriber will be charged and obligated to pay all unpaid periodic fees and shall not receive any refunds for periodic fees previously paid as part of a Subscription Plan. If the Subscriber terminates the Subscription Plan for cause, the Subscriber shall be entitled to a pro-rata refund of its most recent period fee charged and paid in advance, representing the unused portion of its most recent periodic payment under its then-current Subscription Plan or other Agreement.
20. Business Subscriber Private Label Branding. If Online Notary Center agrees, in its sole discretion after request from a Subscriber which is a business entity (a “Business Subscriber”), to private-label Services under one or more of the Business Subscriber’s trademarks, service marks, or logos (the “Business Subscriber Marks”), then the requirements set out in Section 21 (Use of Marks) apply as to Online Notary Center’s use of the Business Subscriber Marks in relation to such private label branding.
21. Use of Marks.
21.1.3. Cessation of Permissions. Business Subscriber shall be entitled to end Online Notary Center’s use of the Business Subscriber Marks and Online Notary Center shall be entitled to end Business Subscriber’s use of Online Notary Center’s Marks after notice and a reasonable wind-down period.
21.1.4. Business Subscriber Publicity. The Business Subscriber consents to the inclusion of its name and logos in customer lists that may be published as part of Online Notary Center’s marketing and promotional efforts.
22. Subscription Plan Order Form Additional Terms and Conditions. If you have executed a Subscription Plan Order Form, you will be charged a Base Transaction Fee. Unless otherwise specified in the Subscription Plan Order Form, the Base Transaction Fee includes (a) two co-located signers, (b) one or more e-signed documents, and (c) one notary seal. Additional fees outlined as “Transaction Add-Ons” will be incurred in the event Subscriber requires additional Service add-ons for any given Transaction. Any applicable Platform Access Fees will be charged to Subscriber at the beginning of each month. Subscriber will be charged monthly in arrears for the greater of Subscriber’s monthly billable Transaction Fees (including any Transaction Add-On Fees) incurred (unless otherwise paid for by Subscriber’s customer) or the Monthly Minimum Commitment. Questions regarding payment can be directed to [email protected]. If agreed to by Online Notary Center, Transaction Fees may be billed directly to Subscribers customer and will be due immediately upon Transaction completion. During the Initial Term, the fees are fixed. After the Initial Term, this Agreement will automatically renew for subsequent 12 month terms (each, a “Renewal Term”) unless either Party provides the other Party with written notice of termination at least 15 days prior to the end of the then-current term. “Term” means collectively the Initial Term and any Renewal Terms. Online Notary Center may increase fees during the Renewal Terms by providing written notice to Customer at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term and such fee increase shall be effective for the immediately subsequent Renewal Term(s).
24. Agreement to Participate; Authentication of Signatories, Witnesses and Other
24.1. Verifying Identity of Signatories, Witnesses and Participants.
24.1.1. Depending on the Service you are receiving you may be required to have your identity verified by means of the Authentication Services. You agree to participate fully and truthfully in the identity verification process.
24.1.3. If you are part of a session in which a Notary or Identity Verification Designated Agent is present, you agree that, upon your instruction the Notary or Identity Verification Designated Agent may move or delete annotations on Documents on your behalf. This includes, but is not limited to, moving or deletion of signatures, dates, and initials you placed on the applicable Document.
26. Responsibility for Fees. In the email invitation to participate as a Signatory on the Platform, the Subscriber (which for example could be a business you’re working with and which needs you to get a Document Online Notary Centerd) indicated whether they or you would be responsible for the fees for Online Notary Center’s Services. If you are responsible, payment is due in full at the time such Services are provided to you. If the Subscriber is responsible, they will pay Online Notary Center separately and you will not be responsible for payment. A Witness/Participant or Other User is not responsible for paying fees to Online Notary Center for his or her participation, in that capacity, in a Transaction on the Platform.
28. Limitations on Remedies.
28.1. Consequential Damages Waiver. In no event shall either party be liable to the other party for any indirect, incidental, punitive, special, or consequential damages of any kind or nature whatsoever, including without limitation any claim of loss of profits or arising out of loss of data, loss or interruption of use, cost to procure substitute technologies or goods or services, or any other indirect or consequential economic loss, even if such party has been advised of the possibility of such losses or damages.
30. Payment Processing. If you are a Notary accessing or using the Platform as an independent contractor, payment processing services are provided by Stripe and subject to the Stripe Connected Account Agreement (currently available at https://stripe.com/us/connect-account/legal), which includes the Stripe Services Agreement (currently available at https://stripe.com/us/legal) (collectively, the "Stripe Terms"). By using the Platform to receive payment proceeds, you agree to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Online Notary Center enabling payment processing services through Stripe, you authorize Online Notary Center to obtain all necessary access and perform all necessary activity on your Stripe Connected Account to facilitate your provision of Notarizations as contemplated by the Agreement and your relationship with Online Notary Center. You further agree to provide accurate and complete information about you and your business, and authorize Online Notary Center to share it and transaction information with Stripe for the purposes of facilitating of the payment processing services provided by Stripe. Online Notary Center reserves the right to switch payment processing vendors or use alternate or backup vendors in its discretion and we will provide you notice when if we do change payment processors.”
32.1. “API” means the application programming interface(s) designed by Online Notary Center or its Service Providers to permit certain parties (i) to submit Documents and requests for Services and (ii) to receive responses from the Platform in an automated manner.
32.2. “Applicable Electronic Signature Law” means (a) for Online Notary Center’s Services involving a Notarization, the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. sec. 7001 et seq. (“ESIGN”) and the electronic signature laws of a Notary’s commissioning state or commonwealth in which Applicable Notary Law permits electronic notarizations, including remote online notarizations, and (b) for all other Services that do not involve a Notarization, ESIGN and the electronic signature laws of the Commonwealth of Virginia.
32.3. “Applicable Notary Law” means the notarial and other applicable laws of each United States state, commonwealth or Territory which has authorized its notaries toperform Notarizations, including traditional as well as remote online Notarizations, and in which Online Notary Center facilitates access to Notarizations performed by notaries duly commissioned in such a state, commonwealth or Territory.
32.4. “Authentication Services” means, with respect to a Notarization requiring identity verification and the signing of any non-Online Notary Centerd Documents included as part of the same Transaction and unified session as a Notarization, such identify-verification methods and procedures as may be required or permitted by Applicable Notary Law, including: identity verification, using third-party identity database services combined with video and audio conference technology (or other permitted technology) that allows the Notary to communicate with and identify the Signatory at the time of the Notarization, or such other methods that are consistent with applicable Notary Law whether or not specified as a requirement. With respect to Transactions involving Documents which are e-signed outside the context of a unified session involving Authentication Services for Notarizations, Authentication Services include such identity- verification methods as may be specified by law, if applicable, or identity confirmation by a Signatory in response to a link sent to the Signatory inviting him or her to sign Documents, or as otherwise specified in any additional agreements between Online Notary Center and the parties requesting and using such e-signature services.
32.5. “Document” means a document in electronic form that the Subscriber (or one of its Signatories) presents on the Platform to be signed, Online Notary Centerd or otherwise used in connection with a Transaction or other Services.
32.7. “Identity Verification Designated Agent” means an individual engaged by Online Notary Center to provide Identity Verification Services. The Identity Verification Designated Agent may be a commissioned notary, but will not be performing a Notarization when performing Identity Verification Services as an Identity Verification Designated Agent.
32.8. “Intellectual Property” or “Intellectual Property Rights” means (i) Patent Rights; (ii) rights under trademark law; (iii) rights under copyright law; (iv) rights in trade secrets and other Confidential Information; and (v) other similar rights to exclude another from the use or enjoyment of an asset or process.
32.9. “Notarization” means an authorized notarial act performed by a Notary according to Applicable Notary Law.
32.10. “Notary” means an individual commissioned as a notary public by a United States state, commonwealth or territory to perform Notarizations and to which Online Notary Center facilitates access to perform Notarizations.
32.11. “Patent Rights” means rights under and to patents, patent applications, divisions, continuations, continuations-in-part, reissues, renewals, extensions, supplementary protection certificates, utility models, and the like of such patents and patent applications, and foreign counterparts and equivalents thereof.
32.12. “Personal Information” means information that meets the following two criteria: the information (i) is protected under applicable law governing the disclosure, transfer or use of information concerning natural persons, including without limitation the Gramm Leach Bliley Act and its implementing regulations; and (ii) identifies the natural person at issue, including (as determined by applicable law) through such person’s name combined with other information such as the person’s telephone number, postal address, biometric record, driver’s license number, social security number or account number.
32.13. “Platform” means (i) the API; (ii) the App; (iii) the onlinenotarycenter.com website; (iv) the Services; and (v) the System, as they each currently exist and as each may be modified by Online Notary Center after the Effective Date.
32.14. “Service Business Day” means, with respect to remote online Notarizations and eSign Services provided on the Platform: (i) for Notaries acting in respect to real estate Transactions, 24 hours a day Monday through Friday, EST, and 7:00 AM to 8:00 PM Saturday EST; and (ii) for all other Transactions not described in (i), Notaries and Services are available on a 24/7 basis. Requested Services involving traditional Notarizations are available during normal business hours, weekday evenings until 8:00 PM local time, and on weekends from 9:00 AM to 6:00 PM local time, subject to advance scheduling.
32.15. “Service Provider” means a service provider to Online Notary Center, or an entity whose products or services Online Notary Center resells.
32.16. “Services” means all services offered or facilitated by Online Notary Center and provided to a Subscriber pursuant to (and to facilitate use of) a Subscription Plan or other written agreement made between Online Notary Center and the Subscriber. As specified in a Subscription Plan, Services may include one or more of the following, along with such other associated Services as are appropriate to deliver the Services set forth in the chosen Plan: (a) Authentication Services, (b) Notarizations, (c) e-signing of Documents, (d) Identity Verification Services, (e) the Verification Portal, (f) for Subscribers initiating Transactions relating to real property, Hybrid Document Signing Services, Closing Concierge Services, and eNote Services, (g) Support Services, and (h) such other Services, administrative functionality and product features as Online Notary Center may offer in a Subscription Plan, or other agreement, or to users on the Platform, from time to time.
32.16.1. For all Services relating to Transactions and which involve Notarizing or e-signing Documents, the Services include the following general process: A Subscriber will create a Transaction by uploading one or more Documents to the Platform and designating Signatories and potentially also Witnesses and Participants. An email or other notice is sent from the Platform to the Signatory attaching a link to the Document(s) to be reviewed and e-signed by the Signatory, along with such other information as is customary to be sent respecting such Transactions on the Platform. The email (or other notice) may contain a link to additional information related to the Transaction, as determined by Online Notary Center in its reasonable judgment. The Signatory accesses and reviews the Documents and e-signs them. If Subscriber has indicated a Notarization is required, then based on the type of Notarization Online Notary Center has been requested to perform, each Signatory and Witness (only if required by law) may be required to successfully verify his or her identity through the Authentication Services, and then connect with a Notary before whom the Signatory e-signs the Documents and for whom the Notary performs all required Notarizations. Additionally, any required Witnesses or Participants may participate, as appropriate, during the session with the Signatory and the Notary.
32.16.2. For Services involving Hybrid Document Signing Services, Subscribers will designate certain Documents to be electronically accessed, reviewed and esigned or Online Notary Centerd on the Platform according to Online Notary Center’s customary Services for such e-signing and Notarization on the Platform; and the Subscriber will designate other Documents to be signed and Online Notary Centerd by a Signatory in ink, on paper, in a session in the physical presence of a Notary.
32.16.3. For all Identity Verification Services which are not associated with a Notarization, Online Notary Center will connect a Signatory to an Identity Verification Designated Agent to gather and review the evidence presented by or with respect to a Signatory relating to the asserted identity of a Signatory. This Service will be performed using methods as specified by law, if applicable; or otherwise in the agreements between Online Notary Center and the parties requesting and using such Identity Verification Services.
32.16.4. After the foregoing Services are completed, an email or other notice is sent to the Signatory (and also where agreed, to a Subscriber) attaching a link to the completed Documents and to the session information and record. As part of the Services, Online Notary Center makes Documents and related information (where applicable) available, via the Verification Portal, to Signatories and Verification Portal Users designated by the Subscriber and/or its Signatories and to others with necessary permissions or the legal right to view such Documents. (Documents and information relating to their signing or Notarization will not be displayed on the Verification Portal if such Documents were signed outside the Platform, in ink, as part of a Hybrid Document Signing).
32.17. “Subscriber Systems” means the IT infrastructure the Subscriber is responsible for obtaining, at its own expense to: (i) deliver Transaction Requests and Transaction Documents to Online Notary Center; (ii) to receive Online Notary Centerd Documents, eSigned Documents, or Identity Verification Documents and related information (where applicable) from Online Notary Center, and (iii) engage in other associated interactions with Online Notary Center and the Platform.
32.19. “Support Services” means the technical and customer support that Online Notary Center provides for the Service according to its standard practices and as more fully specified in a Subscriber’s Subscription Plan.
32.20. “System” means the software, business rules, methods, data, know-how, and technology developed or acquired by Online Notary Center to enable the Services it provides (i) to Visitors, Registered Users, and other users; (ii) to its Notaries; and/or (iii) to users of the Verification Portal.
32.21. “Transaction” means a specific instance of Services requested by a Subscriber and provided by Online Notary Center on the Platform. A Transaction will typically involve a Document or set of Documents.
32.22. “Transaction Request” means (i) a Subscriber’s request to Online Notary Center for Services together with (ii) the Documents and any other items of User Data appropriate to the Transaction, and (iii) requisite information designating and identifying the Signatory or Signatories and any Witnesses/Participants associated with the Transaction or Documents. A Transaction Request includes a Transaction in which the Subscriber permits its Signatories to directly submit applicable Documents and other requisite information to Online Notary Center.
32.23. “User Data” includes all data and information regarding a Registered User which may be provided by a Registered User, a Subscriber, or gathered by Online Notary Center as part of the Transaction. It includes each Subscriber’s, Signatory’s, Witness’s, Participant’s or Other User’s provision of content, including, but not limited to, Personal Information, Confidential Information, payment information, identity information, credentials, biometric information and documentation, notarial or other Transaction information, Documents, and information obtained and data recorded (including the recording made of the audiovideo session between you and a Notary or Identity Verification Designation Agent, if applicable) during a Transaction. User Data may additionally include the metadata associated with a Transaction including a complete history of the Transaction with actions that Registered Users take with regard to a Transaction (e.g. upload a Document, access platform, review, sign, move annotations) as well as, information about those Registered Users or their devices, such as name, email address, IP address, and authentication methods.
32.24. “Verification Portal” means the Service that provides access to Documents and related session information and records, as Online Notary Center may make available.
32.25. “Verification Portal User” means a person or entity that meets the following criteria: (a) is the Subscriber which initiated the subject Transaction or a Signatory of the Documents in the subject Transaction; or (b) has been designated by the Subscriber or its Signatory as having requisite permissions to access the Verification Portal to view Documents and other records of the subject Transaction as displayed on the Verification Portal; or (c) has the requisite access credentials or permissions or is otherwise authorized or permitted by law to view Documents and other records of the subject Transaction as displayed on the Verification Portal.