Notaries On-Demand Supplement

Last Modified Date: October 13, 2020
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This Notary on Demand Supplement  (“NOD Supplement”) applies to you if you are Registered User that is utilizing the Platform to access the NOD Services (i.e. you are relying on Notarize match you with qualified Notaries).  This NOD Supplement is incorporated into and made a part of the of the User Terms of Service (“User TOS”) and provides additional terms for the NOD Services accessed or used by you on the Platform. 

1. General

  1. Capitalized terms not defined here have the same meaning as defined in the User TOS or the Glossary.  

  2. In the event of a conflict between this NOD Supplement and the User TOS, this NOD Supplement supersedes the User TOS with respect to the NOD Services.

 

2. License and acknowledgement

  1. Notarize License to You for Platform. During the Term and subject to payment of the applicable fees, Notarize grants You under Notarize’s Intellectual Property Rights, a nonexclusive, non-sublicenseable, non-transferable subscription license to access and use the Platform in the United States, and to permit Your Signatories and Witnesses/Participants to access and use the Platform, solely for the purposes allowed under this Supplement. You will be limited to cloud-based access to an instance of the Notarize System that resides in object code form on servers controlled by Notarize; (ii) the access will be via a browser approved by Notarize; and (iii) the Platform will in all respects be the current version generally made available by Notarize to its customers. You must: (a) provide for your own access to the Internet and pay any service fees associated with such access, and (b) provide all equipment necessary to make such connection to the Internet.

  2. Acknowledgement Concerning Applicable Notary Law. If you request any Notarizations 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 your geographic location (as applicable)) at the time of the Services, and agree that the Notarization may proceed under and will 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) are accessing the Services from locations outside of that state or commonwealth. Notarize only provides the Services because you acknowledge and agree to the foregoing, and would not provide the Services but for this acknowledgement and agreement.

 

Sections 3-5 only apply to you if you executed a Subscription Plan Order Form.

3. Subscription Plan Order Form Additional Terms and Conditions.   

  1. Fees. 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 you require additional Service add-ons for any given Transaction.  Any applicable Platform Access Fees will be charged to Subscriber at the beginning of each month. You will be charged monthly in arrears for the greater of your monthly billable Transaction Fees (including any Transaction Add-On Fees) incurred (unless otherwise paid for by your customer) or the Monthly Minimum Commitment.  Questions regarding payment can be directed to finance@notarize.com.  If agreed to by Notarize, Transaction Fees may be billed directly to your customer and will be due immediately upon Transaction completion.

  2. General Support for Services. In addition to those support services otherwise provided by Notarize as further set out in the User TOS and related User Documentation, Notarize will provide the following support and maintenance services (collectively, the “Support and Maintenance Services”) for the Services throughout the Term.

    1. Notarize will provide helpdesk technical support via email to allow you to contact Notarize during Service Business Days. 

    2. Notarize will also provide user support during Service Business Days that includes answering general inquiries regarding use of the Services such as non-technical “how-to” questions and other minor technical questions (each, a “User Inquiry”). Notarize will issue Helpdesk Tickets to track User Inquiries and such Helpdesk Tickets will remain open until the User Inquiry has been addressed.

    3. Notarize will assign the appropriate priority to all reported or discovered Errors, and such priority will be reasonably determined by Notarize after consultation with you, provided that all such determinations are consistent with good industry practices. 

    4. Notarize will acknowledge your request for an Error Correction and will respond to and resolve the applicable Error within a commercially reasonable period.   

    5. It is agreed and understood that Notarize’s Workarounds and Error Corrections will interoperate with all components of the Services in use at the time the applicable Workaround or Error Correction is provided. Notarize will be solely responsible for the installation of all Error Corrections.

    6. In the event that Notarize cannot reproduce an Error based on the information provided in an Error report, Notarize may request temporary login access to the Services to identify the Error (the “Temporary Remote Access”) and you will use commercially reasonable efforts to make such Temporary Remote Access available, subject to your reasonable access policies and controls. Notarize will be responsible for all costs associated with Temporary Remote Access.

    7. At no additional charge Notarize will provide updated User Documentation in the form of new revision manuals or changed pages to current manuals (or updated “help screens”) consistent with the original User Documentation supplied and reflecting changes embodied in an Update or Error Correction

    8. Additional Support and Training Terms Applicable to You. We are entitled to charge you, according to our (or our Service Providers’) then-current pricing and other applicable policies, for provision of Support Services required due to (i) problems, errors, or inquiries caused by your acts or omissions, issues with the User Data or your Systems, and (ii) excessive requests for Support Services beyond that available under your current Subscription Plan Order Form. We are also be available to offer reasonable additional support and training under separate, mutually agreeable terms and conditions.

  3. User Documentation.  Before submitting a support request, you will first review all support information available on the Platform and in user documentation (as such may be available). If a support request could have been resolved through reasonable review of such User Documentation, we are not be obligated to provide a response, other than referring you to the User Documentation.

  4. Data Security. Notarize will protect the security of User Data. Notarize has implemented and will maintain and follow appropriate technical, physical and organizational measures in compliance with applicable law intended to protect User Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction. Notarize will, as soon as reasonably practicable, notify you in writing of any material changes made to its security measures governing User Data.

  5. Business Continuity. The Services are designed for high availability and to be resilient in the event of failure. Notarize reviews data recovery procedures at least every six months. Notarize or its vendors will maintain emergency and contingency plans for the facilities in which Notarize information systems that process User Data are located. Notarize’s redundant storage and its procedures for recovering data are designed to reconstruct User Data in its original or last-replicated state from before the time it was lost or destroyed.4. Service Levels.

 

4. Service Levels.

  1. Availability of Notaries. Notarize shall use commercially reasonable effort to make the Provider Notaries available to provide the Services during the Service Business Day. 

  2. Exceptions. Failure to meet service levels is excused to the extent due to any of the following (“Exceptions”):

    1. Your, Your user’s or any of the Signatories’ misuse of the Services or the Platform;

    2. Failures of your, your user’s or any of their Signatories’ internet connectivity;

    3. Internet or other network traffic problems other than problems arising in or from networks controlled by Notarize; 

    4. Your, your user’s or any of their Signatories’ failure to meet any minimum hardware or software requirements set forth in applicable User Documentation; 

    5. Factors outside Notarize’s reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to Notarize’s data centers or networks, including at your or one of your Signatories’ sites or between such site and Notarize’s data center);

    6. Issues resulting from your, your user’s or any of their Signatories’ inadequate bandwidth or resulting from third-party software or services;

    7. Caused by use of the Services after Notarize advised you, your user’s or any of their Signatories to modify its use of the Service, if you, your user’s  or any of their Signatories did not modify its use as advised;

    8. That result from your, your user’s or any of their Signatories’ failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your, your user’s or any of their Signatories’ use of the Services in a manner inconsistent with the features and functionality of the Services (for example, attempts to perform operations that are not supported) or inconsistent with applicable User Documentation in any material respect;

    9. That result from faulty instructions by your, your user’s, or Subscriber’s representatives or service providers; or

    10. Scheduled Downtime as set forth in Section 4.d. (Scheduled Downtime).

  3. Scheduled Downtime. Unless otherwise communicated by Notarize, Notarize may schedule the Services to be down between the hours of 3:00 AM – 6:00 AM Eastern Time, on no more than a weekly basis (“Scheduled Downtime”). 

  4. Emergency Downtime. If Notarize determines it must take the Services offline for emergency purposes in order to meet information security controls (“Emergency Downtime”), Notarize shall use its best efforts to provide you with notification as far in advance as possible. 

 

5. Insurance. Notarize shall maintain insurance with coverage at least equal to what a prudent company would carry under similar circumstances.

 

6. Representations and Warranties.

  1. Your Representations and Warranties. You represent and warrant that (i)you own all right, title and interest in and to (a) the User Data, or that it has otherwise secured rights in the User Data necessary to permit the access, use and processing of such User Data according to this BYON Supplement; (b) your Systems; and (c) other resources according to this BYON Supplement; and, (ii) if applicable, it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under this BYON Supplement.

  2. Notarize Representations and Warranties. Notarize represents and warrants to you (i) that Platform software will be scanned using commercially available virus scanning and removal software according to good industry practice and frequency; and (ii) that it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions necessary to carry out its obligations as a provider of software services under this BYON Supplement.

 

7. Indemnifications.

  1. Indemnification by You. You agree to indemnify, defend and hold harmless Notarize from and against any demand, suit, action or other claim that is related to or arises from its User Data, your Systems, a breach of this BYON Supplement by you or its Authorized Notary, employee, contractor or agent, negligence or more culpable act or omission (including recklessness or willful misconduct by you, your employees, contractors or agents, or any third party on behalf of you), in connection with this BYON Supplement or its failure to comply with applicable law (each a “Subscriber-Related Claim”), and, subject to the damage limitations, to indemnify Notarize for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such Subscriber-Related Claim.

  2. Intellectual Property Indemnification by Notarize. Notarize agrees to defend you against any demand, suit, action or other claim by a third party that the Platform or Services misappropriate or infringe the intellectual property rights of such third party (each a “Notarize-Related IP Claim”), and to indemnify you for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such Notarize-Related IP Claim. Notarize will be entitled, at its option, to (i) modify the Platform or Services to resolve such third party infringement claims, provided such modifications do not materially degrade the features or performance of such Services; (ii) obtain for you a license to continue using the infringing Services; or (iii) terminate all of your licenses to use the Services. If Notarize is unable at reasonable effort or expense to implement (i) and (ii) above, and therefore implements (iii), then you will 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 Order Form or other Agreement.  The foregoing states the entire liability of Notarize, and your exclusive remedy, with respect to actual or alleged violation of third party intellectual property rights by the Platform or other performance by or deliverable from Notarize under this BYON Supplement or any other agreement between you and Notarize.

  3. 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 will not be responsible for any settlement it does not approve in writing.

 

8. Non-Acceptance or Invalid Notarization. Except as otherwise provided in the User TOS or other written agreement, 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 Notarize is deemed defective, invalid or ineffective in any way; then Notarize will refund all fees, if any, you have directly and personally paid to Notarize for the Service in question (a “Full Refund”). The payment by Notarize of a full refund shall be your sole and exclusive remedy arising out of or relating to non-acceptance 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 notarized via audio- video communication under Applicable Notary Law, and that the e-signed or Notarized 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.

 

9. Limitation on Remedies.

  1. Consequential Damages Waiver. In no event will 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.

  2. General Limitation of Liability.  In no event will the liability of a party, in the aggregate respecting any and all claims arising out of or relating to this NOD Supplement, exceed the lesser of (a) the total amount of payments, for the immediately preceding 12 (twelve) month period, paid or due to Notarize under this NOD Supplement or any other agreement between the parties, or (b) the actual monetary damages suffered by the injured party. These limitations are independent of all other provisions of this NOD Supplement and will apply notwithstanding the failure of any remedy provided herein.

 

10. Survival Provisions. The following will survive the termination or expiration of this Supplement for whatever reason or cause: Sections 7a, 7c, 8, 9 and 10 of this NOD Supplement and any other that may be reasonably interpreted as surviving termination or expiration of this Supplement will survive the termination or expiration of this Supplement.



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