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DOCMAGIC® TERMS OF USE

 

Thank you for using our technology platforms which include our websites (such as, www.docmagic.com), APIs, desktop and mobile applications (the "Platforms").  The Platforms are controlled and operated by DocMagic, Inc., a California corporation ("DM").  For purposes of these Terms of Use (these "Terms"), "you" or "your" means the individual who is accessing or using the Platforms, and its or their agents and permitted successors and assigns. Each of you and DM may be referred to herein as a "party," and collectively, as the "parties.

 

PLEASE READ THESE TERMS CAREFULLY!  BY CLICKING “I AGREE,” YOU AGREE THESE TERMS WILL APPLY TO YOUR USE OF OUR PLATFORMS.  IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR PLATFORMS.  YOUR USE OF OUR PLATFORMS WILL BE SUBJECT AT ALL TIMES TO THESE TERMS AND ALL APPLICABLE LAWS, RULES AND REGULATIONS.  IF, AT ANY TIME, YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY CEASE ALL USE OF OUR PLATFORMS.

 

INTRODUCTION

These Terms are a legally binding agreement between you and DM.  These Terms apply to your access to and use of any of our Platforms, together with any related documentation, content, features, functions and solutions offered on or through our Platforms, or through email transmissions to you from DM (collectively "Materials").  Materials will also include to any of the foregoing items. 

 

LICENSE AND ACCESS

Subject to the terms and conditions of these Terms, and payment by you of all fees (if any) owed to DM for in connection with your use of the Platforms and Materials, DM hereby grants to you, and you hereby accept from DM, a limited, nonexclusive, nontransferable license (without a right of sublicense), to access and use the following, solely for your personal use, the Platforms and the Materials, as well as any new versions, modifications and enhancements as the same are made available to you by DM from time to time.

 

OTHER GOVERNING DOCUMENTS

In addition to these Terms, your use of the Platforms is governed by, and you agree to be bound by, DM’s Privacy Policy posted at https://www.docmagic.com/privacy-policy.  If you do not agree with these Terms or with the Privacy Policy, do not use any of the Platforms.  For changes to these Terms, please refer to "MODIFICATION AND TERMINATION."  For changes to the Privacy Policy, please refer to that policy. 

 

UNLAWFUL OR PROHIBITED ACTIVITIES

Your use of the Platforms and Materials is conditioned upon your compliance with the following rules of conduct.

By clicking "I agree," you are representing, warranting and covenanting that you will not take, directly or indirectly, any of the following actions:

 

•      Use any of the Platforms or Materials for any fraudulent or unlawful purpose.

 

•      Except as allowed by applicable laws, rules and regulations ("Applicable Law"), send unsolicited commercial email to the email addresses provided on or through the Platforms. The posting of email addresses is not to be construed as, and does not constitute consent to use of them by any seller of services, any compiler of mailing lists, or any other non-authorized use without prior permission from DM. In addition, spam, chain emails, advertising solicitations and similar email solicitations are expressly prohibited.

 

•      Impersonate any person or entity, including, but not limited to, DM or any of its employees, contractors or agents (each, a "DM Party");

 

•      Forge any TCP/IP packet header or any part of the header information in any email.

 

•      Falsely state or otherwise misrepresent your identity or your affiliation with any person or entity, or express or imply that DM endorses any statement you make.

 

•      Transmit to or from the Platforms any unlawful, threatening, libelous, defamatory, obscene, inflammatory or pornographic material or other material that could give rise to any civil or criminal liability under Applicable Law.

 

•      Attempt to probe, scan or test the vulnerability of the Platforms or any DM system or network, or to breach security or authentication measures without proper authorization.

 

•      Restrict or inhibit any other person from using the Platforms or any Materials, including by means of hacking or defacing any portion of the Platforms.

 

•      Interfere or attempt to interfere with the proper functioning of the Platforms, including, without limitation, through the use of harmful devices or software code (e.g. time bombs, logic bombs, viruses/worms, back doors, trap doors, undocumented passwords, trojan horses), overloading, “flooding”, “mailbombing” or “crashing” (collectively, "Harmful Code").

 

•      Interfere with or violate any other Platform user's right to privacy or other rights, or harvest or collect personally identifiable information about Platform users, or about DM or any DM Party identified on the Platforms, without their express consent.

 

•      Sell, resell, transfer, license, or exploit for any commercial purposes any portion of the Platforms or Materials.

 

•      Modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Platforms or Materials.

 

•      Frame or mirror all or any part of the Platforms or Materials without DM’s prior express written authorization.

 

•      Copy, distribute, transmit, display, perform or create derivative works of the Platforms or Materials, including without limitation, allowing access to your account, your account number, user identification and password.

 

YOUR REPRESENTATIONS

You represent and warrant that (i) you have the power, capacity and authority to enter into these Terms and bind any entity on whose behalf (or for whose benefit) you are accessing the Platforms and Materials; (ii) you will use the Platforms and Materials in compliance with these Terms and all Applicable Laws; and (iii) you will not, directly or indirectly, transmit or upload any Harmful Code.

 

LIMITED WARRANTY

DM represents that it will use commercially reasonable efforts to make the Platforms available for your use.  The preceding limited warranty is the sole warranty provided with respect to the Platforms and any Materials.  Your sole remedy in the event of any non-conformance is to stop using the Platforms and Materials.

 

EXCLUDED EVENTS

Notwithstanding any other provisions of these Terms, DM shall have no obligations or liabilities resulting (in whole or in part) from or with respect to: (a) any use of the Platforms other than in accordance with the documentation and these Terms; (b) any use, operation or combination of the Platforms or Materials with any other product, service or content; (c) any failure to promptly implement any update to the Platforms or properly maintain the infrastructure required to operate the Platforms; (d) any data and other information entered by or on behalf of you or otherwise provided to DM (whether directly or indirectly); or (e) any breach of these Terms or any negligent act or omission by you.

 

DISCLAIMER

EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE PLATFORMS AND MATERIALS ARE PROVIDED "AS IS", “WHERE IS," "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND, AND DM HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, DM DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PLATFORMS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE MATERIALS WILL BE FREE OF HARMFUL CODE; NOR DOES DM OR ANY OF THE DM PARTIES MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF ANY PLATFORMS OR ANY MATERIALS.

 

THE PLATFORMS ARE PROVIDED VIA THE INTERNET AND YOU ACKNOWLEDGE AND AGREE THAT NEITHER DM NOR ANY OF THE DM PARTIES OPERATES OR CONTROLS THE INTERNET.  AS SUCH, THE PLATFORMS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  NEITHER DM NOR ANY DM PARTY SHALL BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

WITHOUT LIMITING THE FOREGOING, DM DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY THIRD PARTY LICENSORS AND/OR SERVICE PROVIDERS ("TPPS") OR ANY OF THEIR SERVICES. YOU SHOULD SEEK APPROPRIATE LEGAL ADVICE BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION BASED ON INFORMATION AND MATERIALS PROVIDED VIA THE PLATFORMS. NOTHING ON THE PLATFORMS OR IN ANY MATERIALS SHOULD BE CONSTRUED AS LEGAL ADVICE. IN NO EVENT SHALL DM BE LIABLE FOR LOSSES ARISING FROM ANY USE OF OR RELIANCE ON INFORMATION ON THE PLATFORMS OR IN THE MATERIALS OR ANY DELAYS IN THE PROVISION OF INFORMATION OR ANY ACTION TAKEN (OR NOT TAKEN) AS A RESULT OF USING THE PLATFORMS AND MATERIALS. TO THE EXTENT THAT THESE EXCLUSIONS ARE EXPRESSLY PROHIBITED BY APPLICABLE LAW IN YOUR STATE, THOSE PARTS OF THE CLAUSES THAT ARE PROHIBITED WILL NOT APPLY. THE REMAINING TERMS AND CLAUSES WILL CONTINUE TO APPLY.

 

PROPERTY OWNERSHIP

You acknowledge and agree that the Platforms and all Materials, together with all DM Confidential Information (as defined below), constitute the sole and exclusive property of DM (and/or its third party licensors as applicable), together with all modifications, updates, upgrades, enhancements and customizations to and compilations and derivative works of such items, and any intellectual property rights related to or embodied in any of them.  You acknowledge and agree that you have no right in or license to any of the foregoing except for the limited rights expressly granted in these Terms.

 

TRADE NAMES, TRADEMARKS AND SERVICE MARKS

Trade names, trademarks, and service marks of DM include, without limitation DOCMAGIC®, DOC MAGIC®, DOCMAGICXL®, DOCMAGIC E SIGN®, the DOCMAGIC E SIGN logo®, CLICKSIGN®, DOCMAIL®, , the top hat logo ®LOANMAGIC®, CLICKSIGN®, DOCMAIL®, FREESIGN®, and SMARTCLOSE®, SMARTREGISTRY™. All trade names, trademarks and service marks on the Platforms or the Materials that are not owned by DM or DM Parties are the property of their respective owners. The trade names, trademarks, and service marks owned by DM or DM Parties, whether registered or unregistered, may not be used by you in connection with any product or service, or in any manner that is likely to cause confusion or dilution.  Nothing in the Platforms or any Materials should be construed as granting, by implication, estoppel, or otherwise, any right or license to use any of DM's (or any DM Parties’) trade names, trademarks, or service marks.

 

DIGITAL MILLENIUM COPYRIGHT ACT NOTICE

Except for the limited license provided above, nothing in these Terms shall be construed as conferring any license or right under any copyright or any other intellectual property right.  It is DM policy to respond appropriately to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"), including by removing or disabling access to material claimed to be the subject of infringing activity.  If you are an owner of intellectual property who believes that your intellectual property has been improperly posted or distributed via the Platforms, please notify us immediately by email to legal@docmagic.com, or by regular email to: 1800 213th Street, Attn: Legal Department, Torrance, CA 90501.  DMCA notices must be in legal@docmagic.com writing and must include all of the following information:

 

•      A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;

 

•      A description of the copyrighted work that you claim has been infringed;

 

•      A description of where the material that you claim is infringing is located on the Platforms;

 

•      Your address, telephone number, and email address and all other information reasonably sufficient to permit DM to contact you;

 

•      A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

 

•      A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

THIRD PARTY LINKS

There may be links that make it easier for you to connect to third party sites or that will let you access the Platforms from third party sites. Linked third party sites are not under the control of DM, and DM is not responsible for the contents of any linked site or any link contained in the linked site. Existence of links to other third party sites is not an endorsement by DM in favor of such site or the products or services contained in any linked site. If you choose to access a third party website linked to any of the Platforms, you do so entirely AT YOUR OWN RISK. Concerns regarding services or resources or links should be directed to the provider of the third party service or resource. DM at all times reserves the irrevocable right to rescind consent for any link to any third party website through the Platforms and to take any legal action it deems appropriate.

 

CONFIDENTIALITY

From time to time in the course of using the Platforms and Materials, you may have access to certain confidential information of DM ("DM Confidential Information"). For clarity, as used in these Terms, "DM Confidential Information" means all nonpublic or proprietary information disclosed by or on behalf of DM, otherwise learned by you in the course of using the Platforms and Materials, which is (i) designated as confidential or proprietary; or (ii) a reasonable person would conclude is confidential or proprietary.  DM Confidential Information includes, but is not limited to, the following (whether furnished before or after you start using the Platforms and Materials, whether disclosed orally, electronically, in writing or visual inspection of the Platforms and Materials): (a) graphics and content documentation, proprietary software applications, program modules, routines and subroutines, file layouts, displays, diagrams, graphs, sketches, algorithms, design specifications, annotations, documentation, flowcharts, coding sheets, drawings, models, source code and object code, together with all new versions, releases, updates, modifications, improvements, enhancements, patches and bug fixes; (b) information relating to DM's know-how, processes, techniques, practices, methodologies, policies and procedures, manuals and handbooks, testing, research and development; (c) information regarding acquiring, protecting, enforcing and licensing DM’s proprietary rights including intellectual property rights; (d) information relating to DM’s employees, partners and customers; and (e) any and all copies, reproductions, notes, analyses, compilations, studies, interpretations and summaries of any of the above items, regardless of who prepares them. Notwithstanding the foregoing, DM Confidential Information does not include any information that you can demonstrate by documentary evidence (1) is or has become publicly available through no wrongful act or omission attributable to you; (2) is or becomes rightfully known to you through a third party who is not subject to a restriction on disclosure; or (3) is independently developed by you without the use of or reference to DM Confidential Information.

 

You agree not to use DM Confidential Information for any purpose other than as required to use the Platforms and Materials in accordance with these Terms (the "Purpose"). You agree to hold all DM Confidential Information in strict confidence using at least the degree of care you would use to protect your most sensitive information and in no event less than a reasonable degree of care.  You agree to not publish, disseminate, or otherwise disclose, or permit or facilitate the disclosure of, any DM Confidential Information to any third party.  To the extent required for the Purpose as authorized by DM in writing, you may disclose DM Confidential Information only to your employees, directors, officers and agents ("Representatives") who have a need to know such information to carry out the Purpose and are bound to obligations of confidentiality (either by written agreement or Applicable Law) which are no less restrictive than those set forth in these Terms.  You agree to be responsible for all acts and omissions of your Representatives. Any copy, extract, portion, or derivative of DM Confidential Information shall be identified as belonging to DM and prominently marked "confidential."

 

JURISDICTIONAL ISSUES

The Platforms are controlled and operated by DM from its corporate headquarters in Torrance, California, and are not intended to subject DM to the laws or jurisdiction of any state, country, or territory other than that of California and of the United States of America.  DM does not represent or warrant that the Platforms or other Materials, or any aspect thereof, are appropriate or available for use in any particular jurisdiction. Those who choose to access the Platforms or the Materials do so on their own initiative and at their own risk, and are responsible for complying with local laws. DM may limit the availability of the Platforms and Materials to any person, geographic area, or jurisdiction it chooses, at any time in DM’s sole discretion.

 

INDEMNITY

You agree to indemnify, defend and hold harmless DM and each of the DM Parties from and against any third party claim, suit, demand or action for damages arising from: (a) your use or modification or alteration of the Platforms or Materials; (b) any Harmful Code transmitted by you; and (c) any breach of these Terms by you or your Representatives.  DM shall have the right to be represented by, and have counsel appear, at its own expense, with respect to any such claim.  You may not, without the prior consent of DM, enter into any settlement if such settlement:  (i) includes any payment of monetary damages by DM or injunctive relief binding on DM, (ii) includes an admission of liability by DM, or (iii) does not include a release of DM from all further liability with respect to such claim.

 

LIMITATION ON DAMAGES

IN NO EVENT SHALL DM OR ANY DM PARTIES BE LIABLE TO YOU IN CONNECTION WITH YOUR USE OF THE PLATFORMS OR MATERIALS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES OR LOSSES, OR FOR ANY LOSS OF PROFITS, REVENUE, INVESTMENT OR BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE, INCREASED COST OF BUSINESS, LOSS OF SALES, OR LOSS OF OR INACCESSIBLE DATA OR INFORMATION, BREACH OF DATA OR DATA SECURITY.  IN NO EVENT SHALL THE TOTAL LIABILITY OF DM (AND THE DM PARTIES) TO YOU IN CONNECTION WITH YOUR USE EXCEED THE GREATER OF (A) THE TOTAL FEES ACTUALLY PAID BY YOU TO DM, IF ANY, DURING THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL EVENT WHICH GIVES RISE TO THE LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100). THIS PARAGRAPH STATES YOUR SOLE REMEDY FOR FINANCIAL HARM.

 

THE PURPOSE OF EACH PROVISION OF THESE TERMS THAT PROVIDES A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS RELATING TO YOUR USE OF THE PLATFORMS AND MATERIALS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DM. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S).

 

MODIFICATION AND TERMINATION

These Terms become effective as soon as you click "I AGREE."  DM may at any time: (i) modify or discontinue any part of the Platforms or Materials; (ii) charge, modify or waive fees required to use the Platforms and Materials; or (iii) offer opportunities to some or all users of the Platforms and Materials.  DM reserves the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted at www.docmagic.com.  Each time you use the Platforms, you should review the current Terms. You can determine when these Terms were last revised by referring to the "LAST UPDATED" date at the bottom. Your continued use of any of the Platforms or Materials will indicate your acceptance of the current Terms. DM reserves the right, without notice and at its sole discretion, to suspend or terminate your account or your use of the Platforms and to block or prevent future access to and use of the Platforms if you violate any of these Terms, and for any or no reason at all.  Upon any such suspension or termination, you must immediately stop using the Platforms and erase the original and all copies, complete or partial, of any of the Materials (including all DM Confidential Information) from your devices, and, if requested, certify in writing to DM that all such items have been erased.

 

You agree that DM shall not be liable to you or any third party for any termination of your access to the Platform. Upon termination, all provisions of these Terms which by their nature are intended to survive termination (including, without limitation, all obligations of confidentiality, ownership, limitations of liability and indemnities) shall survive such termination.

 

GOVERNING LAW AND ARBITRATION

You and DM agree that in the event of any claim, dispute or controversy (whether in contract, tort or otherwise) arising out of, relating to or connected in any way with your use of any of the Platforms or Materials or the breach, enforcement, interpretation or validity of these Terms (each, a "Claim") will be resolved exclusively by final and binding arbitration, except as otherwise provided in these Terms. Arbitration is more informal than a lawsuit and uses a neutral arbitrator to resolve the claim rather than a jury.  Arbitration is subject to limited review by courts but arbitrators can award the same damages and relief that a court can award. YOU AND DM ARE EACH WAIVING THE RIGHT TO A JURY TRIAL. Notwithstanding the foregoing, each of the parties may bring an action in court to enjoin infringement or other misuse of a party’s intellectual property.

 

You and DM agree to use good faith efforts to resolve any claims within thirty (30) days following written notice by either party that a claim has arisen. If the parties cannot resolve the claim within such time period, then the claim shall be determined by a single arbitrator through Judicial Arbitration Mediation Services ("JAMS"), in the County of Los Angeles.  Alternatively, if it is determined or these Terms provide that a claim should not proceed through arbitration, each of you and DM agree that the claim will be resolved exclusively in federal court in the County of Los Angeles (the "Venue") and waive any objections as to personal jurisdiction in the Venue.  The then-current JAMS Comprehensive Arbitration Rules and Procedures shall apply. All fees charged by JAMS shall be split equally by you and DM, but each party shall be responsible for its own attorneys’ fees.  If the claim is valued at $10,000 or less, you may choose to have the arbitration conducted solely on the basis of the documents submitted to the arbitrator.  You hereby acknowledge and agree that DM may effect service of process by email to the address provided by you to DM in connection with setting up your account. Each of the parties waives the right to personal service.

 

You and DM agree that all claims will be governed by the laws of the State of California, without regard to conflict of laws principles and the Federal Arbitration Act (FAA).  Any claims must be raised within one (1) year after the event which gives rise to the claim and may only be brought in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.  You agree that, to the extent permitted by law: (A) any and all claims will be resolved individually in the Venue designated above, without resort to any form of class action; and (B) any judgments and awards will be limited to actual third-party, out-of-pocket costs incurred, but in no event will attorneys’ fees be awarded or recoverable.

 

MISCELLANEOUS

These Terms, including policies and information linked from or incorporated herein, constitute the entire agreement between you and DM with respect to your use of any of the Platforms and Materials and supersede all prior or contemporaneous communications, agreements, and proposals with respect to such use. No provision of these Terms may be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of, or delay in exercising any right or remedy under these Terms shall operate as a waiver or estoppel of any right, remedy, or condition. If any provision of these Terms is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not bef4 affected or impaired. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without DM’s express prior written consent.  DM will not be responsible for failure to fulfill any obligation due to causes beyond our control. Nothing in these Terms is intended to confer on any third party any benefit or any right to enforce these Terms.

 

COMMUNICATION

If you desire to communicate with or otherwise provide notice to DM for any reason, your communication must be in writing, delivered by email (deemed delivered on the date DM sends a responsive email) to the address for DM posted in the "Settings" of the Platform, with a copy to legal@docmagic.com, or regular mail (deemed delivered on the third business day) to:  1800 213th Street, Attn: Legal Department, Torrance, CA 90501. You acknowledge that DM may contact you at the email address provided by you when you create your account, as the same may be modified by you periodically by updating your profile page or by email to DM as provided in this paragraph.

 

LAST UPDATED:  February 6, 2020

 

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