1. Execution of Agreements Using Emagia’s Services. You hereby agree to and accept the following terms and conditions regarding documents, contracts, and agreements (individually an “agreement” and collectively “agreements”) executed using Emagia’s Services:
1.1 Electronic Signatures. You are not required to use or accept electronic agreements or signatures provided by Emagia’s Services. If you do not wish to use the Services, notify the parties that are sending you credit application forms and/or other documents via the Services (your “counterparties”) that you wish to sign using paper documents and do not use the Services to execute any documents sent to you by your counterparties.
1.2 Consent. Each time you sign agreements using the Services provided by Emagia, you affirmatively consent to conducting electronic business transactions and using electronic signatures via the Services. You also confirm your ability to access information in the form that will be used to provide the information that is subject to your consent. Your consent applies only to the transaction that gave rise to the obligation to provide the agreement. If you are a consumer, you may have the right or option to have the agreement provided or made available on paper or in non-electronic form. You hereby agree that Emagia has no obligation to provide or make available on paper or non-electronic forms any agreements to which you are a party and that your counterparty is solely responsible for providing any agreements on paper or in non-electronic form. After signing a document using the Services, Emagia will provide you with the option to print a paper copy of the document, and no fee is charged for this copy. Prior to signing an agreement, Emagia does not provide an option for you to receive the agreement in paper or non-electronic form.
1.3 Withdrawing Consent. If you wish to withdraw the consent to have the agreement provided or made available in an electronic form and to use electronic signatures, you must stop using the Services and notify any parties that are sending you documents via the Services that you wish to sign using paper documents. You agree that your counterparties, rather than Emagia, are solely responsible for notifying you of any conditions, consequences (which may include termination of your relationship with your counterparties), or fees in the event of such withdrawal. Any decision to consent or not consent to current or future transactions does not have an effect on the legality of documents that you have previously executed using Emagia’s Services. If you wish to update information needed for Emagia to contact you, you may (a) change the email address where you would like to receive electronic communications by sending an email to firstname.lastname@example.org that contains both your old and new email address or (b) login to your thecreditapplication.com account and change your email address in your account settings.
1.4 Requirements. The hardware and software requirements for access to and retention of the agreements are as follows:
- (a) Operating Systems: Windows 2000, Windows XP, Windows Vista, Mac OSX;
- (b) Browsers: Internet Explorer 8 or above, Mozilla Firefox 3 or above, Google Chrome 4 or above, Safari 3 or above; and
- (c) Screen Resolution: 800 x 600 minimum.
Emagia will provide you notice of the new requirements for hardware and software requirements for access to and retention of your agreements and will require your consent or confirmation in a manner that reasonably demonstrates that you can access information in the electronic form that will be used to provide the information that is the subject of the consent.
1.5 Document Retention. All of your documents and templates are archived indefinitely while your paid subscription remains active and account remains in good standing. If you cancel your subscription or your account is terminated in accordance with the provisions herein, your agreements and templates may be deleted or rendered not accessible via the Services. When all counterparties have signed an agreement that you have signed using the Services, you will receive the executed agreement in HTML Format emailed to you (unless this option has been disabled in the document sender’s account). You agree that neither Emagia nor its vendors, suppliers or licensors are responsible for any damages you may suffer or incur resulting from information or communication that is blocked by a spam filter and that you are solely responsible for implementing appropriate safeguards to secure your phone, computer or equipment and to back-up your information stored on each. You may login to your thecreditapplication.com account, created for you after you have executed an agreement, to access and download your agreement for a limited time in the future. You are solely responsible for retaining your agreements, and you hereby agree that you are solely responsible for retaining any agreements that you execute using the Services for the periods required by any applicable statute of limitation and that Emagia shall have no liability for not retaining any agreements for such periods.
1.6 Emagia Not a Party; Performance by Parties. Emagia provides the Services and the Site as a location for parties to execute agreements between or among parties other than Emagia. When you and any one or more other parties executes an agreement through the Services, only you and your counterparties have rights and duties with respect to such agreement. Emagia is not a party to any such agreement, and Emagia shall not have any liability or responsibility whatsoever with respect to the validity or enforceability of any such agreement, the breach by any party in the performance of its obligations under that agreement, any dispute over payments made or credit card information provided in any such agreement, or your failure to obtain the outcome you were seeking to achieve by entering into any such agreement. If you provide sensitive information such as social security number, tax id, bank account number, credit card or other payment related information when submitting a document, such information may be accessible to other parties to the document, and other parties may misuse such information. Emagia is not responsible for the usage of any information by other parties and Emagia will not have any obligation to perform any services other than the Emagia Services. The sole customer support function provided by Emagia is to answer questions regarding the functions of the site, and Emagia will not have any obligation to provide any customer support with respect to the performance by any party to any agreement executed using Emagia.
1.7 Disputes Under Agreements. If any dispute arises between or among any parties to an agreement that has been executed using Emagia, then Emagia shall not have any responsibility or liability whatsoever with respect to that dispute. Without limiting the generality of the foregoing, Emagia will not have any obligation to assist in mediating any such dispute, to locate any other party to the agreement, or otherwise to facilitate a resolution of the dispute.
1.9 Disclaimer Re Legal Advice. ANY STATEMENTS MADE BY EMAGIA ABOUT THE VALIDITY OF ELECTRONIC CONTRACTS AND THE SIGNATURE LINES OF AGREEMENTS THAT ARE ELECTRONICALLY EXECUTED ARE FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY, ARE GENERAL IN NATURE, AND ARE NOT INTENDED, AND SHOULD NOT BE CONSTRUED, AS LEGAL ADVICE. NOT ALL AGREEMENTS THAT ARE IN ELECTRONIC FORM OR THAT ARE ELECTRONICALLY SIGNED ARE LEGALLY ENFORCEABLE. EMAGIA HEREBY DISCLAIMS ANY RESPONSIBILITY FOR ENSURING THAT AGREEMENTS THAT ARE ELECTRONICALLY EXECUTED THROUGH EMAGIA ARE VALID OR ENFORCEABLE UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY PARTICULAR STATE, OR ANY OTHER JURISDICTION. IF YOU WISH TO VERIFY THE VALIDITY OR ENFORCEABILITY OF ANY AGREEMENT YOU PLAN TO EXECUTE OR HAVE EXECUTED USING EMAGIA, THEN YOU SHOULD CONSULT A LICENSED ATTORNEY FOR APPROPRIATE LEGAL ADVICE.
1.10 Taxes. You agree that you and each other party to an agreement that you execute through Emagia are responsible for (a) determining the amount of sales, use or other taxes that you may owe as a result of any such agreement, and (b) collecting, reporting, and remitting any sales, use or other taxes required under applicable law. You agree that Emagia has no responsibility to collect, report or remit sales, use or any other applicable taxes in connection with your agreements, and further agree to indemnify, defend and hold Emagia harmless from any and all claims, demands, damages, awards, fines, costs, expenses and liability in any way associated with foregoing.
1.11 Privacy. YOU ACKNOWLEDGE, CONSENT AND AGREE THAT EMAGIA SHALL, AND HEREBY AUTHORIZE EMAGIA TO, COLLECT AND PROVIDE TO OTHER PARTIES INFORMATION THAT IS REASONABLY NECESSARY TO AUTHENTICATE YOUR IDENTITY FOR PURPOSES OF ENTERING INTO AN AGREEMENT USING EMAGIA, AND TO COMMUNICATE WITH YOU OR ANOTHER PARTY TO THE AGREEMENT REGARDING SUCH AGREEMENT AND ANY ISSUES THAT MAY ARISE IN CONNECTION WITH THAT AGREEMENT. SUCH INFORMATION MAY INCLUDE, BUT IS NOT LIMITED TO, YOUR NAME, EMAIL ADDRESS, INTERNET PROTOCOL ADDRESS, SYSTEM PREFERENCES, BROWSER PREFERENCES, INSTALLED PLUG-INS, LOCAL STORAGE PREFERENCES, SCREEN RESOLUTION, LOCAL TIMEZONE, BIOMETRIC SIGNATURE, FONT LISTINGS, AND USER AGENT STRING. YOU HEREBY AGREE THAT EMAGIA SHALL HAVE NO RESPONSIBILITY, OBLIGATION OR LIABILITY WITH RESPECT TO THE COLLECTION OF SUCH INFORMATION, THE DISCLOSURE OF SUCH INFORMATION TO ANY OTHER PARTY, OR ANY COLLECTION, USE OR DISCLOSURE OF SUCH INFORMATION BY ANY OTHER PARTY.
1.12 Release. You hereby waive and release Emagia and its parents, sister companies, subsidiaries, affiliates, service providers, other users, distributors, licensors, officers, directors and employees (collectively the “Emagia Released Parties”) from all, and agree not to assert against any of the Emagia Released Parties any, claims, costs, damages or expenses arising from or relating to any of the matters described in the foregoing Sections 1.1 through 1.11, including but not limited to any such claims, costs, damages or expenses arising from or relating to any dispute with one or more other parties to any agreement executed using Emagia. The release under this Section 1.12 is intended to be a general release of all claims, including both known and unknown claims, and if you are a California resident, then you also hereby you waive any rights that you may have under California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
2. Content; Copyright and Trademark Notice. All media, software, text, images, graphics, user interfaces, music, videos, photographs, trademarks, logos, artwork and other content on the Site, made available through the Services, and within the Solutions (collectively, but not including your posted content, “Content”), including but not limited to the design, selection, arrangement, and coordination of such Content on the Site, is owned or licensed by or to Emagia, and is protected by copyright, trade dress, and trademark laws, and various other intellectual property rights laws. Except as expressly provided in these Terms, no part of the Site and no Content may be reproduced, recorded, retransmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose, without Emagia’s prior express written consent. Except as expressly provided herein, you are not granted any rights or licenses to any patents, copyrights, trade secrets, trade dress, rights of publicity or trademarks with respect to any of the Content, and Emagia reserves all rights not expressly granted hereunder. Use of the Site or Services for purposes of competitive intelligence is strictly prohibited and a violation of these Terms. If you access the Site and replicate on a competitive service any of the Site’s features, any portion of the Site’s user interface, or any other intellectual property displayed on the Site, you agree to pay damages, including but not limited to, liquidated damages in the amount of all revenue earned by your competitive service after the date material was copied from the Site.
2.1 Emagia, and all the other marks, custom graphics, icons, logos and service names on the Site are the trademarks and service marks of Emagia or its licensors. The use of any such trademark or service mark without Emagia’s express written consent is strictly prohibited.
2.2 It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice, document, contract, or other content available through Emagia. Emagia generally does not pre-screen, monitor or edit the content posted by other users. However, Emagia and its agents have the right, at their sole discretion, to remove at any time any content that, in Emagia’s judgment, does not comply with these Terms or is otherwise harmful, objectionable or inaccurate. Emagia is not responsible for any failure or delay in removing such content. Emagia shall have the right, but not the obligation, to monitor the content of Emagia, including postings and communications, to determine compliance with these Terms and any operating rules established by Emagia and to satisfy any law, regulation or authorized government request.
2.3 No part of the Site or these Terms is intended or shall be construed as legal advice. Neither Emagia nor any of its content providers shall be liable for any errors or omissions in the content or for any actions taken in reliance thereon.
3. Registration; Customer Accounts; Use of Site, Services and Solutions. You are responsible for maintaining the confidentiality of your account information, including your password, and for all activity that occurs under your account. You agree to notify Emagia immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by Emagia or any other user of the Site, Services or Solution(s) due to someone else using your password or customer account.
3.1 Use of Passwords. You may not use anyone else’s password or customer account at any time or attempt to gain unauthorized access to the Site, Services or Solution(s). You agree to provide us with accurate, current and complete information about yourself and your billing/payment information as prompted by the registration process or any conversion and redemption process. You may update any of your account information by following the procedures set forth on the Site or Solution(s). You may not use any automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, probe, index, manipulate, test or monitor any portion of the Site, Services or Solution(s) or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site, Services or Solution(s) or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site or Solution(s). You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site, Services or Solution(s) or any of the systems or networks comprising or connected to the Site, Services or Solution(s).
3.2 Termination of Access. Emagia reserves the right at any time to time to modify or discontinue the Service (or any part thereof) with or without notice. Emagia shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service. You also agree that Emagia may, in its sole discretion and without prior notice to you, terminate your access to the Site, Services or Solution(s) and your account for any reason, including without limitation: (a) any attempts to overcome any software security features limiting use of or protecting any Content, (b) discontinuance or material modification of the Site or any service offered on or through the Site, Services or Solution(s), (c) any suspected or actual violation of these Terms, (d) suspected or actual copyright infringement, (e) unexpected operational difficulties, (f) inactivity for more than 3 months, or (g) requests by law enforcement or other government agencies. You agree not to use the Site, Services, or Solutions to collect credit card numbers, unless you enable and utilize the Stripe payment processing integration for all credit card collection in documents. Without limiting any of its rights or remedies, if Emagia determines that you have directly or indirectly attempted or committed fraudulent activity with respect to Emagia, Emagia may immediately suspend or terminate your account and charge your credit card on file to recover any damages and costs incurred in connection with such fraudulent activity. In addition, any such fraudulent activity is a criminal offense and violators will be prosecuted to the fullest extent of the law. You agree that Emagia will not be liable to you or to any third party for termination of your account and/or access to the Site, Services or Solution(s). For purposes of clarity, upon any termination of your account for any reason, all licenses granted to you hereunder shall immediately terminate, but all other portions of these Terms shall survive such account termination.
3.3 Payment for Services. If you are:
- (a) Premium and Enterprise Users. A user of the Premium Edition or Enterprise Edition of the Services, then you will pay charges for the Services in accordance with the pricing provided to you when you subscribe for the Services. Credit application thresholds are based on number of individual credit application documents sent or received.
- (b) Other Users. Any other user of the Services, then you will pay charges for the Services at the time and in the periodic amounts that are published on the Emagia website from time to time. Such charges may be paid by credit card or such other means as is permitted under terms and conditions published from time to time on the Emagia website. Charges for the Services are subject to change upon 30 days notice. For annual or yearly subscriptions, your credit card will be charged on or around the annual anniversary of your subscription. If you cancel your annual subscription, such cancellation will be effective at the end of the subscription year then in effect and no future annual fee shall be charged. To cancel your monthly or annual subscription, you must send your request in writing to email@example.com, and the request must be sent from the email address associated with the owner of the account. You will receive a cancellation confirmation via email from Emagia support. If you do not receive such confirmation, your request was not received nor processed.
5. Consent To Our Communication With You By E-Mail. By establishing an account with us, you grant permission for Emagia to contact you at your e-mail address.
5.1 Opting Out. To stop receiving our marketing emails, send an e-mail to us at support@Emagia.com or follow the opt-out procedures set forth in such marketing emails. Please note that Emagia will still need to communicate with you via email regarding your transactions and other account related issues, and that these emails are not marketing emails and are not eliminated through the foregoing opt-out procedures.
5.2 Use of Content and Communicating with other Users. By delivering to Emagia copies of agreements or other documents to be executed by use of the Service or other content, you are authorizing Emagia to imprint thereon your signature and that of other parties who provide us such authorization, and to distribute copies of the executed version of such agreement to you and such other parties. Emagia will not make any other use of such agreements or other documents without your prior written authorization.
6. Feedback and Publicity. You agree that feedback you provide concerning Emagia will be truthful and accurate. You agree that you will not use profanity, vulgar expressions, or any obscenity in your feedback comments. You agree that you will not provide any feedback that could be considered defamatory or that violates the privacy, intellectual property, or other rights of any third party. You agree that Emagia may publicly post your feedback without any payment or other obligation to you. You agree that Emagia may edit your feedback in any way that Emagia sees fit and that Emagia may remove your feedback at any time. Once you have submitted feedback, it may not be altered by you. You agree that any comments you make regarding Emagia via email to us, on our contact form, or on our forums may be used as testimonials on the site and in our advertising without any payment or other obligation to you. You grant Emagia the right to include you and/or the company or organization you represent, including publicly available logos or photographs, as a customer on the Emagia website and blog, and in email newsletters and other promotional materials. You can deny Emagia this right by submitting a written request via email to support@Emagia.com, requesting to be excluded from promotional material. Confirmation of such denial (via reply email) must be received prior to subscribing to the Emagia service for this exclusion to be effective. Should you come to be or already be included in Emagia promotional material, as a result of any prior subscription where you did not request exclusion from promotional material, you can at any point in time, submit a written request via email to signup@Emagia.com to have Emagia remove your name from promotional material. Upon receipt of such request, Emagia will remove any reference to you or your company from such promotional material within 30 days and make no further reference to you or your company.
8. Disclaimer of Warranties. THE SITE, SERVICES, SOLUTION(S), CONTENT, DATA, AND INFORMATION ARE PROVIDED “AS IS.” EMAGIA EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE SITE, THE SERVICES OR SOLUTION(S), INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR QUALITY OF DATA AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, NON-INFRINGEMENT, OR LACK OF VIRUSES.
You agree that neither Emagia nor its vendors, suppliers or licensors are responsible for any damages you may suffer or incur resulting from: (a) anything done or not done by another person; (b) providing or failing to provide the Services, including, but not limited to, deficiencies or problems with internet coverage (including interrupted service; (c) web content or information accessed on our Site or while using our Service; (d) any inaccurately rendered agreement, (e) information or communication that is blocked by a spam filter, (f) damage to your computer, phone or any computer or equipment connected to your phone, or damage to or loss of any information stored on your computer, phone, or equipment from your use of the Services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video or audio; or (i) things beyond the control of Emagia, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism or government orders or acts. You should implement appropriate safeguards to secure your computer, phone, or equipment and to back-up your information stored on each.
10. Policy to Terminate Privileges for Copyright Infringement. Pursuant to 17 U.S.C. 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), Emagia will terminate the account of any customer, or vendor who uses his or her privileges to unlawfully transmit copyrighted material without a license, valid defense or fair use privilege to do so. After proper notification by the copyright holder or its agent to Emagia and later confirmation through court order or an admission by the customer that an account has been an instrument of unlawful infringement, Emagia will terminate the infringing customer’s account. Emagia in its sole discretion also may terminate a customer’s account privileges prior to that time when Emagia has conclusively confirmed that infringement has occurred. In addition, pursuant to 17 U.S.C. 512(c), Emagia has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. Emagia respects the intellectual property of others and we ask you to do the same. If you believe that your copyright has been infringed through the thecreditapplication.com or Emagia.com website, please contact “Legal Department” via mail at: Attn: Legal Department, Emagia Corporation, 4701 Patrick Henry Dr. #20, Santa Clara, CA.
11. Miscellaneous. No delay or failure to take action under these Terms shall constitute any waiver by Emagia of any provision of these Terms. If any provision of these Terms is invalid or unenforceable under applicable law, then the remainder of such provision and these Terms shall be enforced to that maximum extent permitted by applicable law, and the remaining provisions of these Terms will continue in full force and effect. These Terms are personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate these Terms shall be null and void. Emagia may freely assign these Terms without consent or notice. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of Emagia and you and its and your respective successors and assigns. Any claim under these Terms must be brought within one (1) year after the cause of action arises. These Terms shall be governed by the laws of the State of California without regard to or application of any conflict of laws provisions. You acknowledge that these Terms have been entered into, and performance under these Terms shall occur, in the City of Santa Clara, California, and therefore hereby consent to the exclusive jurisdiction of the Superior Court in and for Santa Clara County, the State of California, and the United States Federal District Court in and for the Northern District of California. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled on an individual basis in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (JAMS) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Santa Clara, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. These Terms constitute the complete and exclusive agreement between Emagia and you with respect to the subject matter hereof and supersede all prior oral or written understandings, communications or agreements not specifically incorporated herein.