DOCUSIGN SERVICES TERMS AND CONDITIONS v161215
If you started a subscription to, or free trial of, DocuSign Signature or DocuSign Transaction Rooms before December 15, 2016 go here to review your terms.
Last updated on December 15, 2016.
These DocuSign Services Terms and Conditions govern access to and use of DocuSign Services (as defined in Section 1) by you the Customer, as well as any individual or entity (including employees, agents, and contractors) you allow to access and use the DocuSign Services. These Terms and Conditions, your Subscription Plan and any applicable Service Schedules and attachments form your agreement (collectively the “Agreement”) with DocuSign and govern the use of DocuSign Services. As a condition of accessing the DocuSign Services, you accept this Agreement. Specific services terms, product details and any applicable license and/or subscription terms will be set forth below in the applicable Service Schedule(s), which will apply to use of the DocuSign Services subject to this Agreement.
This Agreement, WHICH INCLUDES A MANDATORY ARBITRATION REQUIREMENT, A TIME LIMIT ON BRINGING CLAIMS, AND A WAIVER OF RIGHT TO PURSUE CLAIMS AS A CLASS ACTION OR REPRESENTATIVE IN SECTION 11.7 BELOW, constitutes a binding legal agreement between you and DocuSign, Inc. (“DocuSign,” “we,” “us,” and “our”). Please read these terms carefully and print a copy for reference.
If you use DocuSign Signature, you accept the terms of the DocuSign Signature Schedule below.
If you use Digital Transaction Rooms, you accept the terms of the Digital Transaction Rooms Schedule below.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED OR AUTHORIZED TO USE THE DOCUSIGN SERVICES.
If you are a direct competitor to DocuSign, you may not access or use the DocuSign Services without DocuSign’s explicit, advance, written consent, and then only for the purposes authorized in writing.
You agree to receive electronically all communications, agreements, and notices that we provide in connection with any DocuSign Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the DocuSign web site or through any DocuSign Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing.
We may modify this Agreement or any additional terms, which are relevant to a particular DocuSign service, to reflect changes in the law or to the DocuSign Services. We will post the revised Agreement on the Site (as defined in Section 1, below). PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE DOCUSIGN SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT. You agree that we shall not be liable to you or to any third party for any modification of the Agreement.
“Account” means a unique account established by Customer to enable its Authorized Users to access and use the DocuSign Services.
“Authorized User” means one individual natural person, whether an employee, business partner, contractor or agent of Customer who is registered by Customer to use the DocuSign Services. An Authorized User must be identified by a unique email address and user name and two or more persons may not use the DocuSign Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the DocuSign Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in this Agreement, and is accessing or using the DocuSign Services solely to support Customer’s internal business purposes.
“Customer” means the individual or entity that purchases a Subscription Plan, creates an Account, accepts this Agreement (whether on behalf of itself or a legal entity) and is responsible for ensuring that Authorized Users comply with this Agreement. Customer may be referred to in this Agreement as “you” and “your.”
“Customer Data” means any content, eDocuments, materials, data and information that Customer or its Authorized Users enter into the DocuSign Services or data that is generated from Customer’s use of the DocuSign Services (e.g. Customer-specific reports), including, but not limited to, any personal data about Customer, Authorized Users, envelope signers, room participants and information contained in eDocuments. Customer Data shall not include any component of the DocuSign Services or material provided by or on behalf of DocuSign.
“Documentation” means DocuSign’s then-current technical and functional documentation for the DocuSign Services as made generally available by DocuSign.
“DocuSign Services” means the services that can be accessed on the Site by Customer pursuant to the Agreement.
“eDocument” refers to a contract, notice, disclosure, or other record or document deposited into the DocuSign Services by Customer for processing.
“Service Schedule” means the service-specific terms and conditions applicable to a particular DocuSign service, including DocuSign’s exhibits and attachments accompanying such schedule.
“Site” means the web site of DocuSign located at DocuSign.com, and other select domains owned by DocuSign.
“Subscription Plan” means a paid plan offered on the Site that enables registration of an Account for the use of a DocuSign Service. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access.
“Subscription Term” means the period of effectiveness of the Subscription Plan, as specified in Section 6 below.
“Term” means the period of effectiveness of this Agreement, as specified in Section 6 below.
2. USAGE AND ACCESS RIGHTS
2.1 Right to Use. Subject to the terms and conditions of this Agreement, DocuSign will provide the DocuSign Services in accordance with your Subscription Plan and DocuSign grants to you a limited non-exclusive, non-transferrable right and license during the Term, solely for your internal business purposes and in accordance with the Documentation, to: (a) use the DocuSign Services; (b) implement, configure and permit your Authorized Users to access and use the DocuSign Services; and (c) access and use the Documentation.
2.2 Restrictions. You shall not, and shall not permit others to, do the following with respect to the DocuSign Services:
(a) use the DocuSign Services or allow access to it in a manner that circumvents contractual usage restrictions or that exceeds your authorized use or usage metrics set forth in this Agreement or your Subscription Plan;
(b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the DocuSign Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;
(c) access or use the DocuSign Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the DocuSign Services or allow access by a direct competitor of DocuSign;
(d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the DocuSign Services or technologies except as expressly permitted elsewhere in this agreement or by law, unless and then only to the extent permitted by applicable law without consent;
(e) use the DocuSign Services or Documentation in a way that (i) violates or infringes upon the rights of a third party, including those pertaining to contract, intellectual property, privacy or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene; or
(f) interfere with or disrupt the integrity, operation or performance of the DocuSign Services or interfere with the use or enjoyment of it by others by, among other things, using it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or circumvent or disclose the user authentication or security of the DocuSign Services or any host, network, or account related thereto or use any aspect of the DocuSign Services other than those specifically identified on the Site for a Subscription Plan.
2.3 Suspension of Access. DocuSign may suspend any use of the DocuSign Services, or remove or disable any Account or content that DocuSign reasonably and in good faith believes violates this Agreement. DocuSign will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless DocuSign reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the DocuSign Services or a third party. Under circumstances where notice is delayed, DocuSign will provide the notice if and when the related restrictions in the previous sentence no longer apply.
2.4 Free Trial and Special Offers
(a) If you register for a free trial, promotional offer or other type of limited offer for use of DocuSign Services (“Free Trial”), you may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into this Agreement and are legally binding. This Section 2.4 (Free Trial and Special Offers) supersedes any conflicting provisions of the Agreement.
(b) The version of the DocuSign Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT CUSTOMER ENTERS INTO THE DOCUSIGN SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS CUSTOMER: (i) PURCHASES A SUBSCRIPTION PLAN TO DOCUSIGN SERVICES THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (ii) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CONFIGURATIONS MADE DURING THE FREE TRIAL TO A SUBSCRIPTION PLAN THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, AND IN SUCH SITUATION ANY CUSTOMER DATA OR CUSTOMIZATION WILL BE PERMANENTLY LOST.
(c) Notwithstanding any other provision of this Agreement, including without limitation the warranties described in Section 7 (Warranties and Disclaimers) or any Service Schedule, during a Free Trial the DocuSign Services are provided “AS IS” and “as available” without any warranty that may be set forth in this Agreement.
3.1 Customer Data. Customer Data processed using the DocuSign Services is and will remain, as between you and DocuSign, owned by you.
3.2 DocuSign Services. DocuSign or its licensors own all right, title and interest in and to any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the DocuSign Services and Documentation, any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder.
3.3 Feedback. You hereby assign to DocuSign all right, title, and interest in and to any recommendations, suggestions, enhancement requests or other feedback provided by you to DocuSign concerning the DocuSign Services (“Feedback”), and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to you.
3.4 Third Party Products or Services. Customer may choose to use products or services that are provided or supported by third parties (“Third-Party Services”) for use with DocuSign Services. Third-Party Services are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third Party Services and Customer, and DocuSign assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services.
4. CUSTOMER DATA, PERSONAL DATA AND DATA PROTECTION
4.1 Customer Data. You shall be responsible for Customer Data that you provide or use through your use of the DocuSign Services. Further, you are solely responsible for determining the suitability of the DocuSign Service for your business or organization and complying with any regulations, laws, or conventions applicable to Customer Data and your use of the DocuSign Service.
4.2 Personal Data. You warrant that your collection and use of any personal data contained in Customer Data complies with all applicable data privacy and protection laws, rules, and regulations. You authorize DocuSign to process such personal data in accordance with the applicable data protection laws, rules, and regulations.
5. FEES AND PAYMENT TERMS
5.1 Subscription Plan. The prices, features, and options of the DocuSign Services depend on the Subscription Plan you select as well as any changes instigated by you. DocuSign does not warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without notice.
5.2 No Refunds. You will timely pay DocuSign all fees associated with your Subscription Plan, Account or use of the DocuSign Services, including, but without limitation, by Authorized Users. Your payments are non-refundable except as expressly provided in this Agreement. Charges for pre-paid Subscription Plans will be billed to you in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears.
5.3 Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to your payment method. BY COMPLETING YOUR REGISTRATION FOR A SUBSCRIPTION PLAN, YOU AUTHORIZE DOCUSIGN OR ITS AGENT TO CHARGE YOUR PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE DOCUSIGN SERVICES. The Authorization continues through your Subscription Term and any Renewal Term (as defined in Section 6.2, below) until you cancel as set forth in Section 6 of this Agreement.
5.4 Late Fees & Collection Costs. If DocuSign does not receive payment from your payment method, you agree to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by DocuSign to collect any amount that is not paid when due. DocuSign may accept payment in any amount without prejudice to DocuSign’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to DocuSign may not be withheld or offset by you for any reason against amounts due or asserted to be due to you from DocuSign.
5.5 Invoices. DocuSign will provide billing and usage information in a format we choose, which may change from time to time. DocuSign reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. You agree to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If you do not bring such problems/discrepancies to our attention within thirty (30) days, you agree to waive your right to dispute such problems or discrepancies.
5.6 Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. You agree that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from your payment card issuer until submission of the accumulated charge(s).
5.7 Benefit Programs. You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Benefits") through a business or government agreement with us (a "Business Agreement"). Any and all such Benefits are provided to you solely as a result of the corresponding Business Agreement and such Benefits may be modified or terminated without notice. If you use the DocuSign Services and a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to a Business Agreement with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.
5.8 Tax Responsibility. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on DocuSign’s net income (collectively, “Taxes”). You shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the DocuSign Services. Taxes shall not be deducted from the payments to DocuSign, except as required by law, in which case you shall increase the amount payable as necessary so that after making all required deductions and withholdings, DocuSign receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.. You hereby confirm that DocuSign can rely on the name and address set forth in your registration for a Subscription Plan as being the place of supply for sales tax purposes. DocuSign’s and your obligations under this Section 5.8 (Tax Responsibility) shall survive the termination or expiration of this Agreement.
6. TERM AND TERMINATION
6.1 Term. The Term of this Agreement begins on the date you accept it and continues until your Subscription Plan expires or your use of the DocuSign Services ceases (including as a result of termination in accordance with this Section 6), whichever is later.
6.2 Subscription Term and Automatic Renewals. Our Subscription Plans automatically renew unless they specify otherwise. If you purchase a Subscription Plan it will automatically renew, unless, prior to the end of the current Subscription Term: (a) you terminate your Account; (b) you set your Account to not auto-renew; (c) DocuSign declines to renew your Subscription Plan, or (d) this Agreement is otherwise properly terminated as expressly permitted herein. Each renewal period is a “Renewal Term.” You authorize us to collect the then-applicable fees and any taxes for a Renewal Term. Subscription Plan fees and features may change over time and we may recommend a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. If you accept the new Subscription Plan, its terms and conditions with this Agreement will apply in the Renewal Term and thereafter.
6.3 Termination by Customer. You may terminate your Account at any time upon ten (10) days’ advance written notice to DocuSign. If you wish to terminate, you must provide notice by using the DocuSign Support Center or via email at [email protected]. Section 5.2 notwithstanding, if you terminate your annual Subscription Plan within the first thirty (30) days of the Subscription Term, you may submit a written request to DocuSign for a refund of the fees paid by you to DocuSign. DocuSign has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first 30 days of the relevant Subscription Plan.
6.4 Default; Termination by DocuSign. You will be in default of this Agreement if: (a) you fail to timely pay any amount owed to us or an affiliate of ours; (b) you or an Authorized User associated with your Account breach any provision of this Agreement or violate any published policy applicable to the DocuSign Services; (c) you are or become subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the DocuSign Services by you (or your Authorized Users) creates legal risk for DocuSign or presents a threat to the security of the DocuSign Services or DocuSign’s customers. If you are in default, we may, without notice to you: (a) suspend your Account and use of the DocuSign Services; (b) withhold refunds and terminate your Account; (c) charge reactivation fees in order to reactivate your Account; and (d) pursue any other remedy available to us.
6.5 Effect of Termination. If this Agreement expires or is terminated for any reason: (a) you will pay to DocuSign any amounts that have accrued before, and remain unpaid, as of the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of your liabilities to DocuSign that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to you with respect to the DocuSign Services and intellectual property will immediately terminate; (d) DocuSign’s obligation to provide any further services to you under this Agreement will immediately terminate, except any such services that are expressly to be provided following expiration or termination of this Agreement; and (e) the provisions of Sections 2.2, 2.4, 3, 4,5.2, 5.4, 5.8, 6.5, 7.2, 8, 9, 10 and 11 will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to the Agreement.
7. WARRANTIES AND DISCLAIMERS
7.1 Customer Warranties. You hereby represent and warrant to DocuSign that: (a) you have all requisite rights and authority to use the DocuSign Services under this Agreement and to grant all applicable rights herein; (b) you are responsible for all use of the DocuSign Services associated with your Account; (c) you are solely responsible for maintaining the confidentiality of your Account names and password(s); (d) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (e) you agree that DocuSign will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (f) you will use the DocuSign Services for lawful purposes only and subject to this Agreement; (g) any information you submit to DocuSign is true, accurate, and correct; and (h) you will not attempt to gain unauthorized access to the System or the DocuSign Services, other accounts, computer systems, or networks under the control or responsibility of DocuSign through hacking, cracking, password mining, or any other unauthorized means.
7.2 Disclaimer. THE DOCUSIGN SERVICES, DOCUMENTATION, AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND DOCUSIGN: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE DOCUSIGN SERVICES, DOCUMENTATION OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE DOCUSIGN SERVICES, DOCUMENTATION OR SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DOCUSIGN TO ANY THIRD PARTY. USE OF THE DOCUSIGN SERVICES, DOCUMENTATION AND SITE ARE AT YOUR SOLE RISK. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you. In that event, such warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law.
8. CUSTOMER INDEMNIFICATION OBLIGATIONS
You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to: (a) use of the DocuSign Services by you or your Authorized Users; (b) violation of this Agreement by you or your Authorized Users; (c) infringement of any intellectual property or other right of any person or entity by you or your Authorized Users; or (d) the nature and content of all Customer Data processed by the DocuSign Services.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, DOCUSIGN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
9.2 Cap on Damages. UNDER NO CIRCUMSTANCES WILL DOCUSIGN'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR OR YOUR AUTHORIZED USERS’ USE OF THE DOCUSIGN SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO DOCUSIGN FOR THE DOCUSIGN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
9.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by DocuSign to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.
9.4 Jurisdictional Limitations.
9.4.1 Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).
9.4.2 DocuSign’s potential liability to you if you are domiciled in Germany is limited as described in Section 11.13 below.
10.1 “Confidential Information” means any trade secrets or other information of DocuSign or Customer, whether of a technical, business, or other nature (such as DocuSign's software or your eDocument(s), that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure. Confidential Information includes the terms and conditions of this Agreement, as well as pricing plans or discounts, and the features and functionality of the Services. Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.
10.3 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
10.4 Ownership. Recipient acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information. Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
10.5 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 10 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain. Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 10, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 10.
11.1 Relationship. At all times, the parties are independent contractors, and are not the agents or representatives of the other. This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce this Agreement. There are no third-party beneficiaries to this Agreement. You must not represent to anyone that you are an agent of DocuSign or is otherwise authorized to bind or commit DocuSign in any way without DocuSign’s prior written authorization.
11.2 Export Control Laws. You acknowledge that the DocuSign Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that DocuSign makes available to its customers (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”). You represent and warrant that you and your Authorized Users: (a) are not located in, under the control of, or a national or resident of an embargoed country; (b) are not a prohibited end user under Export Laws; and (c) will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or does business. You are solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the DocuSign Services. You shall advise DocuSign in advance in the event you propose use of the Excluded Data that requires DocuSign to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where you intend to use the DocuSign Services. Upon being advised of such a requirement, DocuSign may at its sole discretion: (a) terminate your Account; (b) obtain such licenses, permits, and/or approvals as may be required; or (c) modify this Agreement such that additional licenses, permits, and/or approvals are no longer required to be obtained by DocuSign.
11.3 Third Party Content. We may provide, or third parties may provide, links to other third-party web sites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites. DOCUSIGN IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.
11.4 Assignability. You may not assign your rights or obligations under this Agreement without DocuSign’s prior written consent. If consent is given, this Agreement will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. DocuSign may freely assign its rights, duties, and obligations under this Agreement.
11.5 Notices. Except as otherwise permitted by this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) DocuSign Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site for DocuSign, with a copy, in the case of DocuSign, to [email protected]. Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section 11. Notices are deemed given upon receipt if delivered using DocuSign Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
11.6 Force Majeure. Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
11.7 Mandatory Arbitration, Waiver of Class Actions.
(a) General. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE DOCUSIGN SERVICES, DOCUMENTATION OR THE SITE, INCLUDING WITHOUT LIMITATION FOR THE breach, termination, enforcement, interpretation or validity thereof, including ALSO the determination of the scope or applicability of this agreement to arbitrate, WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR, RATHER THAN IN COURT. The arbitration shall be administered by the Judicial Arbitration and Mediation Services http://www.jamsadr.com (”JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Either party may initiate the arbitration. The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Payment of all fees will be governed by JAMS Rules. The Parties shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Agreement and, with the exception of disclosure to attorneys, accountants, auditors, and other legal or financial advisors, neither Party shall disclose such information or decision to any other person unless required to do so by law.
(b) No Class Actions. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION OR ON A REPRESENTATIVE BASIS. You acknowledge and agree that you and DocuSign are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and DocuSign otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a court decides that this subsection is not enforceable or valid, then subsections (a) through (d) of this Section 11.7 will be null and void, but the remainder of this Agreement will still apply.
(c) Smaller Claims. If your claim(s) total is less than US $5,000.00, then: (i) DocuSign will reimburse filing fees up to a maximum of US $1,500.00, unless the arbitrator determines that your claims are frivolous; (ii) DocuSign will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous; and (iii) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by in-person hearing.
(d) Provisional Remedies. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.
11.8 Governing Law & Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, the parties agree that DocuSign is the proponent of this Agreement. Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.
11.9 Language and Translations. DocuSign may provide translations of this Agreement or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
11.10 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
11.12 Entire Agreement. This Agreement, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between these parties regarding the DocuSign Service(s) provided under this Agreement. This Agreement supersedes and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the DocuSign Service(s) under this Agreement) with respect to the subject matter hereof and apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. DocuSign hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on the terms and conditions of this Agreement as offered by DocuSign. Except as explicitly permitted in this Agreement, no modification or amendment of this Agreement shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Plan; (b) any attachments or appendix(ices) to the Service Schedule(s); (c) the Service Schedule; and (d) these Terms and Conditions.
11.13 Limitations on Liability for Customers Domiciled in Germany.
(a) DocuSign shall be fully liable for intentional and gross negligence, as well as for any damages arising from injury to life, body or health caused by DocuSign or any DocuSign Group Company.
(b) In the case of slight negligence, DocuSign shall be liable only for breach of a material obligation (“Cardinal Duty”). A Cardinal Duty in the meaning of this Section 11.13 is an obligation, the fulfillment of which is essential to the performance of this agreement and on the fulfillment of which the contracting party may therefore rely.
(c) In accordance with Section 11.13(b) above, DocuSign shall not be liable for any lack of economic results, loss of profit or indirect damages.
(d) Liability in the meaning of Sections 11.13(b) and 11.13(c) above is limited to typical, foreseeable damages.
DocuSign Signature Service Schedule
This Schedule was last updated on December 15, 2016. Unless otherwise defined in this Service Schedule, capitalized terms will have the meaning given to them in the Agreement.
“DocuSign Signature” means the on-demand electronic signature DocuSign Service, which provides online display, certified delivery, acknowledgement, electronic signature, and storage services for eDocuments via the Internet.
“Envelope” means an electronic record containing one or more eDocuments consisting of a single page or a group of pages of data uploaded to the System.
“EU Directive” means Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
“System” refers to the software systems and programs, the communication and network facilities, and the hardware and equipment used by DocuSign or its agents to provide the DocuSign Signature service.
“Transaction Data” means the metadata associated with an Envelope (such as transaction history, image hash value, method and time of Envelope deletion, sender and recipient names, email addresses and signature IDs) and maintained by DocuSign in order to establish the digital audit trail required by DocuSign Signature.
2. ADDITIONAL USAGE LIMITATIONS AND CUSTOMER RESPONSIBILITIES
2.1 DocuSign’s provision of the DocuSign Signature service is conditioned on Customer’s acknowledgement of and agreement to the following:
(a) DocuSign Signature facilitates the execution of eDocuments between the parties to those eDocuments. Nothing in this Schedule may be construed to make DocuSign a party to any eDocument processed through DocuSign Signature, and DocuSign makes no representation or warranty regarding the transactions sought to be effected by any eDocument;
(b) Between DocuSign and Customer, Customer has exclusive control over and responsibility for the content, quality, and format of any eDocument. eDocuments stored by DocuSign on the System are maintained in an encrypted form, and DocuSign has no control of or access to their contents;
(c) 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. DocuSign is not responsible for determining whether any particular eDocument is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; or (iii) whether it can be legally formed by electronic signatures;
(d) DocuSign is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, DocuSign is not responsible for providing Customer’s eDocuments or other documents to third parties;
(e) 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 consumer consent to the method of contracting 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. DocuSign does not and is not responsible to: (i) determine whether any particular transaction involves a “consumer;” (ii) furnish or obtain any such consents or determine if any such consents have been withdrawn; (iii) provide any information or disclosures in connection with any attempt to obtain any such consents; (iv) provide legal review of, or update or correct any information or disclosures currently or previously given; (v) provide any such copies or access, except as expressly provided in the Documentation for all transactions, consumer or otherwise; or (vi) otherwise to comply with any such special requirements; and
(f) Customer undertakes to determine whether any “consumer” is involved in any eDocument presented by its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such eDocuments or their formation.
3. eDOCUMENT STORAGE AND DELETION
3.1 Sending, Storage. During the Term DocuSign will send and store eDocuments per the terms of the Subscription Plan. However, DocuSign may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use of DocuSign Signature. Customer may retrieve and store copies of eDocuments for storage outside of the System at any time during the Term of the Subscription when Customer is in good financial standing under this Agreement, and may delete or purge eDocuments from the System at its own discretion.
3.2 Uncompleted eDocuments. DocuSign may, at its sole discretion, delete uncompleted eDocuments from the System immediately and without notice upon the earlier of: (a) expiration of the Envelope (where Customer has established an expiration for such Envelope, not to exceed 365 days); or (b) expiration of the Term of Subscription. DocuSign assumes no liability or responsibility for a party’s failure or inability to electronically sign any eDocuments within such a period of time.
3.3 Deletion. DocuSign may delete an Account and Customer Data, including without limitation eDocuments (whether complete or not), upon the expiration of the Term of Subscription or termination as described in Section 6 of the DocuSign Services Terms and Conditions.
3.4 Retention of Transaction Data. DocuSign may retain Transaction Data for as long as it has a business purpose to do so.
4. INFORMATION SECURITY AND PERSONAL DATA
4.1 Customer Responsibilities. DocuSign Signature provides Customer with certain features and functionalities that customer may elect to use, including the ability to retrieve and delete eDocuments in the System. Customer is responsible for properly (a) configuring DocuSign Signature; (b) using and enforcing controls available in connection with DocuSign Signature (including any security controls); and (c) taking such steps, in accordance with the functionality of DocuSign Signature, that Customer deems adequate to maintain appropriate security, protection, deletion, and backup of Customer Data, which include controlling the management of Authorized Users’ access and credentials to DocuSign Signature, controlling Customer Data that is Processed by DocuSign Signature, and controlling the archiving or deletion of eDocuments in the System. Customer acknowledges that DocuSign has no obligation to protect Customer Data, including Personal Data (defined below), that Customer elects to store or transfer outside of DocuSign Signature (e.g., offline or on-premise storage).
4.2 Information Security. DocuSign shall employ physical, electronic, and managerial procedures to safeguard and help prevent unauthorized access to your information. DocuSign shall choose these safeguards based on the sensitivity of the information that we collect, process and store and the current state of technology.
4.3 International Data Transfers. If Customer is established in the European Economic Area or Switzerland ("EEA"), it acknowledges and agrees that DocuSign may transfer Customer Data, including without limitation Personal Data, outside of the EEA for processing. Upon Customer’s explicit written request, DocuSign may execute Standard Contractual Clauses approved by the European Commission for the benefit of the Customer ("Customer SCCs") in order to ensure adequate protection for the Personal Data in accordance with the requirements of Articles 25 and 26 of the EU Directive. DocuSign represents that it has applied for approval of its Binding Corporate Rules (“BCRs”) for Processors. Customer acknowledges that DocuSign has applied for approval for BCRs for Processors and that, with effect from the date that DocuSign's BCRs are approved by the competent data protection authority and notice from DocuSign all transfers of Personal Data made by or to DocuSign under this Agreement shall be conducted under, and in full compliance with, DocuSign's BCRs, and any applicable Customer SCCs shall immediately terminate. The terms “Personal Data”, “Process/Processing”, “Controller”, “Processor”, “Subprocessor”, and “Data Subject” will have the meanings ascribed to them in the EU Directive.
5. SUBSCRIPTION PLANS & PRICES
5.1 The prices, features, and options of DocuSign Signature depend on the Subscription Plan selected by Customer as well as any changes instigated by Customer. For example: (a) if you add Authorized Users, DocuSign will charge the applicable subscription amount for each additional Authorized User; or (b) if you send more Envelopes than are included in your Subscription Plan, DocuSign may charge for additional envelopes or assign you to a new Subscription Plan. You may also purchase optional services on a periodic or per-use basis. DocuSign may change the prices for or alter the features and options in a particular Subscription Plan without notice.
SERVICE SCHEDULE for DOCUSIGN TRANSACTION ROOMS
This Service Schedule was last updated on December 15, 2016.
“DocuSign Transaction Rooms” means the DocuSign Service for transactions management, which provides online display of Transaction Rooms, management of eDocuments, people, and tasks, and storage services for eDocuments via the Internet.
“Rooms Transaction Data” means the metadata associated with a Transaction Room as determined by the Customer or its Account (such as transaction activity history, and date and timestamps of activities) and maintained by DocuSign to provide DocuSign Transaction Rooms.
“Transaction Room” means the online workspace for transactions management as created by the Customer in the DocuSign Transaction Rooms service.
2. DOCUSIGN TRANSACTION ROOMS
2.1 During the Term, and subject to compliance with the terms of this Service Schedule, Customer and its Authorized Users will have the right to create and/or manage DocuSign Transaction Rooms within its Account when Customer registers via the method provided by DocuSign. Customer and its Authorized Users will have the right to create and delete Transaction Rooms, upload, remove, and view content, data or eDocuments shared in DocuSign Transaction Rooms.
2.2 Account. Customer is solely responsible for (a) the configuration of the Account; (b) the operation, performance, and security of Customer’s equipment, networks, and other computing resources used to connect to DocuSign Transaction Rooms; (c) ensuring all Authorized Users exit or log off from DocuSign Transaction Rooms at the end of each session; (d) maintaining the confidentiality of the Account, user identification information and passwords used in conjunction with DocuSign Transaction Rooms; and (e) all uses of the Account by Customer and its Authorized Users. DocuSign reserves the right to suspend DocuSign Transaction Rooms if Customer misuses or otherwise shares login information among Authorized Users or with third parties. Customer will notify DocuSign immediately of any unauthorized access to or use of its Account or any other breach of security. DocuSign will not be liable for any loss that Customer may incur as a result of an unauthorized party using its password or Account due to Customer’s failure to protect its login information.
2.3 Storage and Deletion. Customer may retrieve its stored eDocuments at any time during the Term. DocuSign will maintain all Transaction Rooms and store their associated eDocuments during the Term, by default. Customer may close or delete its Transaction Rooms or delete any eDocuments within such Transaction Rooms at any time during the Term.
3. ADDITIONAL CUSTOMER RESPONSIBILITIES
3.1 DocuSign’s provision of the DocuSign Transaction Rooms service is conditioned on Customer’s acknowledgement of, and agreement to the following:
(a) Customer is responsible for all activities that occur in DocuSign Transaction Rooms accessible under Customer’s Account and for ensuring that use of DocuSign Transaction Rooms complies with the Agreement;
(b) Customer has exclusive control over and responsibility for the content, quality, and format of any transaction facilitated through DocuSign Transaction Rooms. Nothing in this Service Schedule may be construed to make DocuSign a party to any transaction processed through DocuSign Transaction Rooms, and DocuSign makes no representation or warranty regarding the transactions sought to be effected by Customer’s use of DocuSign Transaction Rooms;
(c) Customer is solely responsible for its reliance on any content, advice, opinion, statement, suggestion or other information (“Third-Party Content”) offered by third parties that is shared or distributed through DocuSign Transaction Rooms. Any such Third-Party Content presented or disseminated through DocuSign Transaction Rooms solely represents the view of the respective author or provider of such content, who remains solely liable for the accuracy or reliability thereof;
(d) Customer is responsible for determining how long any eDocuments are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, Customer is responsible for and liable to produce any eDocuments made available in Transaction Rooms to any third parties; and
(e) Customer is responsible for complying with any consumer protection or similar laws or regulations that may impose special requirements with respect to electronic transactions involving one or more “consumers”, such as (among others) requirements that the consumer consent to the method of transacting 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.