Sertifi’s Terms of Service

Version 08.27.2020

These Terms of Services (“Terms of Services”) constitute a binding contract and legal agreement between your company (“Customer”) and Sertifi, Inc. (“Sertifi”) governing the use of the Services (as defined in Section 1 below).  The terms Sertifi and Customer include each of their respective directors, officers, shareholders, members, managers, partners, employees, independent contractors, advisors, consultants, successors, assigns, subsidiaries and affiliates.  Sertifi and Customer may be referred to singularly as “Party,” or collectively as “Parties.”

 

  1. Sertifi Services. Sertifi is a software, technology and services provider operating an internet based agreement platform  which allows (a) the Customers to securely and electronically create,  send, and present to its third-party end users or other users (collectively the “Users”) requests for digital authorizations, forms, electronic signatures, payment authorizations, and payment verifications, and (b) allows Users to securely and electronically retrieve, sign documents and facilitate secure transactions through a payment gateway or payment processor to make and process payments to the Customer (collectively the “Services”).  Customers and Users of the Services create, exchange and utilize certain electronic data and information that is maintained in the Services (collectively the “Data”).

 

  1. Sertifi Responsibilities. Sertifi shall use commercially reasonable and good-faith efforts to provide the Services in accordance and compliance with: (a) the Terms of Services; (b) the use and protection of the electronic signatures under the Electronic Signatures in Global and National Commerce Act (“ESIGN”), the Uniform Electronic Transactions Act (“UETA”), EU Regulation 910/2014 on Electronic Identification, Authentication and Trust Services (“EIDAS”), or such other applicable laws or regulations; (c) the objectives of the Interagency Guidelines Establishing Standards for Safeguarding Company Information as set forth in Section 501(b) of the Gramm-Leach-Bliley Act (“Gramm-Leach-Bliley”); (d) security, privacy, controls, data processing and information obligations under Article 28 of the EU General Data Protection Regulation (“GDPR”) or such other applicable laws or regulations, including Sertifi’s role and obligations as the “Data Processor” of Customers and User information; (e) the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks; (f) the California Consumer Privacy Act (“CCPA”), (g) the payment card industry requirements or standards, including the Payment Card Industry Data Security Standard (“PCIDSS”); (h) the Health Insurance Portability and Accountability Act (“HIPPA”); (i) the AT 101 Service Organization Control (“SOC”) 2 Type 2 Audit Standards; (j) the International Organization of Standardization (“ISO”) standards; (k) applicable privacy laws and regulations; (l) preserving the security, integrity, and confidentiality of Data and to protect against unauthorized access and anticipated threats or hazards thereto; (m) the backup/disaster recovery plan, and (n) such other requirements, which from time to time, may be required by law and/or become industry standards.

 

  1. Order Form(s). The Order Form(s) executed by Sertifi and Customer are merged and incorporated into the Terms of Services which together constitute one legal, valid and binding agreement.  The capitalized and defined terms in the Order Form(s) shall have the same meaning as in the Terms of Services.  In the event there is any conflict or inconsistency between the terms of the Order Form(s) and the Terms of Services, the Order Form(s) shall prevail, supersede and govern over the terms of the Terms of Services.  The Order Form shall provide (a) the date upon which the Customer may begin using the Services (the “Effective Date”), Customer’s fees and payment terms for use of the Services (the “Fees”), and (c) the term of Customer’s use of the Services (the “Term”).

 

  1. Terms of Services Updates. The Terms of Services incorporate and include (a) the Privacy Policy, currently posted at https://corp.sertifi.com/privacy-policy/ (“Privacy Policy”) and the Acceptable Use Policy, currently posted at https://corp.sertifi.com/sertifi_acceptable_use_policy/ (“Acceptable Use Policy).  Sertifi may, from time to time, in its sole and absolute discretion,  relocate, update, and modify the Terms of Services, currently posted at https://corp.sertifi.com/sertifi-terms-of-service/, the Privacy Policy, and the Acceptable Use Policy.  The Terms of Services, Privacy Policy, and Acceptable Use policy will indicate the date posted, and the use of the Services by Customer after such posting will bind Customer thereto.  Customer shall review the Sertifi website for updates and modifications to the Terms of Services, Privacy Policy, and Acceptable Use Policy on a regular and periodic basis.  Sertifi may require Customer to take action to accept and acknowledge any update.  In the event there is any conflict or inconsistency between the current or any future Terms of Services, Privacy Policy, or Acceptable Use Policy, the most recently posted version shall prevail, supersede and govern over any previous versions.

 

  1. Grant of License to Use the Services. Sertifi grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services on behalf of the Customer and its Users, during the Term, strictly subject to the Terms of Services and the Order Form.  The Services include all additions, modifications, enhancements or updates to the Services that are made available to users of the Services on a system-wide basis.  No license or other rights which are not expressly granted in the Terms of Services are intended to or will be granted or conferred to Customer, Users, or to any third party, by implication, statute, inducement, estoppel or otherwise.  Customer shall not, nor shall it allow any of its Users to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, infringe upon, commercially exploit, or otherwise make the Services available to any third party, other than to the Users or as otherwise contemplated by the Terms of Services; (b) modify, copy, create any derivative works based upon, reverse engineer, decompile, dissemble, misappropriate, sniff, access in order to build any competitive or commercially available product or service, or otherwise derive the source code, object code or any other intellectual property constituting or relating to the Intellectual Property (as described below in Section 6); (c) send or store infringing, obscene, pornographic, lewd, lascivious, violent, threatening, libelous or otherwise unlawful or tortious material, including material that violates third-party privacy rights; (d) send or store malicious or harmful code and/or software, including viruses, worms, trojans, software that bypasses normal authentication mechanisms, exploits or attacks software security, or any software or data designed to disable, modify or damage the Services; (e) send or store deceptive, forged, or unsolicited messages, emails, or spam; (f) interfere with or disrupt the integrity or performance of the Services or the Data; (g) gain unauthorized access to the Services or the Data; (h) use in violation of any applicable laws or regulation; (i) use in violation of the Terms of Services or the Order Form(s); or (j) use, except for the express purpose and intent of the Terms of Services; the Services, Intellectual Property, any other service or offering of Sertifi, and/or any features, functions, integrations, interfaces or graphics therein.  Customer and Users use of the Services is conditioned upon Customer’s (i) acceptance of the Terms of Services; (ii) compliance with the all reasonable industry standards, precautions, procedures and notices adopted by Sertifi; and (iii) compliance with all federal, state and local applicable laws, regulations and rules.

 

  1. The Services and Intellectual Property is Owned by Sertifi. Sertifi retains the sole and exclusive ownership of all rights, title and interests in the Services, any other service or offering of Sertifi, and any Intellectual Property (as defined below) therein.  The term “Intellectual Property” includes proprietary and intellectual property rights, title, and interest, arising under any federal, state, foreign or common law, or associated regulations, whether registered or unregistered, that may be obtained for, or may pertain to, the Services, any other service or offering on the Sertifi agreement platform, which includes, without limitation: (a) all patent registrations and applications; (b) all copyrights, mask works, other works of authorship, literary property or author’s rights, whether or not protected by copyright or as a mask work; (c) all trademarks or service mark registrations or applications, trade names, trade dress, symbols, proprietary indicia, logos and/or brand names; (d) all software, source code, object code, applications, application programing integrations (“APIs”), applets, extensible markup language, text, graphics, images, icons, and user interfaces; (f) all data, information, data rights, Data and privacy rights; (g) all trade secrets (including ideas, research and development, know-how, formulas, compositions, processes and techniques, technical data, designs, drawings, specifications); (h) all confidential information; (i) any other proprietary rights; (j) all copies and tangible embodiments thereof, in any and all forms and mediums now known or hereinafter created; and (k) all additions, modifications, enhancements, upgrades, updates, changes and derivative works thereof.   If the Services provided to Customer are enjoined or interfered with as a result of any claims, suits or actions for intellectual property infringement against Sertifi, then Sertifi shall, at its sole and absolute discretion, in lieu of any other obligations provided in the Terms of Services, pay for and provide resolution services limited to the following: (i) obtain for Customer the right to continue receiving and using such Services free of any claims, suits or actions of infringement, misappropriation or violation;  or (ii) modify and/or replace the Services so that they no longer infringe, misappropriate or violate, provided that such modifications do not adversely affect Customer’s use of the Services.

 

  1. Customer Controls Access and Use of Services by Users. Customer retains the sole  responsibility and liability to (a) identify its potential Users of the Services, (b) to grant access to and authorize Users to utilize the Services,  (c) determine the risks, terms and trustworthiness of the Users with whom the Customer is transacting while using the Services, (d) govern the use of the Users‘ utilization of the Services, and (e) for all actions and omissions of its designated Users in connection with the use of the Services.  Customer reserves the right to discontinue, suspend, or terminate (either temporarily or permanently) the use of the Service by any Users, for any reason or no reason, in the sole and absolute discretion of Customer.

 

  1. Services Credentials. Sertifi shall assign the Customer a confidential key, user identification, authorization and password for use with the Services (the “Credentials”).  Customer is responsible for maintaining the confidentiality and security of the Credentials issued to it and its Users, and shall be liable and responsible for all actions, omissions, failures to act, or transactions conducted with the Credentials issued to Customer or any of its Users.  Sharing or lending of the Credentials is strictly prohibited.  Customer will immediately notify Sertifi in writing of any unauthorized use of Credentials issued to access and use the Services or if the Credentials are otherwise lost or stolen.    For instances where the Customer is utilizing APIs for the Services, the Credentials must be stored on a secure server with controlled access, firewall and intrusion detection, network monitoring and other reasonable requirements as may be communicated to Customer by Sertifi, in writing, from time to time.  For distributed applications, the Credentials must be concealed or encrypted to prevent unauthorized access and/or use.  Customer hereby agrees to communicate with the Services using the Credentials through a Secure Sockets Layer (“SSL”) or other Sertifi approved protocol.  Sertifi may change the Credentials from time to time.  Modifications of the Credentials requirements may affect access and may require Customer to make changes, at its own cost, to continue to be compatible with or interface with the Services.

 

  1. Discontinuation or Suspension of the Use of the Services. Sertifi reserves the right to temporarily discontinue or suspend this license of the Services to Customer and any of its Users, if Sertifi reasonably determines that Customer or any Users are in violation of the Terms of Services.  Within five (5) calendar days of such temporary discontinuation or suspension, Sertifi will provide Customer with a written notice of the violation of the Terms of Services, and Customer shall then have ten (10) calendar days to cure any such violation of the Terms of Services, before any use the Services is restored.  If the violation of the Terms of Services by Customer or Users is not cured within the ten calendar (10) days, then Sertifi may terminate Customer’s or User’s use of the Services.  All final determinations of Customer’s or User’s violation or compliance with the Terms of Services shall be in Sertifi’s sole and absolute discretion.  Sertifi may delete from its Services any and all information or Data that result from any unauthorized or illegal use of the Services.

 

  1. Electronic Signatures. The Services provide Customer with ESIGN and UETA compliant solutions that enable Customer and its Users to send and sign documents securely with the same legal equivalency of a handwritten signature; however, certain types of documents are excluded from electronic signature laws and regulations, and certain laws and regulations may have specific or additional requirements that apply to electronic signatures and electronic records.  The Services allow Customer to monitor the industry standard hashing of signed documents and the Services makes those hash values available to Customers to validate the integrity of documents signed and stored through the Services; however, Sertifi does not guaranty nor warrant the integrity or contents of documents on the Services, nor any documents downloaded, saved, stored locally or forwarded from the Services by Customers or Users.  The Services allow Customer to monitor information on the Users’ use of the Services (such as, User’s email address, captured IP address of Users, or other Data); however, Sertifi does not guaranty or warrant the identity of Users approved by Customer.  Customer acknowledges that the Services rely on e-mail notifications to alert Customer and Users of signature requests and other information, and that Sertifi is not responsible for any Customer’s or User’s failure to receive or send e-mails.  Customer has the sole obligation to (a) determine the enforceability of any particular document signed with an electronic signature, (b) determine the risks as to the identity of the Users signing with the use of electronic signature, (c) to provide each User with any disclosure or explanation required by law concerning the utilization of electronic signatures and the use of the Services, (d) to provide paper copies of documents if requested, and (e) to draft its documents to accommodate enforcement of the terms of the documents when signed with electronic signatures.  Sertifi does not make any representation or warranty as to (i) the enforceability of any document signed with an electronic signature or facsimile signature, (ii) the coverage of any document under ESIGN, UETA or any such other applicable law or regulation, (iii) the suitability of its Services to provide the documents or transactions that pass through its Services, or (iv) enforceability of documents or transactions that pass through its Services.

 

  1. Payment Authorizations.   In circumstances where the Customer is utilizing the payment authorization portion of the Services,  then pursuant to the direction provided by Customer and/or Users, Sertifi is authorized to use Customer’s and/or User’s payment/merchant account information and credentials for purposes of (a) obtaining payment authorization from Users to Customer, (b) obtaining payment charges from Users to Customer, or (c) providing refunds or credits from Customer to Users.

 

  1. Data Confidentiality and Breach. Sertifi shall comply with reasonable industry standards precautions to not disclose Data to any third-parties except: (a) as convenient or necessary to operate the Services for the Customers and Users; (b) as convenient or necessary for Sertifi’s internal record keeping, internal reporting and support purposes; (c) to third parties bound by a confidentiality agreement to view Data; (d) as required by law, court order, subpoena, judicial or governmental administrative request or order, or to prosecute; or (e) to defend the rights of Sertifi in a legal proceeding.  Customer acknowledges and agrees that the Data may include confidential and personal information of Customer and Users, that such Data will require a special degree of care and adequate security measures, and that Customer shall not disclose any Data, confidential information, or personal information to any third-parties, except as necessary to utilize the Services for the intended use and purpose of the transmission of the Data between the Customer and Users.  Where applicable, Customer as a “Data Controller” under GDPR will have responsibilities to implement any available enhancements as well as any necessary policy, procedures or notices.  If there is a suspected or actual breach of security involving, or unauthorized disclosure or use of or access to, or other loss or misappropriation of, any Data (a “Data Breach”), Sertifi will notify Customer within forty-eight (48) hours of becoming aware of such Data Breach, fully cooperate with Customer in investigating the Data Breach, and shall provide any mitigation or remediation required under applicable law.

 

  1. Data Storage. Sertifi provides Customer the limited ability through user-defined settings and controls to determine the length of time Data will be retained on the Services, and the ability to extend the length of time Data can remain on the Services for additional Fees paid by Customer.  By default, without customization or purchase of additional storage as set forth in the proceeding sentence, as long as Customer pays for and has not terminated the Services, the Services shall retain (a) the document for a period of 12 months after a document is uploaded and signed, and (b) all audit trail information (meaning information such as the email address of the Customer or User, captured IP address of Customer or User, the hash value of any document, or a payment token) shall be available during the Term.   At the end of the period as provided in the proceeding sentence, the documents, audit trail information or other Data will be deleted by the Services.  Customer may download its transaction documents, audit trail information or other Data at any time before it is deleted from the Services.  Customer is responsible to download and make copies of all Data that it wants to maintain.  Payment card information is not retained by the Services, but instead is tokenized and the token is stored on the Services.

 

  1. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  SERTIFI SPECIFICALLY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, AND ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

  1. Limitation of Liability.

15.1      Limitation and Exclusion of Indirect Damages.  IN NO EVENT SHALL SERTIFI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST INCOME, LOST PROFITS, COST OF COVER, OR LOSS OF USE) OF ANY KIND, WHETHER PAST, PRESENT OR FUTURE, 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 ANY OTHER BASIS, ARISING OUT OF THE PROVISION OR USE OF THE SERVICES BY CUSTOMER OR USERS.  TO THE EXTENT A COURT OF COMPETENT JURISDICTION FINDS THE TERMS OF THIS SECTION OVERLY BROAD, UNENFORCEABLE, OR OTHERWISE IMPOSES LIABILITY UPON SERTIFI IN FAVOR OF CUSTOMER, THEN SERTIFI’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

15.2      Limitation of Actual Damages.  THE LIABILITY OF SERTIFI ARISING OUT OF OR RELATED TO THE TERMS OF SERVICES, THE SERVICES, OR ANY TRANSACTION OR SERVICE, WHETHER PAST, PRESENT OR FUTURE, 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 ANY OTHER BASIS SHALL BE LIMITED TO DIRECT AND ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, AND THE AGGREGATE LIABILITY OF SERTIFI FOR SUCH ACTUAL DAMAGES SHALL NOT EXCEED, UNDER ANY CIRCUMSTANCES, THE FEES PAID BY CUSTOMER TO SERTIFI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISING TO THE CLAIM.  TO THE EXTENT A COURT OF COMPETENT JURISDICTION FINDS THE TERMS OF THIS SECTION OVERLY BROAD, UNENFORCEABLE, OR OTHERWISE IMPOSES LIABILITY UPON SERTIFI IN FAVOR OF CUSTOMER, THEN SERTIFI’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  MULTIPLE CLAIMS SHALL NOT EXPAND THESE LIMITATIONS.

 

  1. Indemnification.

16.1      Indemnification of Sertifi.  Customer shall indemnify, defend and hold harmless Sertifi from and against all expenses, damages, claims, suits, actions, judgments, liabilities and costs, including reasonable attorneys’ fees and costs (collectively “Claims”), whether or not litigation is actually commenced, arising out of, or in any way connected with any third-party Claims related to the Customer or its Users use of Services or the Data.  In connection with Sertifi seeking indemnification for any Claims under this Section 16.1: (a) Sertifi shall give Customer prompt written notice of any Claims; (b) Customer, at its sole cost and expense, shall pay for counsel and legal services in defense of the any Claims through counsel of Sertifi’s own choosing; (c) Sertifi shall provide assistance and cooperate with the Customer in connection with the defense and settlement of any Claims; and (d) Customers, at its sole cost and expense, shall pay for the settlement of any Claims; provided, however, that the Customer may not settle any Claims that materially adversely impact Sertifi’s rights or obligations, without the Sertifi’s prior written consent, which shall not be unreasonably withheld or delayed.

16.2      Indemnification of Customer.  Sertifi shall indemnify, defend and hold harmless Customer from and against all Claims, whether or not litigation is actually commenced, arising out of, or in any way connected with any Claims that Sertifi has misappropriated, infringed, or violated any third-party intellectual property rights in providing the Customer or its Users use of Services.  In connection with Customer seeking indemnification for any Claims under this Section 16.2, Customer shall: (a) give Sertifi prompt written notice of any Claims; (b) allow Sertifi to provide counsel and legal services for Customer related to the Claims at Sertifi’s sole expense; (c) provide assistance and cooperate with the Sertifi in connection with the defense and settlement of any Claims; and (d) permit Sertifi to control the defense and settlement of any Claims; provided, however, that the Sertifi may not settle any Claims that materially adversely impact Customer’s rights or obligations, without the Customer’s prior written consent, which shall not be unreasonably withheld or delayed.  Further, Customer, at its cost and expense, may participate in the defense of the any Claims through counsel of its own choosing.  Customer’s right to indemnification under this Section 16.2 is limited under the limitation of liability provisions of Section 15 of the Terms of Services.

 

  1. Assignment. Neither the Terms of Services nor the right to access and use the Services may be assigned by either Party without the prior written consent of the other Party, except that either Party may assign or otherwise transfer this agreement, to any acquirer of, or successor in interest, whether by merger, consolidation, sale of all or substantially all of the assets or equity, or by operation of law.  The Terms of Services shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.  Any assignment in contravention of the Terms of Services shall be null, void and of no further effect.

 

  1. Entire Agreement. The Terms of Services (including the Order Form(s)) constitute the entire agreement between the Parties regarding the subject matter of the Terms of Services and supersedes all prior agreements, understandings, representations, and warranties, whether oral or written.  Except as otherwise permitted in the Terms of Services, the Terms of Services may not be altered, changed or modified, except by the written agreement of Parties.  The Terms of Services are solely between the Parties hereto, may be enforced only by the Parties hereto, and will not be deemed to create any rights in third-parties, including but not limited to, or to create any obligations of either Party to any such third-party.

 

  1. Effect of Partial Invalidity. If one or more provisions of the Terms of Services are held to be invalid or unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each Party as closely as possible to that under the provision rendered unenforceable.  If the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then such provision shall be excluded from the Terms of Services and will be ineffective only to the extent of such invalidity or unenforceability. The invalidity of any portion of the Terms of Services will not, and shall not, be deemed to affect the validity of any other provision; and the Parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both Parties subsequent to the expungement of the invalid provision.

 

  1. Interpretation of Terms of Services. The language used in the Terms of Services will be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of law or contract interpretation which provides that in the case of ambiguity or uncertainty of a provision should be construed against the draftsman will be applied against any party thereto. The language of the Terms of Services shall be interpreted simply according to the terms herein and its fair meaning.  The headings and titles in the Terms of Services are solely for the convenience of the Parties and shall not be used to explain, modify, simplify or aid in the interpretation of the provisions of the Terms of Services.

 

  1. Arbitration. Except for any claim of unpaid Fees, or for claims of injunctive relief, Customer agrees that any controversies, disputes or claims (a) arising out of the Services or Terms of Services, (b) in connection with Services or Terms of Services, (c) in relation to the interpretation of the Terms of Services, (d) regarding the performance of the Services, or (e) regarding the breach of the Terms of Services, shall be submitted to binding arbitration in accordance with the rules then in effect of the American Arbitration  Association (“AAA”), or, if applicable, the International Center for Dispute Resolution (“ICDR-AAA”), by a single arbitrator having experience in software as a service licensing agreements.  The arbitration shall take place in Chicago, Illinois.  All awards rendered by the arbitrator shall (i) be limited by all limitations of liabilities and other provisions contained in the Terms of Services, (ii) be binding and final upon the Parties, (iii) and judgment upon the award may be entered in any court of competent jurisdiction. The ability of the Parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings.  The arbitrator shall be requested to issue a reasoned award.  THE CUSTOMER AGREES TO BINDING ARBITRATION GOVERNING DISPUTES RELATED TO THE USE OF THE SERVICES, LIMITING CUSTOMER’S LEGAL RIGHTS, INCLUDING THE RIGHT TO FILE A LAWSUIT IN A COURT OF LAW.

 

  1. Governing Law. The interpretation and construction of the Terms of Services, and all matters relating hereto (including, without limitation, the validity or enforcement of the Terms of Services), shall be governed by the laws of the State of Illinois without regard to any conflicts or choice of law provisions of the State of Illinois that would result in the application of the law of any other jurisdiction.  Each Party hereby irrevocably (a) submits to the exclusive jurisdiction of the United States District Court for the Northern District of Illinois or any court of the State of Illinois located in Cook County in any action, suit or proceeding arising out of or relating to the Terms of Services, (b) consents to service of process by any means authorized by the applicable law of the forum in any action brought under or arising out of the Terms of Services, (c) waives, to the fullest extent permitted by law, any objection that it may now or hereafter have at any time to the venue of any such action, suit or proceeding brought in such courts, and (d) waives, to the fullest extent permitted by law, any claim that any such action, suit or proceeding brought in such courts has been brought in an inconvenient forum, or that such courts do not have jurisdiction over the Parties.

 

  1. Remedies. Except as otherwise provided herein, in the event there is a breach of the Terms of Services, the breaching Party shall be responsible for reasonable attorney’s fees and costs incurred by the non-breaching Party as a result of any enforcement of the Terms of Services or resulting breach.  Unless otherwise expressly set forth in the Terms of Services, all remedies available to either Party for breach of this Terms of Services are cumulative and may be exercised concurrently or separately, are in addition to any other rights and remedies provided by law, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of other remedies.  THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE TERMS OF SERVICE.

 

  1. Relationship of the Parties. Terms of Services shall neither be construed as creating a relationship of principal and agent between the Parties to the Terms of Services, nor creating a partnership, joint venture or association of any kind between the Parties.  It is the purpose and intent hereof to create only a contractual relationship between the Parties.

 

  1. No Waiver. No waiver of any term or breach of the Terms of Services shall be considered valid unless it is in writing and signed by the Party giving such waiver; and no such waiver shall be deemed a waiver of any other term or subsequent breach.  The failure or delay of any party to the Terms of Services to insist upon the performance of any of the terms or breach of the Terms of Services shall not be construed as thereafter waiving any such term or breach, and the terms of the Terms of Services shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

 

  1. Notifications.

26.1      Services Notifications.  All (a) communications, agreements, notifications, acknowledgements, consents, “click-throughs,” or other approvals to Customer or Users while utilizing or in the delivery of the Services to Customer and Users; or (b) to Customer about the Services, updates to the Services,  updates to the Terms of Services, about the Fees, or any incurring of any additional Fees; will be made via electronic means, including but not limited to, e-mail, text, web page notifications, in-app notifications, posting on the Sertifi website, or through the Services (collectively “Services Notifications”).  Customer acknowledges and agrees that any such Service Notification shall satisfy any legal requirement that the Services Notification be in writing or delivered in a particular manner.  Customer agrees to keep it account contact information current so that Customer may receive any Service Notifications.

26.2      Legal Notifications.    Any written legal notice required or permitted to be delivered pursuant to the Terms of Services shall be in writing, in the English language, and shall be deemed delivered:  (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the U.S. mail, registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with a national overnight courier;  (d) if to Sertifi, via email at [email protected] with the subject line including “Attention: Legal Department”, upon delivery; and (e) if to Customer, via the email address provided by Customer to Sertifi, upon delivery.  Notice to Customer shall be at the address provided to Sertifi by Customer in the Order Forms(s), unless Customer has provided Sertifi with an updated address or email.  Notice to Sertifi shall be at 222 W. Merchandise Mart Plaza, Suite 1270, Chicago, IL, 60654.

 

Survival.

    1.  Sections 3-6, 12-27, and any other provision of the Terms of Services which contemplates performance or observance subsequent to termination of or expiration of the Terms of Services shall survive the