PLEASE READ THESE TERMS CAREFULLY! BY USING ANY OF THE PLATFORMS, YOU AGREE THESE TERMS WILL APPLY TO YOUR USE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR PLATFORMS. ANY USE BY YOU OF OUR PLATFORMS WILL BE SUBJECT AT ALL TIMES TO THESE TERMS AND ALL APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING WITHOUT LIMITATION, ANY PRIVACY OR NOTARIAL LAWS (COLLECTIVELY, “APPLICABLE LAW”). IF, AT ANY TIME, YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY STOP USING OUR PLATFORMS.
IMPORTANT NOTICE: These Terms contain a binding arbitration provision and waiver of the right to a jury trial and the right to bring a class action. Please refer to "Governing Law and Arbitration"
INTRODUCTION AND SCOPE
These Terms comprise a legally binding agreement between you and DM. These Terms apply to your access to and use of any of our Platforms, including any products, services and solutions made available to you on or through the Platforms or through email transmissions to you from DM, and any related documentation, content, features and functions (collectively "Materials"). If you are using the Platforms and Materials on behalf of any other person or any legal entity ("Your Business") (whether as an employee, business partner, contractor or agent), these Terms apply equally to any and all such use by you, Your Business or anyone accessing the Platforms under your account ("Your Users"). Each of you and the Business shall be jointly and severally liable for all use of the Platforms and Materials under your account(s).
There are many different participants in the transactions occurring on our Platforms, such as but not limited to, borrowers, signers, witnesses, lenders and financial institutions, settlement agents, title agents, title insurers, notaries, and the like (collectively, “Participants”). If you are a Participant in a transaction on one of our Platforms, you may be a party to a separate agreement executed by you and DM (each, a “DM Master Agreement”) which governs your use of the Platforms. Further, you may be a party to one or more agreements with other Participants (each, a “Third Party Agreement”), which sets forth your rights and obligations with respect to those Participants in connection with the transactions occurring on our Platforms.
You acknowledge and agree that none of the Participants, regardless of whether a Participant has received training or certification from DM, will be deemed to be an agent of DM or otherwise acting on behalf of DM, unless such agency relationship is expressly defined in a DM Master Agreement. Further, you acknowledge and agree that DM’s responsibilities and obligations are limited to providing you with access to the Platforms as set forth in the Limited Warranty Section below and subject to the Excluded Events section below. DM is not responsible for the legality or enforceability of any transaction occurring on the Platforms or for complying with, or causing any Participant to comply with, any term or provision contained in any Third Party Agreement to which DM is not a party.
LICENSE AND ACCESS
Subject to the provisions of these Terms, and payment by you of all applicable fees owed to DM for the 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, solely for your personal or internal business 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
If you have been granted access to the Platforms pursuant to a DM Master Agreement, whether executed by you or a third party Participant for your benefit, your use of the Platforms will be governed by such DM Master Agreement. In the event of any conflicting, inconsistent or supplemental terms or provisions, the DM Master Agreement will prevail over these Terms, provided that such DM Master Agreement is valid and enforceable.
UNLAWFUL OR PROHIBITED ACTIVITIES
Your use of the Platforms and Materials is conditioned upon your compliance with the following rules of conduct. By using any of the Platforms, you agree 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 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, without their express consent.
• Sell, resell, transfer, license, distribute or otherwise exploit any portion of the Platforms or Materials for any commercial purpose, including any use on a timesharing or service bureau basis.
• 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 or password.
You represent, warrant and covenant to DM that: (i) you have the ability to enter into and be bound by these Terms (i.e. you are 18 years of age or older, have adequate mental capacity and are not a citizen, national or resident of any embargoed or sanctioned country or territory) and are not a prohibited user under Applicable Law; (ii) you have the power and authority to bind Your Business; and (iii) you, Your Business and Your Users will use the Platforms and Materials solely in compliance with these Terms and all Applicable Laws.
One or more of the Platforms may allow you to submit, post, upload, or otherwise make available (collectively, "Upload") content such as data, documents, questions, public messages, ideas, product feedback, comments and other content (collectively, "User Content") that may or may not be viewable by Your Users and third party users. If you Upload any User Content, unless otherwise agreed by DM in a separate signed writing, you hereby grant us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit third party users to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Upload; (b) the User Content you Upload is truthful and accurate; and (c) use of the User Content you Upload does not violate these Terms or any Applicable Laws. You acknowledge and agree that neither DM nor its designees has any obligation to pre-screen User Content, but DM reserves the right in its sole discretion to reject, move, edit, or remove any User Content that is Uploaded to any Platform. You further acknowledge and agree that DM does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content and your reliance on the accuracy, completeness, or usefulness of User Content.
USE OF ESIGNATURE TECHNOLOGY
You may use the Platforms to facilitate electronic signatures for certain User Content uploaded by you ("User Documents"). By using the Platforms in connection with electronic signatures, you hereby acknowledge and agree as follows:
- The Platforms facilitate the execution of User Documents by the designated parties to those User Documents. Nothing in these Terms may be construed to make DM a party to any User Document and DM makes no representation or warranty regarding the transactions sought to be effected by any User Document.
- You will have exclusive control over and responsibility for the content, quality, and format of any User Document.
- Certain types of agreements and documents may be excepted from electronic signature laws (e.g., wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. DM is not responsible or liable to determine whether any particular User Document (a) complies with Applicable Law; (b) is subject to an exception to applicable electronic signature laws, or subject to any particular agency promulgations; or (c) whether it is capable of forming a legal contract by electronic signatures.
- DM is not responsible for determining how long any User Documents are required to be retained or stored under any Applicable Law or legal or administrative agency processes. Further, DM is not responsible or liable for producing any User Documents or other User Content to any third parties.
- Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more "consumers," such as (among others) requirements that the particular consumer provide affirmative consent to the use of electronic records and/or signatures, and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. Except as otherwise expressly agreed by you and DM a DM Master Agreement, DM is not responsible for: (a) determining whether any particular transaction involves a "consumer;" (b) furnishing or obtaining any such consents or determining if any such consents have been withdrawn; (c) providing any information or disclosures in connection with any attempt to obtain any such consents; (d) providing legal review of, or updating or correcting any information or disclosures currently or previously given; (e) providing any such copies or access in all transactions, consumer or otherwise; or (f) complying with any such special requirements.
- You are responsible for determining whether any "consumer" is involved in any User Document presented for electronic signature, and, if so, complying with all requirements imposed by Applicable Law on such User Documents or the formation of a valid contract in general.
- Each of Your Users is deemed to have authority to provide DM with and accept from DM any required authorizations, requests, or consents on your behalf.
- You are solely responsible for the accuracy and appropriateness of instructions given by you or Your Users to DM in relation to the collection of electronic signatures, including without limitation, instructions provided during account setup or maintained in your profile.
USE OF REMOTE ONLINE NOTARIZATION (RON) TECHNOLOGY
You may use one of our Platforms to facilitate performance of a unique notarial act using RON technology during which a User Document is electronically executed by at least one signer and notarized by a notary (each, a “RON Session”). By using our Platforms in connection with a RON Session, you hereby acknowledge and agree as follows:
- DM is not responsible for scheduling or completing any RON Session or ensuring that any RON Session is conducted in accordance with Applicable Law.
- The audio-video feed for each Participant in a RON Session is recorded. By using the RON technology, you hereby consent to the recording of your audio-video feed for each RON Session (each a “RON Recording”). You further consent to the recording on behalf of each person who appears on your audio-video feed during a RON Session (each a “Recorded Party”). It is your responsibility to ensure that no person appears on, can be seen or heard in, or otherwise participates in your audio-video feed for whom you are not authorized to provide consent.
- You hereby further consent, on behalf of yourself and each Recorded Party, to the use and disclosure of the RON Recording by DM for any purpose related to the operation of the Platforms and the performance of DM’s obligations to Participants including, without limitation, the following: (a) performing any recordkeeping requirements dictated by Applicable Law; (b) complying with any request or requirement of any federal, state or local regulatory agency; and (c) allowing any Participant to perform, effectuate, service, administer, process, enforce and otherwise manage a transaction. You also acknowledge and agree that the RON Recording may be accessible by third parties other than Participants, such as, but not limited to, federal and state regulators of Participants and transactions, government-sponsored enterprise investors (e.g., Fannie Mae or Freddie Mac), and mortgage assignees, and you hereby consent to the provision of such access.
- As part of a RON Session, you may be asked to verify your identity, which may include providing identification credentials or other information. DM may also utilize third-party service providers (“TPPs”) to facilitate identity verification, including for knowledge-based authentication (“KBA”), which is a method of verifying a person’s identity by analyzing both publicly-available and privately-provided data sources. TPPs may use or rely on information provided by a Participant or otherwise made available by public or private sources, which may be incorrect, inaccurate, or incomplete. You acknowledge and agree that DM is not responsible or liable for any error, omission, or inaccuracy resulting from the information or processes used by TPPs, including without limitation, KBA, to verify your identity, or any failure of such identity verification procedure.
- On behalf of yourself and each Recorded Party, you hereby grant a license to DM, on a worldwide, irrevocable, nonexclusive and perpetual basis, to use and disclose any name, image, likeness and/or voice depicted in your audio-video feed in a RON Recording (“Name and Likeness”), solely in the form captured by the RON Recording, without manipulation or extraction from the RON Recording, for any purpose that DM is permitted to use the RON Recording pursuant to these Terms.
If you are a notary and you use one of our Platforms to perform notarial acts, you hereby specifically acknowledge and agree, and, as applicable, represent, warrant and covenant, as follows:
- Commission. You have been properly commissioned as a notary public (“Commission”) by a state, jurisdiction, or territory of the United States (“Jurisdiction”), and your Commission authorizes you to perform a RON Session in accordance with Applicable Law. Throughout the entirety of each RON Session, your Commission is and will remain valid and current in your Jurisdiction. If required by Applicable Law, before using the applicable Platform, you are solely responsible for (i) notifying the applicable commissioning agency that you have selected our Platform for the performance of notarial acts; and (ii) ensuring the Platform meets all requirements under Applicable Law necessary for you to perform notarial acts. You will not use any of our Platforms to perform notarial services during any period in which your Commission is revoked, denied, suspended, or expired.
- RON Session. Before using our Platforms to perform any notarial services, you will ensure that you are adequately informed and have received all available training regarding conducting a RON Session on our Platforms. In connection with each RON Session, you are solely responsible for verifying the identities of the signers, creating a RON Recording (as defined above) and/or an eJournal (as defined below), exporting and storing such artifacts, all as required by Applicable Law. You will carry out each notarial act and each of your duties, responsibilities, and obligations to Participants arising therefrom in full compliance with Applicable Law. If, for any reason, you do not believe you can perform a notarial act for a given RON Session in accordance with Applicable Law, you will advise all Participants and will withdraw from the RON Session. As used in these Terms, an “eJournal” refers to a digital version of the traditional physical journal of a chronological record of entries a notary is required to create and maintain pursuant to Appliable Law (each, an “eJournal”).
- eJournal. You acknowledge and agree that, regardless of your use of the Platforms to create your eJournal, you are solely responsible for your eJournal and each eJournal entry created with respect to a RON Session in which you perform notarial acts including, without limitation: (a) ensuring the eJournal includes all information and data required by, and is formatted in accordance with, Applicable Law; (b) creating and maintaining a backup of the eJournal for the period required by Applicable Law; (c) responding to third-party requests for access to, or distribution of, any copies of the eJournal as permitted or required under Applicable Law; (d) exporting the eJournal within 90 days following completion of the RON session at which time it will no longer be available for download; and (e) complying with any recordkeeping requirements under Applicable Law after exporting the eJournal.
- RON Recording. You acknowledge and agree with respect to each RON Recording of a RON Session in which you perform notarial acts, you are solely responsible for the contents and maintenance of the RON Recording, including without limitation: (a) ensuring that the RON Recording includes all notarial and signatory acts, statements, and declarations required under Applicable Law; (b) ensuring the RON Recording is in a format permitted by Applicable Law; (c) creating and maintaining a backup of each RON Recording as required by Applicable Law; (d) responding to third-party requests for access to, or distribution of, any copies of any RON Recordings as permitted or required under Applicable Law; (e) exporting the RON Recording within 90 days following completion of the RON session at which time it will no longer be available for download; and (f) complying with any recordkeeping requirements under Applicable Law after exporting the RON Recording.
- Long-Term Storage of eJournal and RON Recording. Unless you enter into a DM Master Agreement and pay for one of DM’s long-term storage solutions, DM is not responsible for storing any eJournal or RON Recording for more than 90 days following completion of the RON Session. DM does not serve as legal custodian of these artifacts and assumes no ﬁduciary duties to you or any Participants with respect to such items.
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.
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 applicable 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 User Content 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.
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. DM HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY CONTRACT, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, SUITABILITY, 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 MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORMS OR MATERIALS (OR ANY USE THEREOF) WILL BE (i) PROVIDED WITH DUE CARE, SKILL OR DILIGENCE; (ii) UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS, IF ANY, WILL BE CORRECTED; (iii) FREE FROM HARMFUL CODE; OR (iv) ACCURATE, TIMELY, COMPLETE OR SECURE.
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 INTERRUPTIONS, 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 INTERRUPTION OF USE, 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 TPPs OR ANY OF THEIR PRODUCTS OR SERVICES MADE AVAILABLE TO YOU ON OR THROUGH THE PLATFORMS.
NOTHING ON THE PLATFORMS OR IN ANY MATERIALS SHOULD BE CONSTRUED AS LEGAL ADVICE. YOU ARE ADVISED TO SEEK APPROPRIATE LEGAL ADVICE BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION BASED ON INFORMATION AND MATERIALS PROVIDED VIA THE PLATFORMS, INCLUDING WITHOUT LIMITATION, RELIANCE ON ANY USER CONTENT OR MATERIALS PROVIDED ON THE PLATFORMS OR ANY SIGNATURES FACILITATED THROUGH THE PLATFORMS. 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.
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 and all present and future intellectual rights (including, but not limited to, patents, copyrights, trademarks, database rights, service marks and other proprietary rights of any type, whether registered or unregistered ("IP Rights"). You acknowledge and agree that you have no right in or license to any of DM’s IP Rights 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®, SMARTCLOSE®, SMARTREGISTRY™, and SMARTSAFE®. 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 MILLENNIUM 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 firstname.lastname@example.org, or by regular email to: 1800 213th Street, Attn: Legal Department, Torrance, CA 90501. DMCA notices must be in 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 sites outside of the Platforms that are made available by TPPS or that will let you access the Platforms from such 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 applicable TPPS providing the 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.
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, 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 IP 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, contractors and agents ("Your 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."
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 the U.S. 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.
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 access and use of the Platforms and Materials, or any or modification or alteration thereof; (b) any Harmful Code transmitted by you; (c) any violation of a third party’s IP Rights or other rights by you, Your Business, Your Representatives or Your Users (including any User Content any of them may Upload); and (d) any breach of these Terms or Applicable Law by you, Your Business, Your Representatives or Your Users. DM retains the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
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 INABILITY TO ACCESS DATA OR INFORMATION, OR BREACH OF 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, FOR THE USE OF THE PLATFORMS DURING THE SIX (6) MONTH PERIOD PRECEDING THE INITIAL EVENT GIVING 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).
These Terms become effective Immediately when you begin using any of the Platforms or the Materials. 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 on the DM Site. 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 fail to pay for such use as otherwise agreed with DM or 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 Platforms. 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.
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 be 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.
You agree that DM may send all communications, agreements, and notices to you relating to your use of the Platforms ("Communications"), via electronic means, including by e-mail, text, in-app notifications, or by posting on the DM Site or in the "Settings" of the applicable Platform. You agree that all Communications we provide electronically will satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner. Similarly, you may provide Communications to DM by email (deemed delivered on the date DM sends a responsive email) to the address for DM posted in the "Settings" of the applicable Platform, with a copy to email@example.com. In the alternative, you may send Communications to DM by regular mail (deemed delivered on the third business day) to: 1800 213th Street, Attn: Legal Department, Torrance, CA 90501. You agree to keep your account contact information current by updating your profile page in "Settings" of the applicable Platform or sending a Communication as provided in this paragraph.
LAST UPDATED: December 29, 2022